The December meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, December 12, 2006, at 10:00 AM, in Room 149 of the Capitol Annex. Senator Richard "Dick" Roeding, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Richard "Dick" Roeding, Co-Chair; Representative Tanya G Pullin, Co-Chair; Senators Alice Forgy Kerr and Joey Pendleton; Representatives James E Bruce, Jimmie Lee, and Jon David Reinhardt.
Guests: David Huddleston, Dennis W. Shepherd, Kentucky Department of Veteran's Affairs; Katie Dunnigan, Sandy Milburn, State Board of Elections; Bob McBeath, Auditor of Public Accounts; Beau Barnes, Kentucky Teacher's Retirement System; Doug Dowell, Laura Ferguson, Gary Morris, Angela Robinson, Finance and Administration Cabinet; Michael S. Rodman, C. Lloyd Vest II, Board of Medical Licensure; Mark Farrow, Wilbur Frye, Patrick Gilbert, Kentucky Department of Agriculture; Lona Brewer, John Lyons, Environmental and Public Protection Cabinet; Amy Barker, Department of Corrections; Chuck Stribling, Kembra Taylor, Department of Labor; John Forgy, Marc A. Guilfoil, Lisa Underwood, Kentucky Horse Racing Authority; Glenda Gordon, Gary Kupchinsky, Sheryl Meador, Elizabeth Caywood, Steve Davis, David Gayle, Amberlee Nickell, Cabinet for Health and Family Services.
LRC Staff: Dave Nicholas, Emily Caudill, Donna Little, Kara Daniel, Mark Matics, Laura Milam, Emily Harkenrider, Roslyn Hendrickson, and Ellen Steinberg.
The Administrative Regulation Review Subcommittee met on Tuesday, December 12, 2006 and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
OFFICE OF THE GOVERNOR: Kentucky Department of Veterans' Affairs: State Veterans' Nursing Homes
17 KAR 3:010. Calculation of resident charges at state veterans' nursing homes. Dave Huddleston represented the department. A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, and 6 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
17 KAR 3:020. Maximum charge for room and care at state veterans' nursing homes. A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 and 2 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
KENTUCKY STATE BOARD OF ELECTIONS: Forms and Procedures
31 KAR 4:140 & E. Submitting absentee ballot applications to the Department of Defense Interim Voting Assistance System (IVAS) by electronic mail. Sandy Milburn, assistant director, and Katie Dunnigan, General Counsel, represented the board.
In response to a question by Co-Chair Roeding, Ms. Dunnigan stated that the board would prepare for the General Assembly a summary of the absentee voting procedure for military personnel as established in this administrative regulation and 31 KAR 4:130.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correctly cite the federal statute to which the regulation relates; and (2) to amend Sections 2 and 3 to correct minor drafting errors. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Auditor of Public Accounts: Audits
45 KAR 1:030. Audits of sheriffs' tax settlements. Bob McBeath, attorney, represented the auditor’s office.
In response to questions by Senator Roeding, Mr. McBeath stated that the auditor’s office would be working with sheriffs, county fee officials, and fiscal courts to inform them of the changes from these three administrative regulations. The changes primarily affected the conduct of audits by staff of the auditor’s office.
45 KAR 1:040. Audits of county fee officials.
45 KAR 1:050. Audits of fiscal courts. A motion was made and seconded to approve the following amendment: to amend Section 4 to include the full cite of a federal statute in accordance with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendment was approved.
TEACHER'S RETIREMENT SYSTEM: General Rules
102 KAR 1:070. Application for retirement. Beau Barnes represented the system.
In response to a question by Representative Bruce, Mr. Barnes stated that this administrative regulation simplified the application process for retirement.
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Office of Income Taxation: General Administration
103 KAR 1:092. General Administration Policies and Circulars. Gary Morris, executive director, and Laura Ferguson, general counsel, represented the department.
In response to a question by Co-Chair Pullin, Mr. Morris stated that these former policies and circulars rescinded in these six administrative regulations were being replaced with administrative regulations that were reviewed by the subcommittee at a prior meeting or in this package of administrative regulations.
In response to a question by Co-Chair Roeding, Mr. Morris stated that the department had worked closely with the Kentucky Society of CPAs. After the administrative regulations were filed, the department met with the society and explained to them the reasons three of the administrative regulations were not amended after comments and the changes that were made to the other three administrative regulations. The explanations offered were acceptable to the society. The department hoped that the close working relationship with that organization would help the CPAs assist their clients in compliance with Kentucky’s tax laws.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct statutory citations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
103 KAR 1:130. Taxation of federal and certain non-federal obligations. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (2) to amend Sections 2, 3, 4, and 5 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Income Tax; Corporations
103 KAR 16:352. Corporation Income Taxes Policies & Circulars. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct statutory citations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
103 KAR 16:380. Finance Lease Property. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct statutory citations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 and 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Income Tax; Individual
103 KAR 17:140. Individual Income Tax - Reciprocity - Nonresidents. A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 to 6 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend Section 4 to specify that the reciprocity with Illinois, Michigan, Ohio, Virginia, West Virginia, and Wisconsin shall be in accordance with the specified reciprocity agreement for each state (that was already incorporated by reference). Without objection, and with agreement of the agency, the amendments were approved.
Corporation License Tax
103 KAR 20:035. Corporation License Tax Policies & Circulars. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Kentucky Board of Medical Licensure: Board
201 KAR 9:084. Fee schedule regarding physician assistants. Michael Rodman, assistant director, and Lloyd Vest, general counsel, represented the board.
In response to questions by Representative Lee, Mr. Rodman stated that the physician assistants’ committee recommended that the fees be increased. The recommendation came after a comparison of the fees charged by other states. Kentucky’s fees had not increased in several years. Mr. Vest stated that the committee had worked with the board’s staff to adjust the fees to adequately address the increased costs associated with new statutory requirements.
Representative Lee stated that agencies should provide appropriate justification for proposing a fee increase and should not increase a fee simply because a fee amount had not changed for many years.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Section 1 to correct a minor drafting error. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 9:307. Fee schedule regarding athletic trainers. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct a statutory citation; and (2) to amend Section 1 to correct a minor drafting error. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 9:400. Fee schedule regarding surgical assistants.
201 KAR 9:450. Fee schedule regarding acupuncturists.
Department of Agriculture: Structural Pest Control
302 KAR 29:050 & E. Commercial structural pest control and fumigation. Mark Farrow, chief of staff, and Patrick Gilbert, field supervisor, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct statutory citations; (2) to amend Sections 3 to 6, 8, and 10 to 15 to comply with the drafting and format requirements of KRS Chapter 13A; (3) to amend Section 12 to specify that the certified applicator shall give the school the required information in advance of an emergency notification as early as possible; and (4) to amend Section 15 to incorporate by reference the required renewal form. Without objection, and with agreement of the agency, the amendments were approved.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Division for Air Quality: Attainment and Maintenance of the National Ambient Air Quality Standards
401 KAR 51:210. CAIR NOx Annual Trading Program. John Lyons and Lona Brewer represented the division.
In response to questions by Co-Chair Pullin, Mr. Lyons stated that these three administrative regulations were intended to reduce the emissions of nitrogen oxides (NOx) and sulfur dioxides (SO2) from electric generating units. The NOx SIP Call that was established in 2004 corrected issues affecting one-hour ozone areas but did not go far enough according to clinical studies. Thus, the federal EPA has mandated the new programs for twenty-eight states, including Kentucky. Ms. Brewer stated that the state administrative regulations were no more stringent than the federal regulations and implemented the minimum requirements mandated by the federal agency. Kentucky was involved in the trading and carrying-forward of NOx and SO2 credits. Kentucky received seventeen million dollars from selling NOx allowances and also had traded SO2 credits to the federal government through the open market.
A motion was made and seconded to approve the following amendments: to amend Sections 3 and 4 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
401 KAR 51:220. CAIR NOx Ozone Season Trading Program.
A motion was made and seconded to approve the following amendments: to amend Sections 2, 3 and 4 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
401 KAR 51:230. CAIR SO2 Trading Program.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:040. Kentucky State Penitentiary. Amy Barker, assistant general counsel, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend Kentucky State Penitentiary Policy 13-02-03 to clarify the procedures for intersystem transfers of inmates; (2) to amend the STATUTORY AUTHORITY paragraph to delete a statutory citation; and (3) to amend Section 1 and various policies and procedures to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Department of Labor: Division of Occupational Safety and Health Compliance: Division of Occupational Safety and Health Education and Training: Occupational Safety and Health
803 KAR 2:600. Occupational safety and health standards for agriculture. Kembra Taylor, attorney, and Chuck Stribling, safety standards specialist, represented the department.
In response to questions by Representative Bruce, Mr. Stribling stated that this administrative regulation adopted the federal regulations for occupational safety and health for agriculture, including to allow field tests for rollover protective structures to keep the costs down. The changes reinstated the standards that were in effect prior to the federal government’s change in 1996. This administrative regulation was no more stringent than the federal regulation.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct a typographical error; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (3) to amend Sections 1, 2, and 4 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department of Public Protection: Kentucky Horse Racing Authority: Harness Racing
811 KAR 1:005. Definitions. Lisa Underwood, executive director, Mark Guilfoil, director of standardbred racing, and John Forgy, general counsel, represented the authority.
In response to questions by Co-Chair Pullin, Subcommittee staff and Mr. Forgy both stated that these administrative regulations were amended to address the pertinent concerns raised in the initial staff reviews and that the administrative regulations complied with the agency’s statutory authority.
In response to questions by Senator Roeding, Mr. Forgy stated that the penalties for violations of these administrative regulations were being established in a separate penalty administrative regulation that established three categories of penalties. The penalties will permit a licensee to pay a fine in mitigation of serving an imposed suspension that ranged from a few days to five years, based on the severity of the violations. Legislation that established the authority’s ability to impose fines outright (rather than in mitigation of the statutorily-imposed suspension penalties) would be helpful.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to insert a citation; (2) to amend Section 1 to insert definitions for "Judges" and "Private Treaty"; and (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
811 KAR 1:010. Associations. A motion was made and seconded to approve the following amendments: (1) to amend Section 5 to delete a reference to a contract with the Kentucky Harness Horseman's Association and reinsert a provision stating that certain proceeds may be distributed among money winning horses in proportion to their respective winnings; (2) to amend Section 8 to clarify who is allowed admission to the paddock; (3) to amend Section 11 to insert standards relating to when a breath analyzer test may be conducted and when a person may be charged with a violation of this section; and (4) to amend the TITLE, the NECESSITY, FUNCTION, AND CONFORMITY paragraph, and Sections 3, 5, 7, 8, and 11 through 15 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
811 KAR 1:015. Race officials. A motion was made and seconded to approve the following amendments: (1) to amend Section 4 to clarify requirements for racing officials; (2) to amend Section 15 to insert requirements for patrol judges previously listed in Section 22 of this administrative regulation, so that all the requirements are now in one section; (3) to amend Section 16 to clarify when starters shall have control of the horses; (4) to amend Section 19 to insert standards relating to identification of horses; and (5) to amend Sections 1, 4, 7, 8, 10 through 19, 21, and 23 through 26 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
811 KAR 1:020. Registration and identification of horses. A motion was made and seconded to approve the following amendments: (1) to amend Section 6 to insert standards relating to identification of horses; and (2) to amend Sections 3 through 9 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
811 KAR 1:215. Kentucky Standardbred Development Fund. A motion was made and seconded to approve the following amendments: (1) to amend Section 3 to clarify that the registration fee charged is for all cash breeding agreements for the breeding season; (2) to delete Section 7 and amend Section 8 to combine requirements regarding incorrect, false or misleading information, or failure to furnish documents relating to registration and renewal applications, and clarify penalties and standards for these actions; (3) to amend Section 20 to clarify that Fund purses consist of money from certain fees, including declaration fees; (4) to amend Section 30 to clarify that the Sires Stakes Nomination Form shall be filed with the nomination and sustaining fees; (5) to amend Section 32 to clarify nomination deadline requirements; (6) to add a form to the material incorporated by reference; and (7) to amend Sections 2 through 4, 6, 8, 12, 16, 20, 25, 30, 32, and 34 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
811 KAR 1:220. Harness racing at county fairs. A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 2 to delete requirements for establishing domicile from the Definitions section and reinsert them into Section 2; (2) to amend Section 7 to clarify deadlines for certain fees; (3) to amend Section 18 to clarify standards for drug tests given in accordance with 811 KAR 1:090; and (4) to amend Sections 1 through 3, 7, 15 through 18, 20, and 24 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Heath: Vital Statistics
901 KAR 5:020. Delayed birth registration. Gary Kupchinsky and Glenda Gordon represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to correct a statutory citation and comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend Section 2 to delete repetitive language and move it into a new subsection. Without objection, and with agreement of the agency, the amendments were approved.
Office of Inspector General: Controlled Substances
902 KAR 55:030. Schedule IV substances. Steve Davis, deputy inspector general, represented the office.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION AND CONFORMITY paragraph to correct a statutory citation and clearly state the necessity for and function served by this administrative regulation as required by KRS 13A.220; (2) to amend Section 1 to correct punctuation and spacing, delete the drug fenfluramine from the list of stimulants, and renumber the subsections; (3) to amend Section 2 to list the drugs in alphabetical order; and (4) to create a new section listing the drug fenfluramine in its own category, consistent with federal Schedule IV. Without objection, and with agreement of the agency, the amendments were approved.
902 KAR 55:035. Schedule V substances. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION AND CONFORMITY paragraph to correct a statutory citation and clearly state the necessity for and function served by this administrative regulation as required by KRS 13A.220; (2) to amend Section 1 to delete the drugs pregabalin and pyrovalerone from the list of narcotic drugs and create a new subsection listing pregabalin as a depressant consistent with federal Schedule V; and (3) to amend Section 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Human Support Services: Administration
920 KAR 3:010. Breast Cancer Research and Education Grant Program. Amberlee Nickell represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; (2) to amend Section 1 to clearly define terms; (3) to amend Section 2 to clarify the procedures to apply for a grant from the Breast Cancer Research and Education Grant Program; (4) to amend Section 3 to clarify the duties of the board and criteria by which grant applications will be judged; and (5) to amend Sections 2, 3, and 4 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Community Based Services: Division of Family Support: K-Tap, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:006 & E. Technical requirements for the Kentucky Transitional Assistance Program (K-TAP). Elizabeth Caywood and David Gayle, regulation coordinator, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to insert statutory citations; (2) to amend Section 1 to clarify or correct definitions and add definitions for "Benefit group", "Penalized individual", and "Sanctioned individual"; and (3) to amend Sections 1, 3 through 6, 8 through 11, 15, 17, 19, and 20 to correct citation references and comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
921 KAR 2:370 & E. Technical requirements for Kentucky Works. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to insert a statutory citation; (2) to amend Section 1 to clarify and correct definitions; (3) to amend Section 5 to clarify standards for when a fifteen (15) day monitoring period for conciliation may be extended; (4) to amend Section 9 to state that a training site agency shall complete certain surveying or reporting and delete references to a questionnaire that is not used; and (5) to amend Sections 1 through 5, 7, 9, and 10 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
The following administrative regulations were deferred to the next meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Physical Therapy: Board
201 KAR 22:070. Requirements for foreign-educated physical therapists.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Department for Environmental Protection: Division of Water: Water Resources
401 KAR 4:060. Stream construction criteria.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Juvenile Justice: Child Welfare
505 KAR 1:160. Department of Juvenile Justice Policies and Procedures: treatment program for juvenile sexual offenders.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Department of Public Protection: Kentucky Horse Racing Authority: Thoroughbred Racing
810 KAR 1:080. International wagering hubs.
Harness Racing
811 KAR 1:025. Farm or stable name.
811 KAR 1:030. Eligibility and classification.
811 KAR 1:035. Claiming races.
811 KAR 1:040. Stakes and futurities.
811 KAR 1:045. Entries.
811 KAR 1:050. Entries and starters; split races.
811 KAR 1:055. Declaration to start; drawing horses.
811 KAR 1:060. Postponement; rescheduling, purses.
811 KAR 1:065. Starting.
811 KAR 1:075. Racing and track rules.
811 KAR 1:080. Placing; money distribution.
811 KAR 1:085. Conduct of racing.
811 KAR 1:090. Medication; testing procedures; prohibited practices.
811 KAR 1:095. Disciplinary Measures and Penalties.
811 KAR 1:100. Protests.
811 KAR 1:105. Review and appeal.
811 KAR 1:110. Timing and records.
811 KAR 1:130. Security; persons permitted on licensed premises.
811 KAR 1:135. Identification cards and badges.
811 KAR 1:140. Post time; entry number.
811 KAR 1:145. Number of races per program.
811 KAR 1:155. Postponements; decision on.
811 KAR 1:160. Association with undesirables prohibited.
811 KAR 1:171. Repeal of 811 KAR 1:165, 1:170, 1:180 and 1:190.
811 KAR 1:175. Tack inspection.
811 KAR 1:195. Track deductions from wagers.
811 KAR 1:225. Substance abuse by Authority employees and licensees.
Other Business:
The Subcommittee honored retiring members Representatives Jon David Reinhardt and Jim Bruce. A framed resolution was presented to Representative Reinhardt and an engraved clock was presented to Representative Bruce.
The subcommittee meeting adjourned at 11:17 a.m. until January 9, 2007 at 10 a.m.