The Administrative Regulation Review Subcommittee was held on Thursday, June 7, 2007, at 10:00 AM, in Room 149 of the Capitol Annex. Senator Dick Roeding, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Dick Roeding, Co-Chair; Senators Alice Forgy Kerr, Joey Pendleton, and Gary Tapp; Representatives Danny Ford, Jimmie Lee, and Ron Weston.
Guests: Alicia Sneed, Cynthia Godsey, Gary Stephens, Education Professional Standards Board; Kathryn Dunnigan, Kentucky State Board of Elections; Robert Barnes, Teachers' Retirement System; Jeff Boler, James Grawe, Ed Hall and, Claude Wagner, Kentucky Board of Veterinary Examiners; Jonathan Buckley and David Cox, Kentucky State Board of Licensure for Professional Engineers and Land Surveyors; Karen Alexy, Benjy Kinman, Morgain Sprague, Shawchyi Vorisek; Department of Fish and Wildlife; Karen Howard and Stacy Warnecke, Justice and Public Safety Cabinet; Major Wayne Mayfield, Chuck Stribling, Kembra Taylor, Department of Labor; Virginia Davis, Office of Alcohol Beverage Control; Susan Bush, Department for Natural Resources; Michael Bennett, Terry Slade, Tim House, Office of Housing, Buildings and Construction; Stephanie Mayfield, Medina Tipton, Department for Public Health; Glenn Bryant, Department for Mental Health and Mental Retardation Services; Dana Fugazzi, James Godsey, Roy Mundy, Thomas Shelf, Todd Shipp Transportation Cabinet, Department for Vehicle Registration.
LRC Staff: Dave Nicholas, Donna Little, Kara Daniel, Emily Harkenrider, Jennifer Beeler and Ellen Steinberg.
The Administrative Regulation Review Subcommittee met on June 7, 2007 and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
EDUCATION PROFESSIONAL STANDARDS BOARD: General Administration
16 KAR 1:030. Procedures for certificate revocation, suspension, reinstatement and reissuance, and application denial. Alicia Sneed, director, represented the board.
In response to a question by Co-Chair Roeding, Ms. Sneed stated that the board did not have the funds to pay for drug testing. The cost of a required drug test was borne by the applicant, who also chose the testing site and had the results sent directly to the board.
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 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 5 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Alternative Routes to Certification
16 KAR 9:080. University-based alternative certification program.
In response to a question by Co-Chair Roeding, Ms. Sneed stated that the alternative certification program for veterans, the Troops to Teachers Program, was not affected by changes to this administrative regulation.
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; (2) to amend Sections 1 to 6 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend Section 6 to clarify that three (3) documents are incorporated by reference and that two (2) of the documents have two (2) parts. Without objection, and with agreement of the agency, the amendments were approved.
KENTUCKY STATE BOARD OF ELECTIONS: Voting
31 KAR 5:010 & E. Absentee voting for military and overseas citizens for runoff primary elections. Kathryn Dunnigan, general counsel, represented the board.
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 Sections 1 to 4 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend Section 5 to revise the "Notice and Instructions for Voting in Primary Runoff Election for Military and Kentucky Residents Residing Outside of the United States." Without objection, and with agreement of the agency, the amendments were approved.
TEACHERS' RETIREMENT SYSTEM: General Rules
102 KAR 1:175. Investment policies. Robert Barnes, deputy executive secretary, represented the retirement system.
In response to a question by Co-Chair Roeding, Mr. Barnes stated that the changes to this administrative regulation allowed the system more flexibility to take advantage of changing investment opportunities in the market.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; (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 to 5 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT: Kentucky Board of Veterinary Examiners: Examiners
201 KAR 16:010. Code of ethical conduct. Dr. Ed Hall, board member; James Grawe, assistant attorney general; and Claude Wagner, director, Division of Occupations and Professions, represented the board.
In response to a question by Senator Kerr, Dr. Hall stated that the veterinarians’ code of ethics required a veterinarian to treat a stray animal to stabilize its medical condition and to attempt to locate the animal’s owner. If no owner was located, the animal would be taken to the local animal control office or humane society.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky State Board of Licensure for Professional Engineers and Land Surveyors: Board
201 KAR 18:111. Repeal of 201 KAR 18:110. David Cox, executive director; and Jonathan Buckley, general counsel, represented the board.
A motion was made and seconded to approve the following amendments: to amend Section 1 to correct the number of the administrative regulation that is being repealed. Without objection, and with agreement of the agency, the amendments were approved.
COMMERCE CABINET: Department of Fish and Wildlife Resources: Game
301 KAR 2:132. Elk depredation permits, landowner cooperator permits, and quota hunts. Morgain Sprague, general counsel; Benjy Kinman, director; Karen Alexy, director; and Shawchyi Vorisek, biologist, represented the department.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 6, and 8 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 2:172. Deer hunting seasons, zones and requirements.
In response to a question by Senator Tapp, Ms. Sprague stated that hunters were made aware of the changes through publication in the hunting guide. Ms. Alexy stated that it was publicized through press releases as well and that with any change to an administrative regulation, hunters first received warnings when enforcement began. She stated that electronic decoys were prohibited due to ethical concerns.
A motion was made and seconded to approve the following amendments: to amend Section 11 to correct a cross-reference error. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 2:175. Repeal of 301 KAR 2:174.
301 KAR 2:177. Repeal of 301 KAR 2:179.
301 KAR 2:178. Deer hunting on Wildlife Management Areas and State Parks.
301 KAR 2:195. Raptor propagation and falconry.
In response to a question by Co-Chair Roeding, Ms. Vorisek stated that Kentucky had 40 to 50 permit holders, mostly in western Kentucky and the Louisville area. She stated that the changes to this administrative regulation were minor and brought it up to date.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct a statutory citation; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation; (3) to amend Sections 1-11 to comply with the formatting and drafting requirements of KRS Chapter 13A; and (4) to amend Section 12 to incorporate by reference the required form. Without objection, and with agreement of the agency, the amendments were approved.
Hunting and Fishing
301 KAR 3:022. License, tag and permit fees.
In response to a question by Senator Tapp, Mr. Kinman stated the fees were increased to recover the costs of raising the fish used to stock ponds. He stated the department would still not recover all of the costs it incurred. He stated it was still a good value because the charge on the open market was $250 to $500 per acre.
In response to a question by Representative Ford, Ms. Sprague stated that currently, retired teachers are the only state employees eligible to receive a license for disabled individuals. She stated that the department would reexamine the categories of individuals who qualified for a disability license.
JUSTICE AND PUBLIC SAFETY CABINET: Department of State Police: DNA
502 KAR 32:010 & E. Centralized database for DNA identification records. Karen Howard, attorney; Stacy Warnecke, DNA database supervisor; and Maj. Wayne Mayfield, commissioner of forensic services, represented the department.
In response to questions by Representative Lee, Maj. Mayfield stated that the crime lab backlog for DNA tests was four to six months. He stated that analysis was performed based on the priority of the case and amount of time before the trial. He stated that only the central laboratory performed DNA analysis and that a satellite DNA lab should be created for western Kentucky to reduce the burden on the central lab. He stated that the department would include its needs in its budget request. He stated that resources had been requested in the past but had not been included in the executive budget. He stated he would be happy to meet with members of the legislature about these issues.
A motion was made and seconded to approve the following amendments: to amend Sections 2, 3, 6, 7, and 8 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: Office of Occupational Safety and Health: Occupational Safety and Health
803 KAR 2:300. General. Kembra Taylor, attorney, and Chuck Stribling, safety standards specialist, represented the office.
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 and 3 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:305. Powered platforms, manlifts, and vehicle-mounted work platforms.
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 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.
803 KAR 2:318. Electrical.
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 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department of Public Protection: Office of Alcoholic Beverage Control: Quotas
804 KAR 9:040. Retail package liquor license quota. Virginia Davis, resource management analyst, represented the department.
Department for Natural Resources: Miner Training, Education and Certification
805 KAR 7:010. Definitions for 805 KAR Chapter 7. Susan Bush, commissioner, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE and Section 1 to comply with the drafting and format requirements of KRS Chapter 13A; (2) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; and (3) 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. Without objection, and with agreement of the agency, the amendments were approved.
805 KAR 7:100. Requirements for belt examiner.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE and Sections 1 to 3 to comply with the drafting and format requirements of KRS Chapter 13A; (2) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; and (3) 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. Without objection, and with agreement of the agency, the amendments were approved.
Department of Public Protection: Office of Housing, Buildings and Construction: Building Code
815 KAR 7:125. Kentucky Residential Code. Mike Bennett, staff attorney; Tim House, Director, Division of Plumbing; and Terry Slade, director, Division of Building Codes Enforcement, represented the department.
In response to questions by Representative Ford, Mr. Slade stated that a county with an inspection program for one- and two-family dwellings that did not have its own inspector would have to use an inspector from another area. He stated a county did not have to adopt the inspection program for one- and two-family dwellings although the building code is mandatory statewide. He stated that 50 to 60 counties have not adopted an inspection program.
Mr. House stated that the inspector in Pulaski County recently retired and left ten counties without a local inspector. He stated that had created a backlog for the Division of Building Code and Enforcement inspectors which resulted in a 30- to 40-day delay for inspections in those counties. He stated that this administrative regulation updated the residential code but would not add to the delay.
Senator Tapp stated the department should make an extra effort to perform inspections in those ten counties. He stated the local government should be encouraged to hire a new inspector.
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 1 to 3 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Plumbing
815 KAR 20:078. Storage and installation of SDR 11, CPVC plastic pipe and fittings.
In response to a question by Senator Tapp, Mr. House stated that CPVC manufacturers did not recommend the use of CPVC-threaded adapters to transition to metal. The changes to this administrative regulation prohibited their use. A CPVC adapter with brass threads would meet the new requirements.
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 the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation; (3) to amend Section 1 to correct punctuation; (4) to amend Sections 2, 5, and 6 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (5) to delete repetitive language from Section 6. Without objection, and with agreement of the agency, the amendments were approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Diseases
902 KAR 2:080. Sexually transmitted diseases. Stephanie Mayfield, physician director, and Medina Tipton, health policy specialist, represented the department.
A motion was made and seconded to approve the following amendments: (1) to add a citation to the RELATES TO paragraph; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation; (3) to amend Sections 1 and 4 to replace acronyms with proper names used for the first time, to move a requirement out of the definitions section, and to use consistent terms; and (4) to amend Sections 1, 4, and 5 to comply with the formatting and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Mental Health and Mental Retardation Services: Division of Administration and Financial Management: Institutional Care
908 KAR 3:050. Per diem rate pursuant to KRS 210.710-760. Glenn Bryant represented the division.
In response to a question by Representative Lee, Mr. Bryant stated that the increases in the per diem rate would have little impact on individuals currently in mental facilities because a patient’s ability to pay was still considered and the means testing amount was increased as well.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE to more accurately reflect the contents of this administrative regulation; (2) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraph to correct punctuation errors and statutory citations; and (3) to amend 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.
908 KAR 3:060. "Means test" pursuant to the "Patient Liability Act of 1978."
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE to more accurately reflect the contents of this administrative regulation; (2) to amend the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (3) to amend Sections 2, 3, 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.
Other Business:
Co-Chair Roeding stated he wanted to remind agency representatives of the requirements of KRS 13A.240 regarding the regulatory impact analysis for new and amended regulations. He stated that question 4 of the regulatory impact analysis, which reflected the statutory requirements, required a three-part analysis that addressed: (1) the action required of affected entities; (2) the estimate of costs imposed on affected entities; and (3) the benefits that may accrue to affected entities as a result of compliance with the new or amended regulation. He stated this information is important to the subcommittee members, the staff, and the regulated community and that some agencies have not been answering the questions clearly.
Pursuant to KRS 13A.030(1)(a), 601 KAR 1:055 was considered as it relates to transportation of farm vehicles within the state and recent problems with inappropriate use of this administrative regulation to stop farm vehicles and threaten to issue citations for failure to comply with federal regulations.
Dana Fugazzi, attorney; Roy Mundy, commissioner; and Todd Shipp, attorney, represented the Transportation Cabinet. Senator Pendleton stated that he met with agency representatives and they reached an agreement regarding how the administrative regulation should be amended to resolve recent problems. He stated that the cabinet intended to file an amended version of this administrative regulation within the next 30 days. Ms. Fugazzi stated that there had been confusion regarding enforcement of this administrative regulation and that her office will work with the Department of Vehicle Enforcement to resolve it.
The following administrative regulations were deferred to the next meeting of the subcommittee:
TEACHERS' RETIREMENT SYSTEM: General Rules
102 KAR 1:030. Substitute teachers and nonuniversity, noncommunity college part-time members.
102 KAR 1:036. Part-time service for university, college, and community college members.
102 KAR 1:038. Fractional service year for members initially employed on a full-time basis.
GENERAL GOVERNMENT: Board of Physical Therapy: Board
201 KAR 22:020. Eligibility and credentialing procedure.
EDUCATION CABINET: Kentucky Board of Education: Department of Education: Exceptional and Handicapped Programs
707 KAR 1:300. Child find, evaluation, and reevaluation.
707 KAR 1:331. Repeal of 707 KAR 1:330, Comprehensive system of personnel.
707 KAR 1:360. Confidentiality of information.
707 KAR 1:370. Children with disabilities enrolled in private schools.
707 KAR 1:380. Monitoring and recovery of funds.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Department of Public Protection: Department for Natural Resources: Drugs Workplace Certification
805 KAR 11:001. Definitions for 805 KAR Chapter 11.
805 KAR 11:010. Requirements for application for certification of drug-free workplace.
805 KAR 11:020. Requirements for certification of drug-free workplace.
Office of Charitable Gaming: Charitable Gaming
820 KAR 1:001. Definitions for 820 KAR Chapter 1.
820 KAR 1:015. Issuance of annual license for a charitable organization.
820 KAR 1:029. Facility licensees.
820 KAR 1:055. Charity fundraising event standards.
820 KAR 1:056. Special limited charity fundraising event standards.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Radiation Operators Certification
902 KAR 105:040. General radiation operator requirements.
902 KAR 105:061. Repeal of 902 KAR 105:060.
902 KAR 105:070. Violations and endorsement.
The subcommittee adjourned until July 9, 2007 at 10.a.m.