The January meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, January 13, 2009, at 10:00 AM, in Room 149 of the Capitol Annex. Representative Robert R. Damron, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Elizabeth Tori, Co-Chair; Representative Robert R. Damron, Co-Chair; Senators Alice Forgy Kerr, Joey Pendleton, and Gary Tapp; Representatives Danny Ford, Jimmie Lee, and Ron Weston.
Guests: Mike Burleson, Cheryl Lalonde, Board of Pharmacy; Nathan Goldman, Suzette Scheuermann, Board of Nursing; Rick Allen, Karen Alexy, Bob Durborow, Margaret Everson, Jon Gassett, Chet Hayes, Benjy Kinman, Pam Rogers, Mike Timmerman, Catherine York, Department of Fish and Wildlife Resources; Jory Becker, Melissa Brothers, Barry Elmore, Julia Kays, Aaron Keatley, Division of Water; Steve Lynn, Kentucky Law Enforcement Council; Carlos Cassady, Larry Craig, Trevor Earl, Mark Guilfoyle, Ron Jackson, Transportation Cabinet; David Stumbo, Labor Cabinet; LaTasha Buckner, Virginia Davis, Danny Reed, Stephanie Stumbo, Department of Alcoholic Beverage Control; Johnny Greene, Frank Reed, Michael Haines, Office of Mine Safety and Licensing; David Hurt, DJ Wasson, Department of Insurance; Patricia Cooksey, Marc Guilfoil, Bill Napier, Kentucky Horse Racing Commission; Elizabeth Caywood, Justin Dearinger, David Gutierrez, Jeanne Keen, Department for Community Based Services; Shari Sullivan, Steve Veno, Department for Income Support.
LRC Staff: Dave Nicholas, Donna Little, Sarah Amburgey, Emily Harkenrider, Karen Howard, Emily Caudill, Jennifer Beeler, and Laura Napier.
The Administrative Regulation Review Subcommittee met on Tuesday, January 13, 2009, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Pharmacy: Board
201 KAR 2:105. Licensing and drug distribution requirements for wholesale distributors. Mike Burleson, executive director, and Cheryl Lalonde, board counsel and assistant attorney general, represented the board.
A motion was made and seconded to approve the following amendments: to amend Sections 3 and 5 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Board of Nursing: Board
201 KAR 20:161. Investigation and disposition of complaints. Nathan Goldman, general counsel, represented the board.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Fish
301 KAR 1:125. Transportation of fish. Karen Alexy, wildlife director; Margaret Everson, assistant attorney general; Jon Gassett, commissioner; Benjy Kinman, fisheries division director; and Darin Moore, administrative director, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to delete superfluous citations; (2) to amend the STATUTORY AUTHORITY paragraph to make a technical correction; (3) to amend Section 1 to insert a definition for "APHIS-approved laboratory"; (4) to amend Sections 1 and 4 to comply with the drafting and format requirements of KRS Chapter 13A; and (5) to amend Section 3 to clarify that the office is the APHIS Veterinary Services office. Without objection, and with agreement of the agency, the amendments were approved.
Game
301 KAR 2:251. Hunting and trapping seasons and limits for furbearers. Chet Hayes, executive director of the United Trappers of Kentucky, appeared in support of this administrative regulation.
Mr. Hayes stated that the United Trappers of Kentucky supported the snare proposals, the bobcat season, and the change to the timing of the close of the season for the purposes of removing trap lines.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add KRS 150.120(4); and (2) to amend Sections 2, 6, and 7 to provide that persons who hold a CCDW may carry a concealed deadly weapon while hunting. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 2:300. Black bears. Rick Allen, President, League of Kentucky Sportsmen, appeared in support of this administrative regulation. Pam Rogers, Kentucky State Director of the Humane Society of the United States, and Mike Timmerman appeared in opposition to this administrative regulation.
Mr. Gassett stated that the department had never opened a season in error to the detriment of an entire species, and he requested that the administrative regulation become effective in Kentucky.
Mr. Allen stated that the League of Kentucky Sportsmen supported the proposed bear season.
Mr. Timmerman stated that this administrative regulation prohibited nonCCDW permittees from carrying firearms during archery and muzzleloader seasons. He stated that hunters should have the right to carry firearms, regardless of the season, for safety or self defense. He also stated his opinion that the department violated Section 1, Part 7 of the Constitution of the United States. He further stated that Section 26 of the Constitution of the United States applied, and that KRS 150.120 was therefore unconstitutional. He proposed revisions to department administrative regulations to state that "a hunter shall not use a firearm to harvest", rather than "a hunter shall not possess a firearm."
Ms. Rogers stated that, in her capacity as Kentucky State Director of the Humane Society of the United States, she had rarely appeared in opposition to the Department of Fish and Wildlife Resources. However to protect the black bear, the professionals at the United States Humane Society disagreed with the professionals at the department that the black bear population was resilient enough to withstand the hunting authorized by this proposal. She also stated that the department proposed to allow black bear hunting in an area previously protected. She stated that failure to protect this area may put females and cubs at added risk. She requested that the subcommittee find this administrative regulation deficient.
In response to a question by Co-Chair Damron, Mr. Moore stated that the proposed amendment did allow a permittee with a CCDW to carry a concealed or unconcealed firearm pursuant to KRS 237.110.
Mr. Gassett stated that the department was not opposed to firearms or to the second amendment to the Constitution of the United States and that the department planned to develop a task force to address statutory language during the current legislative session. He also stated that this administrative regulation protected female black bears and cubs because the proposed hunting season would be during the time when the females and cubs would be expected to be in their dens. He further stated that there would still be other areas that were completely protected.
Co-Chair Damron stated that KRS 150.120 probably was unconstitutional, but that the matter needed to be determined by the Judicial Branch. He stated that the department needed to rewrite some of their statutes and administrative regulations.
Representative Lee stated that he believed that issues on constitutionality existed and that the department needed to rewrite some of their statutes and administrative regulations to comply with the second amendment to the Constitution of the United States.
Co-Chair Damron stated that he shared Representative Lee's opinions on this matter and that the Department for Fish and Wildlife Resources had committed to developing language to conform to the Constitution of the United States during this legislative session.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add KRS 150.120(4); (2) to amend Section 6 to provide that a person holding a CCDW may carry a deadly weapon while hunting but may not use that weapon to take wildlife unless that weapon is authorized for the taking of wildlife; and (3) to amend Sections 1, 3, 5, and 8 through 11 to comply with the formatting and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Hunting and Fishing
301 KAR 3:022. License, tag, and permit fees
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Water: Water Quality
401 KAR 5:010. Operation of wastewater systems by certified operators. Jory Becker, branch manager, and Aaron Keatley, division director, represented the cabinet.
In response to questions by Representative Ford, Mr. Keatley stated that all wastewater treatment facilities currently were required to have a certified operator. He stated that only collection systems were not previously required to have a certified operator and would be required to have one (1) as a result of these amendments. He also stated that the cabinet was not aware of the exact number of facilities without a certified operator. He explained that this proposed amendment resulted from infrastructure deterioration, numerous systems that recently entered into agreed orders, and recent spills and penalties. Mr. Keatley stated that the federal government was also considering regulating collection systems more vigorously.
Certified Operators
401 KAR 11:001. Definitions for 401 KAR Chapter 11.
401 KAR 11:010. Board of certification.
A motion was made and seconded to approve the following amendments: to amend Section 1 to make technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
401 KAR 11:020. Standards of professional conduct for certified operators.
A motion was made and seconded to approve the amendment to amend Section 1 to make a technical correction. Without objection, and with agreement of the agency, the amendment was approved.
401 KAR 11:030. Wastewater treatment and collection operators-classification and qualification.
401 KAR 11:050. Operator certification.
In response to questions by Representative Ford, Mr. Keatley stated that Kentucky's fees for examination and renewal were consistent with other states, and that the examination fee was $100 and the biannual renewal fee was fifty (50) dollars. He stated that the current renewal fee was thirty-five (35) dollars.
In response to questions by Senator Tapp, Mr. Keatley stated that enforcement of the new requirements would not begin immediately, but that facilities would have a grace period in which to prepare. He stated that the cabinet would conduct multiple testing events per month and that they expected to test approximately 1,000 persons during the next year.
In response to a question by Senator Kerr, Mr. Keatley stated that facilities had been notified of the changes by Rural Water and other professional associations and through newsletters and routine training provided by the cabinet.
401 KAR 11:060. Certification fees.
JUSTICE AND PUBLIC SAFETY CABINET: Kentucky Law Enforcement Council: Council
503 KAR 1:170. Career Development Program. Steve Lynn, assistant general counsel, represented the council.
A motion was made and seconded to approve the following amendments: (1) to amend Section 3 to add an application form for a “Telecommunications Supervisor”; (2) to amend Section 4 for clarification; (3) to amend Section 22 to add a uniform lapel pin as an item to be issued along with a certificate for peace officers or telecommunicators who have completed a career development step; (4) to amend Section 24 to add forms incorporated by reference and to revise edition dates; and (5) to amend Sections 1 through 3 and 19 through 21 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Motor Vehicle Commission
605 KAR 1:060. Temporary off-site sale or display event. Carlos Cassady, executive director; Larry Craig, director; and Trevor L. Earl, legal counsel, represented the commission. Mark Guilfoyle, attorney on behalf of Kerry Automotive, and Ron Jackson, President of the Kentucky Automobile Dealer Association, appeared in opposition to this administrative regulation.
Mr. Guilfoyle stated that Franklin Circuit Court Judge Thomas Wingate determined in a preliminary decision that the five (5) mile rule established by KRS 190.047 did not apply to temporary dealership sites. He requested that the administrative regulation be changed to comply with that decision.
Mr. Earl stated that Judge Wingate had not submitted a final decision and the administrative regulation only applied to the sale of new cars to reflect franchise laws.
Mr. Jackson stated that members of the Kentucky Automobile Dealer Association were concerned about the $500 fee, but understood the fee was needed for inspections. There was also concern about the title availability requirement since titles were not always readily available. The association did not consider the "5-mile rule" to be an issue.
Representative Lee stated that this administrative regulation was very important in order to protect consumers regarding temporary sales sites, such as tent sales. He also recommended that the cabinet work with local dealers and associations if future changes to this administrative regulation were needed.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1 through 6 and 8 through 11 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
LABOR CABINET: Department of Workplace Standards: General
803 KAR 2:300. General. David Stumbo, safety program manager, represented the department.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 2 to comply with the drafting 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: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:306. Occupational health and environmental controls.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2 and 3 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:307. Hazardous materials.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:309. General environmental controls.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:315. Hand and portable powered tools and other hand-held equipment.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:316. Welding, cutting, and brazing.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:317. Special industries.
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 requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
PUBLIC PROTECTION AND REGULATION CABINET: Department of Alcoholic Beverage Control: Licensing
804 KAR 4:370. Entertainment destination center license. LaTasha Buckner, general counsel; Virginia Davis, internal policy analyst; and Danny Reed, distilled spirits administrator, represented the department.
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 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, and 4 through 7 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
804 KAR 4:390. License renewals.
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 to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Sections 1 through 5 to comply with the drafting and format requirements of KRS Chapter 13A; and (4) to amend Section 2 to incorporate by reference the updated edition of the “ABC Table of License Expiration Dates by Zip Code”. Without objection, and with agreement of the agency, the amendments were approved.
804 KAR 4:400. ABC basic application form incorporated by reference.
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; (3) to amend Sections 1, 2, and 3 to comply with the drafting and format requirements of KRS Chapter 13A; and (4) to amend Section 3 to incorporate by reference the updated edition of the "Basic Application for Alcoholic Beverage Licenses." Without objection, and with agreement of the agency, the amendments were approved.
Quotas
804 KAR 9:010. Retail liquor license limit.
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 through 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.
804 KAR 9:040. Retail package liquor license quota.
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 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 through 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.
ENERGY AND ENVIRONMENT CABINET: Department for Natural Resources: Office of Mine Safety and Licensing: Miner Training, Education, and Certification
805 KAR 7:080. Training, certification, and annual retraining of mine emergency technicians. Johnny Green, executive director; Mike Haines, general counsel; and Franklin Reed, director of training, 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; and (2) to amend Section 1 through 4, 6, 7, 9, and 10 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the cabinet, the amendments were approved.
PUBLIC PROTECTION CABINET: Department of Insurance: Authorization of Insurers and General Requirements
806 KAR 3:170. Annual audited financial reports. Annual audited financial reports. David Hurt, chief financial examiner, and D.J. Wasson, staff assistant, represented the department.
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, as required by KRS 13A.220; (3) to amend Sections 2 and 5 for clarity; and (4) to amend Sections 1, 2, 5, 6, and 18 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 Horse Racing Commission: Harness Racing
811 KAR 1:075. Racing and track rules. Patricia Cooksey, policy advisor; Marc A. Guilfoil, deputy executive director; and Bill Napier, deputy executive secretary, represented the commission.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2, 8, 9, 10, 11, 12, and 18 to comply with the drafting and format requirements of KRS Chapter 13A; and (2) to amend Section 2(1) to delete unnecessary language. Without objection, and with agreement of the agency, the amendments were approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Community Based Services: Child Abuse and Domestic Violence Services
920 KAR 2:020. Domestic violence batterer intervention provider certification standards. Elizabeth Caywood, policy analyst; David Gutierrez, assistant director; and Jeanne Keen, program administrator, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend Section 12 to specify that a review or investigation conducted by the cabinet shall include precautions to avoid risk or harm to a client or a domestic violence victim; and (2) to amend Sections 1, 4, 6, 10, 11, and 12 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 for Income Support: Child Support
921 KAR 1:020. Child support enforcement program; confidentiality, program administration contracts, and agreements. Shari Sullivan, internal policy analyst, and Steve Veno, deputy commissioner, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Section 1 to delete references to a repealed statute; (2) to amend Section 1 to add a definitions section; and (3) to amend the RELATES TO paragraph and Sections 1 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.
921 KAR 1:390. Child support enforcement program paternity establishment.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO paragraph and Section 2 to correct statutory and regulatory citations. Without objection, and with agreement of the agency, the amendments were approved.
921 KAR 1:400. Establishment, review, and modification of child support and medical support orders.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 2 to delete unnecessary or duplicative language; and (2) to amend Section 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.
Other Business:
Co-Chair Damron introduced Representative Leslie Combs. He stated that Representative Weston would be leaving the subcommittee and Representative Combs would be joining the subcommittee in February. He also introduced Senator Elizabeth Tori. Senator Tapp made a motion, seconded by Senator Pendleton, that Senator Tori be nominated for Senate Co-Chair. Senator Tori accepted the nomination. Senator Tapp made a motion, seconded by Senator Pendleton, to end Senate Co-Chair nominations. Senator Elizabeth Tori was unanimously endorsed as Senate Co-Chair of the subcommittee.
The following administrative regulations were deferred to the February 9, 2009, meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Nursing: Board
201 KAR 20:400. Delegation of nursing tasks.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Game
301 KAR 2:083 & E. Holding and intrastate transportation of captive cervids.
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Water: Public Water Supply
401 KAR 8:010. Definitions for 401 KAR Chapter 8.
401 KAR 8:020. Public and semipublic water supplies; general provisions.
401 KAR 8:061. Repeal of 401 KAR 8:060, 8:162, 8:350, 8:400, and 8:420.
401 KAR 8:070. Public notification.
401 KAR 8:075. Consumer confidence reports.
401 KAR 8:150. Disinfection, filtration , and recycling.
401 KAR 8:200. Microbiological monitoring.
401 KAR 8:250. Inorganic and organic chemical sampling, analytical techniques, and maximum contaminant levels.
401 KAR 8:300. Lead and copper.
401 KAR 8:550. Radionuclides.
Water Quality Standards
401 KAR 10:026. Designation of uses of surface waters.
401 KAR 10:029. General provisions.
401 KAR 10:030. Antidegradation policy implementation methodology.
401 KAR 10:031. Surface water standards.
COUNCIL ON POSTSECONDARY EDUCATION: Council
785 KAR 1:010. GED Testing Program.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Department for Workforce Investment: Office of Employment and Training: Unemployment
787 KAR 1:090. Unemployed worker's reporting requirements.
ENERGY AND ENVIRONMENT CABINET: Department for Natural Resources: Office of Mine Safety and Licensing: Division of Mining
805 KAR 5:030. Prohibition against working or traveling under an unsupported roof; penalties.
Miner Training, Education, and Certification
805 KAR 7:060. Program approval.
Office of Mine Safety and Licensing
805 KAR 8:060. Criteria for the imposition and enforcement of sanctions against licensed premises.
PUBLIC PROTECTION CABINET: Kentucky Horse Racing Commission: Thoroughbred Racing
810 KAR 1:015. Claiming races.
Harness Racing
811 KAR 1:070 & E. Licensing standardbred racing.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Medicaid Services: Medicaid Services
907 KAR 1:645. Resource standards for Medicaid.
907 KAR 1:650. Trust and transferred resource requirements for Medicaid.
907 KAR 1:655. Spousal impoverishment and nursing facility requirements for Medicaid.
Division of Family Support: K-TAP, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:006. Technical requirements for the Kentucky Transitional Assistance Program.
921 KAR 2:017. Kentucky works supportive services.
The Subcommittee adjourned at 11:30 p.m. until February 9,