Call to Order and Roll Call
The August meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, August 10, 2010, at 1:00 PM, in Room 149 of the Capitol Annex. Representative Leslie Combs, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Elizabeth Tori, Co-Chair; Representative Leslie Combs, Co-Chair; Senators David Givens, Alice Forgy Kerr, and Joey Pendleton; Representatives Robert R. Damron, Danny Ford, and Jimmie Lee.
Guests: Becky Gilpatrick, Melissa Justice, Kentucky Higher Education Assistance Authority; Robert Brown, Alicia Sneed, Education Professional Standards Board; Sarah Ball Johnson, Kathryn Gabhart, State Board of Elections; Jennifer Jones, Schugler Olt, Kentucky Retirement Systems; Lloyd Vest, Board of Medical Licensure; Larry Disney, Jim Grawe, Kentucky Real Estate Appraisers Board; Gerard Buynak, Catherine York, Department of Fish and Wildlife Resources; Steve Sims, Clint Quarles, Department of Agriculture; Sam Devine, Department of Parks; Amy Denham, David Gooch, Johnny Greene, Michael Mullins, Allen Lutrell, Department for Natural Resources; Steve Lynn, Justice and Public Safety Cabinet; Ann DAngelo, Randall Royer, Transportation Cabinet; Clay Lamb, Jeff Gatewood, Department of Workforce Investment; Kristi Redmon, Labor Cabinet; Dawn Bellis, Timothy House, Richard Moloney, Department of Housing, Buildings and Construction; Carrie Banahan, Rebel Baker, Shirley Eldridge, Phyllis Sosa, Cabinet for Health and Family Services; Steven Milry.
LRC Staff: Dave Nicholas, Donna Little, Sarah Amburgey, Chad Collins, Emily Harkenrider, Karen Howard, Emily Caudill, Jennifer Beeler, and Laura Napier.
The Administrative Regulation Review Subcommittee met on Tuesday, August 10, 2010, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
KENTUCKY HIGHER EDUCATION ASSISTANCE AUTHORITY: Division of Student and Administrative Services: Kentucky Loan Program
11 KAR 3:100. Administrative wage garnishment. Becky Gilpatrick, Student Aid Branch manager, and Melissa Justice, senior associate counsel, represented the division.
KHEAA Grant Programs
11 KAR 5:145. CAP grant award determination procedure.
EDUCATION PROFESSIONAL STANDARDS BOARD: Assessment
16 KAR 6:010. Written examination prerequisites for teacher certification. Alicia Sneed, director of legal services, and Robert Brown, director of the Division of Professional Learning and Assessment, represented the board.
A motion was made and seconded to approve the following amendments: to amend Sections 2, 3, 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.
16 KAR 6:030. Examination prerequisites for principal certification.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 3 through 6, and 8 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
STATE BOARD OF ELECTIONS: Forms and Procedures
31 KAR 4:130 & E. Facsimile transmission of the Federal Post Card Application and delivery of the absentee ballot for military, their dependents, and overseas citizens. Sarah Ball Johnson, executive director, and Kathryn Gabhart, general counsel, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to clarify 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, 4, and 5 to comply with the drafting and format requirements of KRS Chapter 13A; and (4) to amend Section 4 to clarify that the application for voter registration or absentee ballot shall be valid for all elections that occur after the application is received until the next general election. Without objection, and with agreement of the agency, the amendments were approved.
31 KAR 4:140 & E. Electronic submission of the Federal Post Card Application and delivery of the absentee ballot for military, their dependents, and overseas citizens.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add 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 2, 4, and 5 to comply with the drafting and format requirements of KRS Chapter 13A; (4) to amend Section 3(3) to specify that the clerk shall prepare a pdf-formatted copy of the original, blank absentee ballot; (5) to amend Section 1(5) to specify that the term, "registered voter," included dependents of a member of the military; and (6) to amend Section 2 to clarify that the application for voter registration or an absentee ballot shall be valid for all elections that occur after the application is received until the next general election. Without objection, and with agreement of the agency, the amendments were approved.
FINANCE AND ADMINISTRATION CABINET: Kentucky Retirement Systems: General Rules
105 KAR 1:370. Kentucky Retirement Systems Personnel Policies. Jennifer A. Jones, assistant general counsel, and Schuyler Olt, general counsel, represented the systems.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Section 1 to clarify to whom the personnel policies shall apply. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Board of Medical Licensure: Board
201 KAR 9:006. Repeal of 201 KAR 9:005. Lloyd Vest, general counsel, represented the board.
In response to a question by Senator Givens, Mr. Vest stated that 201 KAR 9:005 was being repealed because it was redundant. The statute already required compliance with American Medical Association standards, which included ethics standards for physicians.
Kentucky Real Estate Appraisers Board: Board
201 KAR 30:040. Standards of Practice. Larry Disney, executive director, and Jim Grawe, assistant attorney general, represented the board.
In response to a question by Representative Ford, Mr. Disney stated that this administrative regulation adopted the most recent uniform appraisal standards, which did not change substantively.
TOURISM, ARTS AND HERITAGE CABINET: Kentucky Department of Fish and Wildlife Resources: Fish
301 KAR 1:201. Recreational fishing limits. Gerard L. Buynak, assistant director, and Catherine York, deputy general counsel, represented the department.
GENERAL GOVERNMENT CABINET: Department of Agriculture: Office of Consumer and Environmental Protection: Division of Environmental Services: Structural Pest Control
302 KAR 29:010. Definitions for 302 KAR Chapter 29. Steve Sims, Structural Branch manager, and Clint Quarles, staff attorney, represented the division.
A motion was made and seconded to approve the following amendments: to amend Section 1 to comply with the drafting and format requirements of KRS Chapter 13A and to insert a citation. Without objection, and with agreement of the agency, the amendments were approved.
302 KAR 29:050. Commercial structural pest control and fumigation.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 7 and 11 to comply with the drafting and format requirements of KRS Chapter 13A; and (2) to amend Section 14 to incorporate by reference the consumer disclosure form. Without objection, and with agreement of the agency, the amendments were approved.
302 KAR 29:060. Certification.
In response to questions by Senator Givens, Mr. Sims stated that the amendments were expected to simplify the licensing process. The continuing education requirements were also changing to require more credit hours for certain licensees. Currently, the agency offered continuing education six (6) times per year, but was considering offering additional classes soon.
ENERGY AND ENVIRONMENT CABINET: Department for Natural Resources: Division of Mine Permits: Permits
405 KAR 8:010 & E. General provisions for permits. Mike Haines, general counsel; Allen Lutrell, director; and Michael Mullins, administrative regulation coordinator, represented the division. David Gooch, Coal Operators and Associates president, appeared in support of this administrative regulation.
In response to questions by Representative Ford, Mr. Luttrell stated that as a result of this administrative regulation, nineteen (19) new regulators had been hired. $89,000 had been recovered for permit fees.
In response to questions by Co-Chair Combs, Mr. Luttrell stated that 2010 House Bill (HB) 283, which raised fee limits, was drafted and passed on behalf of and after requests from the coal mining industry. HB 283 directly prompted the fee increases in this administrative regulation in order to improve the speed of permit processing. At the peak of the backlog, the division reported 185 delinquent permit processing requests outstanding. Since the emergency administrative regulation had been in effect, permit processing had steadily improved, and there were currently approximately eighty-five (85) delinquent permit processing requests outstanding. Slurry and other impoundment permit processing was time consuming because review consisted of two (2) federal oversight programs designed to minimize risk to workers' safety and structural failure. The 2001 Martin County coal slurry disaster was cited as an example of the importance of thorough permit review. In 2009 the division processed fifteen (15) impoundment permits. Since the emergency administrative regulation had been in effect, the division had processed thirty (30) impoundment permits.
Co-Chair Combs stated that industry requests for this fee increase were for the purpose of improving timely permit processing. House Bill 283 had been enacted by the General Assembly to help the coal mining industry. Co-Chair Combs requested that the division continue to improve timely permit processing without risking safety.
Mr. Gooch stated that the division's review and enforcement regarding this administrative regulation was currently adequate. The division worked closely with the coal mining industry to facilitate this administrative regulation, and the industry was pleased with the cooperation of state government.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correction citations; and (2) to amend Sections 2 through 6, 8, 9, 11, 12, 13, and 15 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.
JUSTICE AND PUBLIC SAFETY CABINET: Kentucky Law Enforcement Council: Council
503 KAR 1:110 & E. Department of Criminal Justice Training basic training: graduation requirements; reports. Steve Lynn, assistant general counsel, represented the council.
A motion was made and seconded to approve the following amendments: to amend Sections 2, 3, 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.
Department of Criminal Justice Training: General Training Provision
503 KAR 3:010. Basic law enforcement training course recruit conduct requirements; procedures and penalties.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to specify that the criminal history check must be conducted in the ninety (90) days before the recruit attends basic training; (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 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.
503 KAR 3:040. Telecommunications academy trainee requirements; misconduct; penalties; discipline procedures.
In response to a question by Senator Givens, Mr. Lynn stated that this administrative regulation required good hygiene and prohibited excessive perfume and cologne because the academy space was very limited and there had been numerous complaints.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to specify that the criminal history check shall be conducted in the ninety (90) days before the trainee attends the academy; (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, 3, 4, 6, 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.
503 KAR 3:110. Certified Court Security Officers academy trainee requirements; misconduct; penalties; discipline procedures.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to specify that the criminal history check shall be conducted in the ninety (90) days before the trainee attends the academy; (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, 3, 4, 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.
TRANSPORTATION CABINET: Office of Audits: Division of Road Fund Audits: Division of Motor Carriers
601 KAR 1:201. Recordkeeping and audit requirements of taxes imposed in KRS 138.655 through 138.7291. Ann D'Angelo, assistant general counsel, and Randall Royer, road fund audit director, represented the division.
Senator Pendleton stated that requirements on the Division of Motor Carriers Web site had not been updated since April of 2009 and citations had been issued as a result of confusion regarding which standards were in effect. Ms. D'Angelo agreed to ensure that the Division's Web site was updated to current requirements.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add a statutory citation; and (2) to amend Sections 3 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.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Department of Workforce Investment: Office of Employment and Training: Employment Services
787 KAR 2:020. Confidentiality of records of the Office of Employment and Training. Clay Lamb, staff attorney, and Jeff Gatewood, program lead, represented the office.
A motion was made and seconded to approve the following amendments: to amend Sections 1 through 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.
LABOR CABINET: Department of Workplace Standards: Division of Occupational: Safety and Health Compliance: Occupational Safety and Health
803 KAR 2:300. General. Kristi Redmon, Occupational Safety and Health standards specialist, represented the division.
In response to questions by Representative Damron, Ms. Redmon stated that these administrative regulations were not more stringent than federal requirements. The division could not simply reference the federal regulations because only certain standards were updated.
In response to questions by Representative Ford who agreed with Representative Damron that referencing the federal regulation would be a more efficient way of keeping the administrative regulations up-to-date with federal requirements, Ms. Redmon stated that these administrative regulations did not change compliance requirements for industry stakeholders.
A motion was made and seconded to approve the following amendment: to amend the RELATES TO paragraph to correct a citation. Without objection, and with agreement of the agency, the amendment was approved.
803 KAR 2:306. Occupational health and environmental controls.
A motion was made and seconded to approve the following amendment: to amend Section 3(6)(a) to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendment was approved.
803 KAR 2:308. Personal protective equipment.
803 KAR 2:316. Welding, cutting, and brazing.
803 KAR 2:320. Toxic and hazardous substances.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, 3, 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.
803 KAR 2:425. Toxic and hazardous substances.
803 KAR 2:500. Maritime employment.
ENERGY AND ENVIRONMENT CABINET: Department for Natural Resources: Office of Mine Safety and Licensing: Miner Training, Education and Certification
805 KAR 7:020. Training and certification of inexperienced miners. Amy Denham, executive secretary; Johnny Greene, executive director; and Michael Mullins, administrative regulation coordinator, represented the office.
A motion was made and seconded to approve the following amendment: to amend Section 1(1) to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendment was approved.
Sanctions and Penalties
805 KAR 8:060. Criteria for the imposition and enforcement of sanctions against licensed premises.
A motion was made and seconded to approve the following amendments: to amend 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.
PUBLIC PROTECTION CABINET: Department of Housing, Buildings and Construction: Division of Heating, Ventilation and Air Conditioning: Heating, Ventilation, and Air Conditioning Licensing Requirements
815 KAR 8:100. Criteria for local jurisdiction HVAC programs. Dawn M. Bellis, general counsel; Timothy R. House, acting director of HVAC and director of the Division of Plumbing; and Richard Moloney, commissioner, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add 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 Chapter 13A.220; and (3) to amend Sections 1 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.
Division of Plumbing: Plumbing
815 KAR 20:020. Parts or materials list.
A motion was made and seconded to approve the following amendment: to amend Section 5(20)(h) to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendment was approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Health Policy: State Health Plan
900 KAR 5:020. State Health Plan for facilities and services. Carrie Banahan, executive director, represented the office.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to change the edition date of the material incorporated by reference and correct the agency name; and (2) to amend the material incorporated by reference to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Certificate of Need
900 KAR 6:020. Certificate of need application fees schedule.
A motion was made and seconded to approve the following amendments: 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.
Department for Aging and Independent Living: Division of Quality Living: Aging Services
910 KAR 1:240. Certification of assisted-living communities. Rebel Baker, branch manager; Shirley Eldridge, internal policy analyst III; and Phyllis Sosa, assistant director, represented the division.
In response to questions by Representative Damron, Ms. Sosa stated that the division worked with Representative Susan Westrom to draft this administrative regulation in compliance with 2010 House Bill 444, which Representative Susan Westrom sponsored. There was not opposition during the public hearing and public comment period.
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 8 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: Staff apprised Subcommittee members that staff assistant, Jennifer Beeler, would be transferring from the Administrative Regulation Review Subcommittee to the Transportation Committee. Staff and Subcommittee members thanked Ms. Beeler for her service.
The following administrative regulations were deferred to the September 14, 2010, meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Veterinary Examiners: Board
201 KAR 16:030 & E. License, renewal notice, exemption.
TOURISM, ARTS AND HERITAGE CABINET: Office of the Secretary: Office
300 KAR 2:040. Kentucky Film Industry Incentives Application and Fees.
Department of Parks: Parks and Campgrounds
304 KAR 1:040. Campgrounds. Catherine York, deputy general counsel, and Sam Devine, customer service director, represented the department.
In response to questions by Representative Ford, Ms. York stated that this administrative regulation was necessary to clarify that joyriding in a nonlicensed motorized vehicle on a state campground was prohibited, except for those used by mobility-impaired persons. Mr. Devine stated that there had been near accidents and numerous complaints. Ms. York stated that this did not affect areas like the Daniel Boone National Forest because it was outside the jurisdiction of a state campground. A state campground consisted of an area within a state park where camping facilities were available and that is located after a post where a prospective camper paid for camping privileges.
In response to a question by Senator Pendleton, Ms. York stated that the intent of this administrative regulation was to allow entry and exit of nonlicensed motorized vehicles but to prohibit joyriding within the campground.
In response to questions by Co-Chair Tori, Ms. York stated that golf carts were included in the category of a nonlicensed motorized vehicle. Some campgrounds were too small to facilitate traffic from nonlicensed motorized vehicles. Those persons who did not qualify as mobility impaired but who had a statement from a physician indicating a mobility difficulty, temporary or permanent, would also qualify to use a nonlicensed motorized vehicle within a state campground.
Senator Pendleton requested that the agency further amend this administrative regulation to clarify what constituted joyriding, which vehicles were included in the category of nonlicensed motorized vehicles, and what options were available for golf cart usage.
Co-Chair Combs requested that the agency examine and consider eliminating redundancy with this administrative regulation and other existing laws.
A motion was made and seconded to defer this administrative regulation in order to amend it to clarify the agency's intent. Ms. York stated that the department would agree to defer this administrative regulation. Without objection, and with agreement of the agency, the motion was approved.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Kentucky Board of Education: Department of Education: School Administration and Finance
702 KAR 3:246. School council allocation formula: KETS District Administrative System Chart of Accounts.
Pupil Transportation
702 KAR 5:110. Vocational pupils, reimbursement for.
Office of Instruction
704 KAR 3:305. Minimum requirements for high school graduation.
PUBLIC PROTECTION CABINET: Kentucky Horse Racing Commission: Quarter Horse, Appaloosa and Arabian Racing
811 KAR 2:020 & E. Licensing quarter horse, appaloosa or arabian racing.
811 KAR 2:140 & E. Licensing of racing associations.
Department of Housing, Buildings and Construction: Division of Plumbing
815 KAR 20:100. Joints and connections. Dawn M. Bellis, general counsel; Timothy R. House, director of the Division of Plumbing; and Richard Moloney, commissioner, represented the division.
Mr. House stated that the department wanted to defer consideration of this administrative regulation. Without objection, upon request of the division, the administrative regulation was deferred to the September 14, 2010 meeting of the Subcommittee.
The subcommittee adjourned at 2 p.m. until September 14, 2010.