Call to Order and Roll Call
The July meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, July 10, 2012, at 1:00 PM, in Room 149 of the Capitol Annex. Representative Johnny Bell, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Joe Bowen, Co-Chair; Representative Johnny Bell, Co-Chair; Senators David Givens, and Alice Forgy Kerr; Representatives Robert R. Damron, Danny Ford, and Jimmie Lee.
Guests: Melissa Justice, Kentucky Higher Education Assistance Authority; Colonel Steve Ballard, Kentucky National Guard; Brian Bishop, Board of Dentistry; Jonathan Buckley, David Cox, State Board of Licensure for Professional Engineers and Land Surveyors; Nathan Goldman, Paula Schenk, Morgan Ransdell, Board of Nursing; Dave Hise, Mark Mangeot, Karen Waldrop, Department of Fish and Wildlife; Amber Arnett, Amy Barker, Department of Corrections; Bob Elkins, James R. Gridor, Jr, Kristi Redmen, Labor Cabinet; Virginia V. Davis, Tony Dehner, Department of Alcoholic Beverage Control; Michael T. Davis, Marc A. Guilfoil, Mary Scollay, John Ward, Kentucky Horse Racing Commission; Rick Hiles, Ky HBPA; Andy Roberts, KHHA/KAEP; Dawn Bellis, Jack Coleman, David J. Moore, Ambrose Wilson, Department of Housing, Buildings and Construction; Allison Lile, Office of Health Policy; Rick Hiles, Ky HBPA; FD Marcum, and KAEP Andy Roberts, KHHA/KAEP.
The Administrative Regulation Review Subcommittee met on Tuesday, July 10, 2012, 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. Melissa Justice, senior associate counsel, represented the division.
A motion was made and seconded to approve the following amendment: to amend Section 6 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendment was approved.
GENERAL GOVERNMENT CABINET: Department of Military Affairs: Division of Administrative Services: Military Assistance Trust Funds
106 KAR 2:030. National Guard adoption benefit program. Colonel Steve Bullard, director of administrative services, represented the division.
In response to a question by Co-Chair Bowen, Colonel Bullard stated that Kentucky’s First Lady developed this program, which was adapted for the National Guard to correspond to the state employee benefit. Funding for the program was allocated from the military assistance trust fund.
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 Section 1 to correct statutory citations. Without objection, and with agreement of the agency, the amendments were approved.
Board of Dentistry: Board
201 KAR 8:562. Licensure of dental hygienists. Brian Bishop, executive director, represented the board.
A motion was made and seconded to approve the following amendments: to amend Sections 4, 15, and 17 to comply with the drafting and formatting requirements of KRS Chapter 13A. 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 18:220. Administrative hearings. Jonathan Buckley, general counsel, and David Cox, executive director, represented the board.
Board of Nursing: Board
201 KAR 20:450. Alternative program. Nathan Goldman, general counsel; Morgan Ransdell, board prosecutor; and Paula Schenk, manager of consumer protection, represented the board.
In response to a question by Representative Ford, Ms. Schenk stated that if a nurse voluntarily reported a substance abuse problem and completed the program successfully, there would not be officially documented disciplinary action by the board. Failure to adhere to the program may result in license revocation.
A motion was made and seconded to approve the following amendments: to amend Section 3 to correct minor drafting errors. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:510. Voluntary relinquishment of a license or credential.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Game
301 KAR 2:041. Shooting areas, dog training areas, commercial foxhound training enclosures, and bobwhite shoot-to-train season. David Hise, attorney; Mark Mangeot, legislative liaison; and Karen Waldrop, wildlife director, represented the department.
A motion was made and seconded to approve the following amendments: to amend Sections 3, 4, 6, 8, and 10 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 2:300. Black bears.
In response to a question by Co-Chair Bowen, Dr. Waldrop stated that the current bear population could withstand the proposed hunting season.
Hunting and Fishing
301 KAR 3:022. License, tag, and permit fees.
A motion was made and seconded to approve the following amendment: to amend Section 2(4) to change “Shooting Preserve Permit” to “Shooting Area Permit.” Without objection, and with agreement of the agency, the amendment was approved.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:050. Luther Luckett Correctional Complex. Amber Arnett, staff attorney, and Amy Barker, assistant general counsel, represented the department.
A motion was made and seconded to approve the following amendments: to amend Section 1 and the material incorporated by reference to conform to other departmental policies, clarify provisions, and correct minor drafting errors. Without objection, and with agreement of the agency, the amendments were approved.
501 KAR 6:110. Roederer Correctional Complex.
501 KAR 6:260. Procedures for recommendation of early termination of probation and review of compliance of supervised individuals.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 through 4 to clarify provisions; (2) to amend Sections 2 and 5 to correct citations; and (3) to amend Sections 1, 2, 3, and 5 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
501 KAR 6:280. Risk and needs assessment.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to correct statutory citations; and (2) to amend Section 1 and the material incorporated by reference to clarify provisions, correct minor drafting errors, and renumber the policies. 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: Division of Occupational Safety and Health Education and Training: Occupational Safety and Health
803 KAR 2:300. General. Bob Elkins, safety standards specialist; James R. Grider, Jr., assistant general counsel; and Kristi Redmon, health standards specialist, represented the division.
In response to questions by Co-Chair Bell, Ms. Redmon stated that these administrative regulations provided consistency in chemical labeling. This consistency should facilitate compliance, and the implementation cost was expected to be offset by the savings vis a vis fewer employee accidents and deaths. The changes affected agricultural operations that fell within the same scope of practice as the industrial facilities involved.
In response to a question by Senator Kerr, Ms. Redmon stated that an industry that used chemicals would be affected by these administrative regulations. New labeling and new data sheets were required. The primary expense was expected to be the cost for training regarding the new labeling. These administrative regulations contained requirements that Kentucky was mandated by the federal government to adopt. These requirements were not more stringent than the federal requirements.
Staff stated that the division had filed a FISCAL NOTE ON STATE OR LOCAL GOVERNMENT as part of the amendment process. These were federal requirements that Kentucky was mandated to adopt.
In response to a question by Representative Ford, Ms. Redmon stated that a farmer who repackaged chemicals for agricultural use would not be impacted by these amendments because requirements for repackaging for personal use were not being revised.
In response to a question by Co-Chair Bowen, Ms. Redmon stated that these administrative regulations were similar to administrative regulations mandated by the U.S. EPA to be adopted by Kentucky’s Department for Environmental Protection. Kentucky had a deadline of six (6) months to adopt these administrative regulations.
803 KAR 2:307. Hazardous materials.
803 KAR 2:309. General environmental controls.
803 KAR 2:313. Materials handling and storage.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct a citation; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Section 3 to comply with the drafting and formatting 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.
803 KAR 2:317. Special industries.
803 KAR 2:319. Commercial diving operations.
803 KAR 2:320. Toxic and hazardous substances.
A motion was made and seconded to approve the following amendments: to amend Sections 2 and 3 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:403. Occupational health and environmental controls.
803 KAR 2:405. Fire protection and prevention.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct citations; and (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. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:407. Adoption of 29 C.F.R. Part 1926.250-252.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add a citation; and (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. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:425. Toxic and hazardous substances.
A motion was made and seconded to approve the following amendment: to amend Section 2 for clarification. Without objection, and with agreement of the agency, the amendment was approved.
803 KAR 2:500. Maritime employment.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Licensing
804 KAR 4:370. Entertainment destination center license. Virginia V. Davis, legislative liaison, and Tony Dehner, commissioner, represented the department.
In response to a question by Senator Kerr, Mr. Dehner stated that entertainment districts similar to 4th Street Live were not precluded for the city of Lexington; however, Victorian Square had opted out of participation.
In response to questions by Senator Givens, Mr. Dehner stated that Newport on the Levee was the primary initiator of this administrative regulation. Subcommittee staff stated that subdivisions within the definition of “entertainment destination” were in accordance with the drafting requirements of KRS Chapter 13A.
Kentucky Horse Racing Commission: Thoroughbred Racing
810 KAR 1:018. Medication; testing procedures; prohibited practices. Marc A. Guilfoil, deputy executive director; Dr. Mary Scollay, equine medical director; and John Ward, executive director, represented the commission. Rick Hiles, president, Kentucky Horsemen’s Benevolent and Protective Association, and member of the Equine Drug Research Council, and Dr. Andy Roberts, veterinarian and member of the Equine Drug Research Council, appeared in opposition to these administrative regulations.
Mr. Hiles stated that the Equine Drug Research Council was opposed to provisions regarding adjunct bleeder medication, which was proven effective and used in human surgical procedures. The Equine Drug Research Council voted unanimously to accept these provisions regarding adjunct bleeder medication only after being promised by the Kentucky Horse Racing Commission that the KHRC would not seek to ban the medication lasix. Because the KHRC had voted to ban lasix by future administrative regulation, the Equine Drug Research Council was now voicing its original opposition to the provisions regarding adjunct bleeder medication. Additionally, the change from a maximum allowable limit of five (5) to two (2) micrograms of phenylbutazone for thoroughbreds was overburdensome. Kentucky was the only state proposing these measures, and there were different requirements for different breeds of horses, which was confusing. The horse industry in Kentucky was already in jeopardy, and these administrative regulations may cause further harm.
Dr. Roberts stated that the Equine Drug Research Council agreed to compromise by voting unanimously for approval of these administrative regulations, but the KHRC turned out to be acting in bad faith because it did not keep its promise to protect the current provisions for the use of lasix. The Equine Drug Research Council was required by statute to report to the General Assembly, and this testimony constituted that report.
In response to questions by Senator Givens, Mr. Hiles stated that he had not intended to testify on these administrative regulations until the KHRC voted to promulgate an administrative regulation to ban the use of lasix. Lasix was needed for therapeutic use on equine. Dr. Roberts stated that the Jockeys’ Guild wanted to ban lasix to bolster public perception of racing integrity and to make Kentucky’s administrative regulations commensurate with international standards. For these reasons, the Jockeys’ Guild lobbied the KHRC to approve a ban on lasix. Mr. Hiles stated that the racing industry in the United States wanted Kentucky to ban lasix as a pilot project to test the impact that other states may expect. Banning lasix would affect approximately ninety-five (95) percent of racing horses. Dr. Roberts stated that the Equine Drug Research Council was established by statute in 1985, and the KHRC had never before overridden a decision of the Equine Drug Research Council. New York had attempted banning lasix, and it resulted in the destruction of the local racing industry.
In response to questions by Co-Chair Bowen, Dr. Roberts stated that the therapeutic benefit of lasix was as a diuretic, one of the safest types of drugs. It removed excess water and prevented bleeding from broken capillaries. In horses that were not racing, lasix was primarily used for heart problems. Mr. Hiles stated that this was the first major dispute between the KHRC and the Equine Drug Research Council.
In response to a question by Senator Kerr, Mr. Hiles described the makeup of the Equine Drug Research Council, whose members were appointed by the governor. The Equine Drug Research Council voted unanimously to accept these administrative regulations only because the KHRC promised to protect the use of lasix if administered by the state veterinarian. Because the KHRC voted to promulgate an administrative regulation to ban the use of lasix, the Equine Drug Research Council was no longer in support of these administrative regulations.
Subcommittee staff stated that the administrative regulations for consideration at this Subcommittee meeting addressed phenylbutazone and who administered lasix, but did not place a ban on the use of lasix.
In response to questions by Representative Damron, Dr. Roberts stated that a ban on lasix had been voted on by the KHRC but the administrative regulation to that effect had not yet been filed. Mr. Hiles stated that the first part of the KHRC’s plan was to ban the use of lasix for graded stakes races. Lasix was used in European horse racing, but not on the actual day of racing. Dr. Roberts stated that the effects of lasix lasted about eight (8) hours and did not have an adverse effect on horses. Lasix did not cause severe dehydration if used properly. Mr. Hiles stated that delaying these administrative regulations would not have an adverse impact on this season’s Keeneland races.
Representative Damron stated that Mr. Hiles and Dr. Roberts had sufficiently informed this Subcommittee of the concerns regarding a ban on lasix; however, that administrative regulation had not yet been filed, and the remainder of the discussion needed to refocus on the administrative regulations currently on the agenda for consideration.
In response to a question by Co-Chair Bowen, Dr. Roberts stated that Kentucky had been a leader in positive reformation of the horse racing industry. The KHRC had played an important part in that leadership; however, the KHRC had recently experienced membership changes.
In response to a question by Representative Lee, Dr. Scollay stated that there were different drug standards for different breeds of horses because different types of races had different times for the prerace examinations. The concern was that if horses that were examined early, as thoroughbreds were, were still under effects of a drug, the drug may mask or obscure possible dangers to a jockey. Upon early examination, many horses were over the limit for phenylbutazone. Standardbred horses, on the other hand, were not examined until the warm-up period about one (1) hour prior to racing; therefore, the effects of the drugs would have had sufficient time to have worn off before the examination. Drug testing prohibited administering medicine too close to race time. There was usually a fine for a first offense of improper drug administration. A second offense may be grounds for disqualification. Mr. Hiles stated that the effects of phenylbutazone lasted approximately eight (8) hours. The threshold limit was two (2) micrograms for thoroughbreds and five (5) micrograms for harness racehorses and standardbreds. Dr. Scollay stated that these administrative regulations required injection, rather than oral administration, of phenylbutazone in thoroughbreds.
Representative Lee stated that consideration of a ban on lasix should take place once that administrative regulation was promulgated.
Representative Damron stated that he took exception to Dr. Roberts’ statement that the KHRC had played an important part in leadership; however, the KHRC had recently experienced membership changes. Representative Damron stated that Mr. Ward was an excellent choice to be the executive director, was quite competent, and that he had great respect for Mr. Ward’s expertise, professionalism, and integrity. Mr. Hiles stated that the comment was not intended toward Mr. Ward. Dr. Roberts stated that his issues were with the commissioners, not with staff of the KHRC.
Mr. Guilfoil stated that the process of amending these administrative regulations began in August 2011. The KHRC held three (3) town hall meetings, and the issues were extensively vetted. Mr. Guilfoil was not aware of a promise not to ban lasix in return for acceptance of these administrative regulations by the Equine Drug Research Council. The KHRC supported intravenous administration by a veterinarian to protect the integrity of racing. Dr. Scollay stated that the effects on horses from the withdrawal of adjunct bleeder medication had not been sufficiently studied, especially if the purpose was to prevent bleeding. Kentucky was in the minority of states that still allowed adjunct bleeder medication. Mr. Ward stated that adjunct bleeder medication requirements were for the purpose of protecting the integrity of horse racing in Kentucky in order to build a future for this sport and to meet international standards.
In response to a question by Senator Givens, Dr. Scollay stated that she had reported to the public that banning lasix was not a matter being considered by the KHRC, which was accurate at the time. Later, the KHRC determined that lasix should be banned.
Co-Chair Bell stated that Mr. Ward was a person of character and honesty. He did not approve of overzealous regulations pertaining to what citizens do with their animals on their own property. It was not the government’s role to require certain veterinarians for the administration of specific medications. Prohibiting administering phenylbutazone through feed seemed unwise. Kentucky’s walking horse industry was destroyed by overcorrection after problems, and Co-Chair Bell did not want the same to happen to the racing industry.
A motion was made and seconded to approve the following amendments: (1) to amend Section 6 to clarify provisions and to specify that the cost for administering lasix shall be twenty (20) dollars or less if the actual cost is lower; and (2) to amend Sections 1, 7, 8, 20, and 23 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
810 KAR 1:028. Disciplinary measures and penalties.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2, 4, 6, 7, and 8 to clarify provisions; (2) to amend the STATUTORY AUTHORITY and the NECESSITY, FUNCTION, AND CONFORMITY paragraphs to update citations; and (3) to amend Sections 2, 4, 5, 10, and 11 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
810 KAR 1:040. Drug, medication, and substance classification schedule and withdrawal guidelines.
Harness Racing
811 KAR 1:090. Medication; testing procedures; prohibited practices.
A motion was made and seconded to approve the following amendments: (1) to amend Section 6 to clarify provisions and to specify that the cost for administering lasix shall be twenty (20) dollars or less if the actual cost is lower; and (2) to amend Sections 1, 2, 7, 20, and 23 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
811 KAR 1:093. Drug, medication, and substance classification schedule and withdrawal guidelines.
811 KAR 1:095. Disciplinary measures and penalties.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2, 4, 6, 7, 8, and 9 to clarify provisions; (2) to amend the STATUTORY AUTHORITY and the NECESSITY, FUNCTION, AND CONFORMITY paragraphs to update citations; and (3) to amend Section 11 to comply with the formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Quarter Horse, Appaloosa and Arabian Racing
811 KAR 2:093. Drug, medication, and substance classification schedule and withdrawal guidelines.
811 KAR 2:096. Medication; testing procedures; prohibited practices.
A motion was made and seconded to approve the following amendments: (1) to amend Section 6 to clarify provisions and to specify that the cost for administering lasix shall be twenty (20) dollars or less if the actual cost is lower; and (2) to amend Sections 1, 7, 8, 20, and 23 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
811 KAR 2:100. Disciplinary measures and penalties.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2, 4, 6, 7, and 8 to clarify provisions; (2) to amend the STATUTORY AUTHORITY and the NECESSITY, FUNCTION, AND CONFORMITY paragraphs to update citations; and (3) to amend Sections 2, 4, 5, 10, and 11 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 of Housing, Buildings and Construction: Division of Plumbing: Plumbing
815 KAR 20:100. Joints and connections. Dawn M. Bellis, general counsel, and David J. Moore, division director, represented the division.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Health Policy: Data Reporting and Public Use Data Sets
900 KAR 7:030. Data reporting by health care providers. Allison Lile, healthcare data administrator, represented the office.
The following administrative regulations were deferred to the August 14, 2012, meeting of the Subcommittee:
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Office of Sales and Excise Taxes: Sales and Use Tax; Administration and Accounting
103 KAR 31:170 & E. Disaster area relief sales and use tax refunds.
KENTUCKY COMMUNITY AND TECHNICAL COLLEGE SYSTEM: Kentucky Board of Emergency Medical Services: Board
202 KAR 7:601. Training, education, and continuing education.
TOURISM, ARTS AND HERITAGE CABINET: Department of Parks: Parks and Campgrounds
304 KAR 1:040. Campgrounds.
304 KAR 1:080. Kentucky ProudTM Promotion Program.
ENERGY AND ENVIRONMENT CABINET: Department for Natural Resources: Division of Mine Permits: Bond and Insurance Requirements
405 KAR 10:011E. Repeal of 405 KAR 10:010 and 405 KAR 10:020.
The Subcommittee adjourned at 3:30 p.m. until August 14, 2012.