Call to Order and Roll Call
The August meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, August 14, 2012, at 1:00 PM, in Room 149 of the Capitol Annex. Senator David Givens, Committee Member, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senators David Givens and Joey Pendleton; Representatives Robert R. Damron, Danny Ford, and Jimmie Lee.
Guests: Michael Carr, Gary Stephens, Education Professional Standards Board; Richard Dobson, DeVon Hankins, Ricky Haven, Doug Hendrix, Department of Revenue; Michael Burleson, Board of Pharmacy; Becky Klusch, Scott D. Majors, Board of Physical Therapy; Larry Disney, Jim Grawe, Real Estate Appraisers Board; Clint Quarles, Department of Agriculture; Mona Juett, Leigh Powers, Elaine Walker, Department of Parks; Michael Haines, Steve Hoffman, Department for Natural Resources; Amy Barker, Amber Arnett; Department of Corrections; Morgan Sprague, Heather Wagers; Kentucky State Police; Dawn Bellis, Libby Simpson, Department of Housing, Buildings and Construction; Elizabeth Fiehler and Phyllis Sosa, Department for Aging and Independent Living.
LRC Staff: Dave Nicholas, Emily Caudill, Sarah Amburgey, Emily Harkenrider, Karen Howard, Betsy Cupp, and Laura Napier.
The Administrative Regulation Review Subcommittee met on Tuesday, August 14, 2012, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
EDUCATION PROFESSIONAL STANDARDS BOARD: Teaching Certificates
16 KAR 2:120. Emergency certification and out-of-field teaching. Michael Carr, director of certification, and Gary A. Stephens, staff attorney, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 through 5 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend Section 2 to require an applicant for an emergency certificate for substitute teaching to complete the Form TC-4 using the EPSB On-line TC-4 Application System in accordance with the implementation guide incorporated by reference; and (3) to amend Section 5 to incorporate by reference the required Form TC-4. Without objection, and with agreement of the agency, the amendments were approved.
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. Richard Dobson, executive director, Office of Sales and Excise Taxes, and Ricky Haven, division director, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs and Section 1 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 2 and 3 and two (2) forms incorporated by reference to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to amend Section 4 to change the edition date of the two (2) forms incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Board of Pharmacy: Board
201 KAR 2:340. Special pharmacy permit for clinical practice. Michael Burleson, executive director, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add KRS 315.035; 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.
Board of Physical Therapy: Board
201 KAR 22:040. Procedure for renewal or reinstatement of a credential for a physical therapist or a physical therapist assistant. Becky Klusch, retiring executive director, and Scott D. Majors, presumptive executive director, represented the board.
Ms. Klusch announced her retirement from the board and introduced Mr. Majors as the presumptive executive director. Acting Chair, Senator Givens thanked Ms. Klusch for her years of service.
201 KAR 22:045. Continued competency requirements and procedures.
A motion was made and seconded to approve the following amendments: to amend Sections 2 and 3 to make technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky Real Estate Appraisers Board: Board
201 KAR 30:030. Types of appraisers required in federally-related transactions; certification and licensure. Jim Grawe, assistant attorney general, and Larry Disney, executive director, represented the board.
A motion was made and seconded to approve the following amendments: to amend Section 2 to make a technical correction and to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 30:125. Continuing education for appraisers.
201 KAR 30:180. Distance education standards.
A motion was made and seconded to approve the following amendment: to amend Section 3 to correct the name of the referenced agency. Without objection, and with agreement of the agency, the amendment was approved.
201 KAR 30:190. Educational requirements for certification.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 3, 4, and 6 to correct internal cross-references. Without objection, and with agreement of the agency, the amendments were approved.
Department of Agriculture: Division of Regulation and Inspection: Amusement Rides
302 KAR 16:091. Rides and attractions not included in the definition of amusement ride or attraction. Clint Quarles, staff attorney, represented the division.
TOURISM, ARTS AND HERITAGE CABINET: Department of Parks: Parks and Campgrounds
304 KAR 1:040. Campgrounds. Mona Juett, legislative liaison; Leigh Powers, general counsel; and Elaine Walker, executive director, represented the department.
In response to a question by Acting Chair Senator Givens, Ms. Powers stated that the department had problems in the past with golf carts blocking access areas. Ms. Walker stated that this administrative regulation allowed golf carts in some areas where they were previously prohibited. Ms. Powers stated that all-terrain vehicles were also now allowed in some areas where they were previously prohibited. Parking sanctions were also established in this administrative regulation.
In response to a question by Representative Ford, Ms. Powers stated that this administrative regulation expanded the areas allowed for use by campers using golf carts, all-terrain vehicles, and similar vehicles.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 2 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend Section 2(1) to clarify that if a permit is revoked for a violation of this administrative regulation, the permit fee shall be nonrefundable. Without objection, and with agreement of the agency, the amendments were approved.
304 KAR 1:080. Kentucky Proud TM Promotion Program.
A motion was made and seconded to approve the following amendments: to amend the TITLE, the STATUTORY AUTHORITY paragraph, and Sections 1 and 2 to comply with the drafting and formatting 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: Division of Mine Permits: Bond and Insurance Requirements
405 KAR 10:011E. Repeal of 405 KAR 10:010 and 405 KAR 10:020. Michael Haines, general counsel, and Steve Hohmann, commissioner, represented the division.
In response to questions by Acting Chair Senator Givens, Mr. Hohmann stated that the federal Office of Surface Mining (OSM) required adequate reclamation bonding. OSM recently noted that Kentucky’s bonding system was inadequate and therefore deficient. The division established a work group that included industry representatives to develop adequate bonding requirements. The bonding amounts in these administrative regulations were those developed by the work group. OSM initially rejected these amounts; however, OSM viewed these amounts more favorably after an agreement that the division would support legislation during the 2013 Regular Session of the General Assembly to establish a statutory back-up bonding pool. If Kentucky did not make these changes, OSM may revert administration of this program back to the federal level, which would result in the loss of the abandoned mine program and a ten (10) to twenty (20) percent increase in bonding requirements. Industry representatives participated in the work group and did not actively support the changes but understood the necessity of the changes.
In response to a question by Representative Ford, Mr. Hohmann stated that OSM initially rejected the bonding amounts established in these administrative regulations, but viewed the amounts more favorably after an agreement that the division would support legislation during the 2013 Regular Session of the General Assembly to establish a statutory back-up bonding pool. Other surrounding states used this same, two (2) pronged approach to reinforce bonding adequacy. The abandoned mine program received approximately forty-eight (48) million dollars from the federal government each year. The abandoned mine program was different from the reclamation bond issues established in these administrative regulations; however, a consequence of not providing for adequate bonding in these administrative regulations was the potential loss of the abandoned mine program and its accompanying yearly federal appropriation.
In response to questions by Representative Lee, Mr. Hohmann stated that the amount for the abandoned mine program was determined by OSM based on current coal production levels in Kentucky and a national formula. The total appropriation changed each year. The appropriation amount was determined by OSM at the beginning of each fiscal year and OSM issued a distribution chart each year around November. OSM monitored how the funds were spent.
405 KAR 10:015 & E. General bonding provisions.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to delete a repealed statutory citation; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 6 and 8 through 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.
405 KAR 10:030. General requirements for liability insurance.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to delete a repealed statutory citation; and (2) to amend the TITLE; the NECESSITY, FUNCTION, AND CONFORMITY paragraph; and Sections 1 and 2 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Performance Standards for Surface Mining Activities
405 KAR 16:020. Contemporaneous reclamation.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to delete a repealed statutory citation; and (2) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1 through 6 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:130. Western Kentucky Correctional Complex. Amy Barker, assistant general counsel, and Amber Arnett, staff attorney, 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 comply with the drafting requirements of KRS Chapter 13. Without objection, and with agreement of the agency, the amendments were approved.
501 KAR 6:140. Bell County Forestry Camp.
A motion was made and seconded to approve the following amendments: to amend Section 1 and the material incorporated by reference to comply with the drafting requirements of KRS Chapter 13. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky State Police: Driver Training
502 KAR 10:120 & E. Hazardous materials endorsement requirements. Morgain M. Sprague, counsel, and Heather Wagers, counsel, represented the KSP.
In response to a question by Acting Chair Senator Givens, Ms. Sprague stated that a CDL instructor had a traditional CDL license; however, the instructor also had a CDL certification. There was a circular problem with this administrative regulation that the revision was intended to correct. Subcommittee staff stated that there was a difference between “instruction permit” and “instructor permit,” which may have added to confusion about the requirements.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1 through 4 to update citations; (2) to amend Sections 1 and 3 to update agency names; and (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2 through 5 to comply with the drafting 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 Plumbing: Plumbing
815 KAR 20:020. Parts or materials list. Dawn M. Bellis, general counsel, represented the division.
A motion was made and seconded to approve the following amendments: to amend Section 5 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
815 KAR 20:191. Minimum fixture requirements.
Division of Building Codes Enforcement: Electrical
815 KAR 35:060. Licensing of electrical contractors, electricians, and master electricians pursuant to KRS 227A.060. Dawn M. Bellis, general counsel, and Libby Simpson, electrical licensing supervisor, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 and 8 and three (3) forms incorporated by reference to: (a) require that the applicant provide the last six (6) digits of the social security number, rather than the entire number; and (b) require an applicant or licensee to provide a verified criminal background check conducted by the Department of Kentucky State Police within sixty (60) days of an initial or renewal application; and (2) to amend Section 10 to change the edition date of the three (3) forms incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Aging and Independent Living: Division of Quality Living: Aging Services
910 KAR 1:190. Nutrition program for older persons. Elizabeth Fiehler, dietician, and Phyllis Sosa, assistant director, represented the division.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 4, 5, 6, and 9 to 13 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Other Business: Memorial arrangements were announced and a moment of silence held for Mike Haydon, the Governor’s Chief of Staff.
The following administrative regulations were deferred to the September 11, 2012, meeting of the Subcommittee:
FINANCE AND ADMINISTRATION CABINET: Kentucky Retirement Systems: General Rules
105 KAR 1:400 & E. Federal taxation limitation year.
105 KAR 1:420. 401(h) account established under 26 USC 401(h).
105 KAR 1:430. General compliance with federal tax laws.
GENERAL GOVERNMENT CABINET: Board of Physical Therapy: Board
201 KAR 22:001. Definitions for 201 KAR Chapter 22.
KENTUCKY COMMUNITY AND TECHNICAL COLLEGE SYSTEM: Kentucky Board of Emergency Medical Services: Board
202 KAR 7:601. Training, education, and continuing education.
The Subcommittee adjourned at 1:45 p.m. until September 11, 2012.