Call to Order and Roll Call
The October meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, October 11, 2016, at 1:00 PM, in Room 149 of the Capitol Annex. Senator Ernie Harris, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Ernie Harris, Co-Chair; Representative Mary Lou Marzian, Co-Chair; Senators Julie Raque Adams, Perry B. Clark, and Alice Forgy Kerr; Representatives Linda Belcher, and Tommy Turner.
Guests: Darrell Johnson, University of Kentucky Regulatory Services; John Ghaelian, Kevin Winstead, Attorney General’s Office; Richard Bertelson, Department of Revenue; Brian Judy, Sonja Minch, Board of Barbering; Nathan Goldman, Board of Nursing; Amy Barker, Deaidra Douglas, Mark Filburn, Department of Criminal Justice Training; Ann DAngelo, Department of Transportation; Andrea Fryman, Morehead State University; Chuck Stribling, Michael Swansburg, Labor Cabinet; Steve Humphress, Melissa McQueen, Department of Alcoholic Beverage Control; Jared Downs, Tim House, Steve Milby, Department of Housing, Building and Construction; Laura Begin, Robert Brawley, Andrea Flinchum, Department of Public Health; Stephanie Brammer-Barnes, John Inman, Office of Inspector General; Maria Lewis, Department for Income Support; Elizabeth Caywood, Department for Community Based Services; Steve Kennedy, Tri-City Barber College.
LRC Staff: Sarah Amburgey, Emily Caudill, Betsy Cupp, Ange Darnell, Emily Harkenrider, Karen Howard, Carrie Klaber, and Donna Little.
The Administrative Regulation Review Subcommittee met on Tuesday, October 11, 2016, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
AGRICULTURAL EXPERIMENT STATION: Seed
12 KAR 1:116. Sampling, analyzing, testing, and tolerances. Darrell Johnson, executive director, represented the University of Kentucky, Division of Regulatory Services.
12 KAR 1:140. Permits, reports, and fees for persons using own tags.
12 KAR 1:155. Schedule of charges for samples submitted for testing.
In response to questions by Co-Chair Harris, Mr. Johnson stated that the fee increases only covered the increased costs of the testing kits. Fees had not been increased since 2012. There were no public comments expressing concern pertaining to the fee increases.
A motion was made and seconded to approve the following amendments: to amend Section 1 to: (1) add a definition for "free test; and (2) comply with the drafting and formatting requirements of KRS Chapter 13A." Without objection, and with agreement of the agency, the amendments were approved.
OFFICE OF THE ATTORNEY GENERAL: Office of Consumer Protection: Office
40 KAR 2:145. Funeral planning declaration form. John Ghaelian, assistant attorney general, and Kevin Winstead, assistant attorney general, represented the office.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to update the edition date of the Funeral Planning Declaration Form; and (2) to clarify on the form that signatures shall be obtained from the declarant, witnesses, and notary public to be consistent with the language in the administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
40 KAR 2:150. Cremation forms and inspections.
In response to a question by Representative Belcher, Mr. Winstead stated that funeral directing related to cremation, if for profit, would need to be done in conjunction with a licensed funeral home or funeral director. Some crematories were separate from a licensed funeral home or funeral director. The office would investigate further and provide Representative Belcher with a more in-depth summary of cremation requirements.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; (2) to amend Section 1 to reference declarants in conjunction with references to decedents; and (3) to amend Sections 1, 3, and 6 to: (a) clarify that the July 15, 2016 date is not applying retroactively, but that it is the effective date for KRS 367.97501 and 367.97527, which phased out the Preneed Cremation Authorization Form, CR-3; and (b) comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Ad Valorem Tax; State Assessment
103 KAR 8:160. Valuation of municipal solid waste landfill facilities. Richard Bertelson, staff attorney, represented the department.
In response to questions by Co-Chair Harris, Mr. Bertelson stated that landfill valuation for tax assessment purposes was based on tipping fees in dollars per ton over the economic life of the landfill, divided for a yearly average. The economic life of a landfill was determined based on how much waste the site could accept. The administrative regulation was amended to revise valuation calculations based on comments from stakeholders. The royalty rate was the leasing rate for a municipality to use a privately-owned landfill property. The discount rate was the return on investment.
GENERAL GOVERNMENT CABINET: Board of Barbering: Board
201 KAR 14:125. Teacher requirements. Brian Judy, assistant attorney general, and Sonja Minch, administrator, represented the board. Steve Kennedy, owner, Tri-city Barber College, appeared in support of this administrative regulation.
In response to questions by Co-Chair Harris, Ms. Minch stated that this administrative regulation was amended to require 600 hours of instructional experience under supervision, rather than twelve (12) months, because 600 hours was a more specific standard. If an applicant was unable to complete 600 hours within the twelve (12) month time frame, the applicant may submit an extension request. Mr. Kennedy stated that this administrative regulation would ensure good educators for barbering schools. Ms. Minch stated that the board reached out to all nine (9) barbering schools without any negative feedback regarding these amendments.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add citations; (2) to amend Section 1 to clarify the examinations for which the passing score of eighty (80) percent applies; and (3) to amend Sections 3, 7, and 13 for: (a) clarity; and (b) compliance 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 20:411. Sexual Assault Nurse Examiner Program standards and credential requirements. Nathan Goldman, general counsel, represented the board.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Criminal Justice Training: Law Enforcement Foundation Program Fund
503 KAR 5:090. Participation: requirements; application; withdrawal. Amy Barker, assistant general counsel, and Mark Filburn, commissioner, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2(2)(d) to require completion of a forty (40) hour basic officer skills or new police chief orientation course for an officer who has completed basic training in the past but has had a separation of employment for more than thirty-six (36) months; (2) to amend Sections 5 and 7 to incorporate by reference the Application for Police Training Incentive form; and (3) 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.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Motor Carriers
601 KAR 1:231. Repeal of 601 KAR 1:025, 601 KAR 1:029, 601 KAR 1:060, 601 KAR 1:075, 601 KAR 1:095, 601 KAR 1:101, 601 KAR 1:110, 601 KAR 1:145, 601 KAR 1:190, and 601 KAR 1:230. Ann D’Angelo, assistant general counsel, represented the cabinet.
In response to questions by Co-Chair Harris, Ms. D’Angelo stated that the cabinet was confident that these administrative regulations were superfluous and should be repealed.
Co-Chair Harris stated that it was important to repeal unnecessary administrative regulations in a timely manner.
Senator Clark stated that legislators should also repeal unnecessary statutes timely, such as if a statute is not withstood in a bill because the statute is superfluous.
In response to a question by Co-Chair Marzian, Ms. D’Angelo stated that the agency amendment removed 601 KAR 1:025 from the list of administrative regulations to be repealed because there was a federal mandate that required it. The cabinet planned to repeal and refile this subject matter as part of another administrative regulation, but realized that the repeal should wait until the other administrative regulation was ready.
A motion was made and seconded to approve the following amendments: to amend the TITLE; NECESSITY, FUNCTION, AND CONFORMITY paragraph; and Section 1 to remove 601 KAR 1:025 from the list of administrative regulations to be repealed because there was a federal mandate in effect that required that administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
Administration
601 KAR 2:011. Repeal of 601 KAR 2:010.
Motor Vehicle Tax
601 KAR 9:111. Repeal of 601 KAR 9:010, 601 KAR 9:020, 601 KAR 9:060, 601 KAR 9:065, 601 KAR 9:095, and 601 KAR 9:105.
Transportation of Solid Waste
601 KAR 40:011. Repeal of 601 KAR 40:010.
Department of Aviation: Airport Safety Standards
602 KAR 20:091. Repeal of 602 KAR 20:090.
Department of Highways: Construction and Materials
603 KAR 1:031. Repeal of 603 KAR 1:030.
Right-of-way
603 KAR 4:046. Repeal of 603 KAR 4:045.
Traffic
603 KAR 5:311. Repeal of 603 KAR 5:020, 603 KAR 5:030, 603 KAR 5:080, 603 KAR 5:090, 603 KAR 5:240, and 603 KAR 5:301.
A motion was made and seconded to approve the following amendments: to amend the TITLE; NECESSITY, FUNCTION, AND CONFORMITY paragraph; and Section 1 to remove 603 KAR 5:240 from the list of administrative regulations to be repealed because KRS 177.074 requires it. Without objection, and with agreement of the agency, the amendments were approved.
Office for Transportation Delivery: Mass Transportation
603 KAR 7:071. Repeal of 603 KAR 7:010, 603 KAR 7:040, 603 KAR 7:050, 603 KAR 7:060, and 603 KAR 7:070.
Department of Vehicle Regulation: Motor Vehicle Commission: Commission
605 KAR 1:011. Repeal of 605 KAR 1:010.
MOREHEAD STATE UNIVERSITY: Board of Regents: Board
755 KAR 1:080. Capital construction procedures. Andrea Fryman, business manager, represented the board.
In response to questions by Co-Chair Harris, Ms. Fryman stated that the $100,000 salary estimation included benefits. The estimate consisted of several potential positions. Existing staff was currently able to fulfill demand, but it may be necessary to hire more employees for future needs. This administrative regulation would allow decisions to be made by the board, rather than the state level, for increased efficiency.
In response to a question by Senator Raque Adams, Ms. Fryman stated that sometimes there was a delay in projects because the board had to wait on determinations from the state. This administrative regulation would allow the board to work directly with contractors.
Co-Chair Marzian stated that this issue may need to be reviewed by the Interim Joint Committee on Appropriations and Revenue or the Capital Projects and Bond Oversight Committee.
LABOR CABINET: Department of Workforce Standards: Division of Safety and Health Compliance: Division of Occupational Safety and Health Education and Training: Occupational Safety and Health
803 KAR 2:180. Recordkeeping, reporting, statistics. Chuck Stribling, occupational safety and health federal – state coordinator, and Michael Swansburg, general counsel, represented the division.
A motion was made and seconded to approve the following amendments: to amend Section 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.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Fair Trade, Pricing and Sales
804 KAR 3:081. Repeal of 804 KAR 3:080. Steve Humphress, general counsel, and Melissa McQueen, staff attorney, represented the department.
In response to a question by Co-Chair Harris, Mr. Humphress stated that the department was confident that these administrative regulations were superfluous and should be repealed.
Licensing
804 KAR 4:041. Repeal of 804 KAR 4:040, 804 KAR 4:050, 804 KAR 4:050, 804 KAR 4:150, 804 KAR 4:310, 804 KAR 4:340, and 804 KAR 4:385.
Conduct of Business; Employees
804 KAR 5:031. Repeal of 804 KAR 5:030 and 804 KAR 5:050.
Retail Premises
804 KAR 7:051. Repeal of 804 KAR 7:050.
Transportation of Alcoholic Beverages
804 KAR 8:041. Repeal of 804 KAR 8:040 and 804 KAR 8:060.
Quotas
804 KAR 9:021. Repeal of 804 KAR 9:020 and 804 KAR 9:030.
Malt Beverage Equipment, Supplies, and Service
804 KAR 11:021. Repeal of 804 KAR 11:020.
Department of Housing, Buildings and Construction: Division of Building Code Enforcement: Plumbing
815 KAR 20:020. Parts or materials list. Jared Downs, general counsel; Tim House, deputy commissioner; and Steve Milby, commissioner, represented the department.
In response to questions by Co-Chair Harris, Mr. House stated that this administrative regulation was required to use brand names, rather than product descriptions, because there were no national standards for these materials. For example, there was not a national standard for electric tankless water heaters. Kentucky and Illinois were the only states that required a temperature relief valve for water heaters; however, because technology had improved, the department amended this administrative regulation to require only a pressure relief valve. The plumbing industry requested these changes.
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 20:080. Waste pipe size.
815 KAR 20:090. Soil, waste, and vent systems.
815 KAR 20:120. Water supply and distribution.
In response to questions by Senator Clark, Mr. Milby stated that NFPA 13D was the code for these specific fire protection systems. Because there was not a national standard, this administrative regulation was required to use brand names, rather than product descriptions.
A motion was made and seconded to approve the following amendments: to amend Section 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.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Division of Epidemiology and Health Planning: Communicable Diseases
902 KAR 2:020 & E. Reportable disease surveillance. Laura Begin, regulation coordinator; Dr. Robert Brawley, chief of infectious diseases; and Andrea Flinchum, program manager, represented the division.
Office of Inspector General: Health Services and Facilities
902 KAR 20:058. Operation and services; primary care center. John Inman, deputy inspector general, and Stephanie Brammer – Barnes, policy analyst, represented the office.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add citations; and (2) to amend Sections 3, 4, 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.
Department for Income Support: Child Support Enforcement: Child Support
921 KAR 1:380. Child Support Enforcement Program application and intergovernmental process. Marcia Lewis, regional 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 Sections 1 through 4 and 6 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Community Based Services: Division of Protection and Permanency: Child Welfare
922 KAR 1:151. Repeal of 922 KAR 1:150, 922 KAR 1:170, 922 KAR 1:210, and 922 KAR 1:230. Elizabeth Caywood, executive advisor, represented the division.
Child Welfare
922 KAR 1:500. Educational and training vouchers.
Other Business: Co-Chair Harris stated reminded agencies about a requirement for repealer administrative regulations. In repealer administrative regulations, the NECESSITY, FUNCTION, AND CONFORMITY paragraph must include the reason for repeal of an existing administrative regulation. It is helpful if the reason for repeal is more specific than obsolescence. If a statute previously required the promulgation of an administrative regulation, the NECESSITY, FUNCTION, AND CONFORMITY paragraph should explain why that administrative regulation is no longer necessary, such as a statutory change or a replacement administrative regulation. Combining smaller administrative regulations into a larger administrative regulation is not always the best option. (Note from the Regulations Compiler: The statutory requirements for this paragraph within repealer administrative regulations are established in KRS 13A.310(3)(a)2.)
The following administrative regulations were deferred to the November 7, 2016, meeting of the Subcommittee:
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Game
301 KAR 2:049. Small game and furbearer hunting and trapping on public areas.
301 KAR 2:251. Hunting and trapping seasons and limits for furbearers.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Administration
601 KAR 2:030 & E. Ignition interlock.
Department of Aviation: Airport Development
602 KAR 15:011. Repeal of 602 KAR 15:010.
Division of Planning
603 KAR 9:021. Repeal of 603 KAR 9:020.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Board of Education: Department of Education: School Administration and Finance
702 KAR 3:171. Repeal of 702 KAR 3:170.
Instructional Programs
705 KAR 4:231. General program standards for secondary career and technical education programs.
Instructional Programs
780 KAR 4:012. Repeal of 780 KAR 4:010.
LABOR CABINET: Department of Workforce Standards: Division of Safety and Health Compliance: Division of Occupational Safety and Health Education and Training: Occupational Safety and Health
803 KAR 2:412. Fall protection.
The Subcommittee adjourned at 1:55 p.m. until November 7, 2016, at 1 p.m.