Kentucky Administrative Procedure Act

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The Kentucky Administrative Procedure Act is the law governing procedures for state administrative agencies to propose and issue regulations and provides for judicial review of agency adjudications and other final decisions in Kentucky. It can be found in Title III, Chapters 13A and 13B of the Kentucky Revised Statutes.^[1]

Chapter 13A: Administrative regulations

Section 13A.010: Definitions for chapter

Text of Section 13A.010:

As used in this chapter, unless the context otherwise requires:

(1) "Administrative body" means each state board, bureau, cabinet, commission, department, authority, officer, or other entity, except the General Assembly and the Court of Justice, authorized by law to promulgate administrative regulations;

(2) "Administrative regulation" means each statement of general applicability promulgated by an administrative body that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any administrative body. The term includes an existing administrative regulation, a new administrative regulation, an emergency administrative regulation, an administrative regulation in contemplation of a statute, and the amendment or repeal of an existing administrative regulation, but does not include:

(a) Statements concerning only the internal management of an administrative body and not affecting private rights or procedures available to the public;

(b) Declaratory rulings;

(c) Intradepartmental memoranda not in conflict with KRS 13A.130;

(d) Statements relating to acquisition of property for highway purposes and statements relating to the construction or maintenance of highways; or

(e) Rules, regulations, and policies of the governing boards of institutions that make up the postsecondary education system defined in KRS 164.001 pertaining to students attending or applicants to the institutions, to faculty and staff of the respective institutions, or to the control and maintenance of land and buildings occupied by the respective institutions;

(3) "Adopted" means that an administrative regulation has become effective in accordance with the provisions of this chapter;

(4) "Authorizing signature" means the signature of the head of the administrative body authorized by statute to promulgate administrative regulations;

(5) "Commission" means the Legislative Research Commission;

(6) "Effective" means that an administrative regulation has completed the legislative subcommittee review established by KRS 13A.290, 13A.330, and 13A.331;

(7) "Federal mandate" means any federal constitutional, legislative, or executive law or order that requires or permits any administrative body to engage in regulatory activities that impose compliance standards, reporting requirements, recordkeeping, or similar responsibilities upon entities in the Commonwealth;

(8) "Federal mandate comparison" means a written statement containing the information required by KRS 13A.245;

(9) "Filed" or "promulgated" means that an administrative regulation, or other document required to be filed by this chapter, has been submitted to the Commission in accordance with this chapter;

(10) "Last effective date" means the latter of:

(a) The most recent date an ordinary administrative regulation became effective, without including the date a technical amendment was made pursuant to KRS 13A.040(10), 13A.2255(2), or 13A.312; or

(b) The date a certification letter was filed with the regulations compiler for that administrative regulation pursuant to KRS 13A.3104(4), if the letter stated that the administrative regulation shall remain in effect without amendment.

(11) "Legislative committee" means an interim joint committee, a House or Senate standing committee, a statutory committee, or a subcommittee of the Legislative Research Commission;

(12)"Local government" means and includes a city, county, urban-county, charter county, consolidated local government, special district, or a quasi-governmental body authorized by the Kentucky Revised Statutes or a local ordinance;

(13) "Local government" means and includes a city, county, urban-county, charter county, consolidated local government, special district, or a quasi-governmental body authorized by the Kentucky Revised Statutes or a local ordinance;

(14)"Proposed administrative regulation" means an administrative regulation that:

(a) Has been filed by an administrative body; and

(b) Has not become effective or been withdrawn;

(15) "Regulatory impact analysis" means a written statement containing the provisions required by KRS 13A.240;

(16) "Small business" means a business entity, including its affiliates, that:

(a) Is independently owned and operated; and

(b)

1. Employs fewer than one hundred fifty (150) full-time employees or their equivalent; or

2. Has gross annual sales of less than six million dollars ($6,000,000);

(17) "Statement of consideration" means the document required by KRS 13A.280 in which the administrative body summarizes the comments received, its responses to those comments, and the action taken, if any, as a result of those comments and responses;

(18) "Subcommittee" means the Administrative Regulation Review Subcommittee, any other subcommittee of the Legislative Research Commission, an interim joint committee, or a House and Senate standing committee;

(19) "Tiering" means the tailoring of regulatory requirements to fit the particular circumstances surrounding regulated entities; and

(20) "Written comments" means comments submitted to the administrative body's contact person identified pursuant to KRS 13A.220(6)(d) via hand delivery, United States mail, e-mail, or facsimile and may include but is not limited to comments submitted internally from within the promulgating administrative body or from another administrative body.^[1]

Section 13A.012

Text of Section 13A.012:

Repealed, 2005.^[1]

Section 13A.015

Text of Section 13A.015:

Repealed, 2003.^[1]

Section 13A.016

Text of Section 13A.016:

Repealed, 2003.^[1]

Section 13A.017

Text of Section 13A.017:

Repealed, 2003.^[1]

Section 13A.020: Administrative Regulation Review Subcommittee; membership; meetings; vote required to act

Text of Section 13A.020:

(1) There is hereby created a permanent subcommittee of the Legislative Research Commission to be known as the Administrative Regulation Review Subcommittee. The subcommittee shall be composed of eight (8) members appointed as follows: three (3) members of the Senate appointed by the President; one (1) member of the minority party in the Senate appointed by the Minority Floor Leader in the Senate; three (3) members of the House of Representatives appointed by the Speaker of the House of Representatives; and one (1) member of the minority party in the House of Representatives appointed by the Minority Floor Leader in the House of Representatives. The members of the subcommittee shall serve for terms of two (2) years, and the members appointed from each chamber shall elect one (1) member from their chamber to serve as co-chair. Any vacancy that may occur in the membership of the subcommittee shall be filled by the same appointing authority who made the original appointment.

(2) On an alternating basis, each co-chair shall have the first option to set the monthly meeting date. A monthly meeting may be rescheduled by agreement of both co-chairs. The co-chairs shall have joint responsibilities for subcommittee meeting agendas and presiding at subcommittee meetings. The members of the subcommittee shall be compensated for attending meetings, as provided in KRS 7.090(3).

(3) Any professional, clerical, or other employees required by the subcommittee shall be provided in accordance with the provisions of KRS 7.090(4) and (5).

(4) A majority of the entire membership of the Administrative Regulation Review Subcommittee shall constitute a quorum, and all actions of the subcommittee shall be by vote of a majority of its entire membership.^[1]

Section 13A.030: Duties of subcommittee

Text of Section 13A.030:

(1) The Administrative Regulation Review Subcommittee shall:

(a) Conduct a continuous study as to whether additional legislation or changes in legislation are needed based on various factors, including, but not limited to, review of new, emergency, and existing administrative regulations, the lack of administrative regulations, and the needs of administrative bodies;

(b) Except as provided by KRS 158.6471 and 158.6472, review and comment upon administrative regulations submitted to it by the Commission;

(c) Make recommendations for changes in statutes, new statutes, repeal of statutes affecting administrative regulations or the ability of administrative bodies to promulgate them; and

(d) Conduct such other studies relating to administrative regulations as may be assigned by the Commission.

(2) The subcommittee may make a nonbinding determination:

(a) That an effective administrative regulation or an administrative regulation filed with the Commission is deficient because it:

1. Is wrongfully promulgated;

2. Appears to be in conflict with an existing statute;

3. Appears to have no statutory authority for its promulgation;

4. Appears to impose stricter or more burdensome state requirements than required by the federal mandate, without reasonable justification;

5. Fails to use tiering when tiering is applicable;

6. Is in excess of the administrative body's authority;

7. Appears to impose an unreasonable burden on government or small business, or both;

8. Is filed as an emergency administrative regulation without adequate justification of the emergency nature of the situation as described in KRS 13A.190(1);

9. Has not been noticed in conformance with the requirements of KRS 13A.270(3);

10. Does not provide an adequate cost analysis pursuant to KRS 13A.250; or

11. Appears to be deficient in any other manner;

(b) That an administrative regulation is needed to implement an existing statute; or

(c) That an administrative regulation should be amended or repealed.

(3) The subcommittee may review an effective administrative regulation if requested by a member of the subcommittee.

(4) The subcommittee may require any administrative body to submit data and information as required by the subcommittee in the performance of its duties under this chapter, and no administrative body shall fail to provide the information or data required.^[1]

Section 13A.032

Text of Section 13A.032:

Repealed, 2003.^[1]

Section 13A.040: Administrative regulations compiler; duties

Text of Section 13A.040:

The director of the Legislative Research Commission shall appoint an administrative regulations compiler who shall:

(1) Receive administrative regulations, and other documents required to be filed by the provisions of this chapter, tendered for filing;

(2) Stamp administrative regulations tendered for filing with the time and date of receipt;

(3) Provide administrative and support services to the subcommittee;

(4) Maintain a file of administrative regulations and other documents required to be filed by this chapter, for public inspection, with suitable indexes;

(5) Maintain a file of ineffective administrative regulations;

(6) Maintain a file of material incorporated by reference, including superseded or ineffective material incorporated by reference;

(7) Prepare the Kentucky Administrative Regulations Service;

(8) Upon request, certify copies of administrative regulations and other documents that have been filed with the regulations compiler;

(9) Correct errors that do not change the substance of an administrative regulation, including but not limited to typographical errors, errors in format, and grammatical errors;

(10)

(a) Change the following items in an administrative regulation in response to a specific written request for a technical amendment submitted by the administrative body if the regulations compiler determines that the requested changes do not affect the substance of the administrative regulation:

1. The administrative body's identifying information, including address, phone number, fax number, Web site address, and e-mail address;

2. Typographical errors, errors in format, and grammatical errors;

3. Citations to statutes or other administrative regulations if a format change within that statute or administrative regulation has changed the numbering or lettering of parts; or

4. Other changes in accordance with KRS 13A.312; and

(b) Notify the administrative body within thirty (30) business days of receipt of a technical amendment letter the status of the request, including:

1. Any requested changes that are accepted as technical amendments; and

2. Any requested changes that are not accepted as technical amendments;

(11) Refuse to accept for filing administrative regulations, and other documents required to be filed by this chapter, that do not conform to the drafting, formatting, or filing requirements established by the provisions of KRS 13A.190(5) to (11), 13A.220, 13A.222(1), (2), and (3), 13A.230, and 13A.280, and notify the administrative body in writing of the reasons for refusing to accept an administrative regulation for filing;

(12) Maintain a list of all administrative regulation numbers and the corresponding last effective date, based on the information included in the history line of each administrative regulation; and

(13) Perform other duties required by the Commission or by a legislative committee^[1]

Section 13A.050: Kentucky Administrative Regulations Service; Administrative Register of Kentucky; publication dates; certificate of compiler; fees

Text of Section 13A.050:

(1) The Legislative Research Commission shall compile, publish, and distribute the administrative regulations filed by administrative bodies. This compilation shall be known as the Kentucky Administrative Regulations Service. The Legislative Research Commission shall maintain the official version of the administrative regulations in an electronic database that shall be made available to the public as provided by KRS 7.500.

(2)

(a) There is hereby created a publication known as "Administrative Register of Kentucky" or "Administrative Register" to be published on a monthly basis by the Legislative Research Commission for the purpose of giving notice of administrative regulations filed in accordance with this chapter.

(b) Every administrative regulation forwarded to the Legislative Research Commission shall have its complete text published in the Administrative Register along with the accompanying statements required by KRS 13A.190, 13A.210, 13A.2251(1), 13A.240, 13A.245, 13A.250, and 13A.270.

(c) Within five (5) workdays of the publication of an administrative regulation in the Administrative Register, an administrative body shall:

1. Review the text and accompanying statements of the administrative regulation; and

2. Notify the regulations compiler in writing or by e-mail of errors.

(3) The Administrative Register shall be published the first day of each month and shall include all administrative regulations received by the Legislative Research Commission by 12 noon, eastern time, on the fifteenth day of the preceding month. When the fifteenth day falls on a Saturday, Sunday, or holiday, the deadline is the workday that immediately precedes the Saturday, Sunday, or holiday.

(4) The compiler shall cause to be prepared a certificate to the effect that the text of the administrative regulations as published in this service is correct. One (1) copy of the Kentucky Administrative Regulations Service with the original certificate therein shall be provided to the Office of the Secretary of State.

(5) The Commission shall prescribe reasonable fees for subscription to the Kentucky Administrative Regulations Service and the Administrative Register. All fees paid to the Commission for these publications shall be placed in the State Treasury to the credit of a revolving trust or agency fund account, for use by the Legislative Research Commission in carrying out the provisions of this section.

(6) Copies of administrative regulations or other items required to be filed by this chapter shall be made available to any interested party upon request to the Legislative Research Commission. The Commission may prescribe reasonable fees for duplication services and all fees paid to the Commission for duplication services shall be placed in the State Treasury to the credit of a revolving trust or agency fund account, for use by the Legislative Research Commission in carrying out the provisions of this subsection.^[1]

Section 13A.060: Exclusive publication by Legislative Research Commission; copies available to members of General Assembly

Text of Section 13A.060:

(1) No administrative body other than the Legislative Research Commission shall publish administrative regulations unless permission is granted by the Legislative Research Commission and the administrative regulations are enclosed in a booklet or binder on which the words "informational copy" are clearly stamped or printed.

(2) Copies of the Administrative Register and the Kentucky Administrative Regulations Service shall be provided to a member of the General Assembly only upon the request of the member.^[1]

Section 13A.070: Administrative regulations promulgated by Commission; assistance to administrative bodies

Text of Section 13A.070:

(1) The Commission may promulgate administrative regulations governing the manner and form in which administrative regulations shall be prepared, to the end that all administrative regulations shall be prepared in a uniform manner.

(2) The Commission shall furnish advice and assistance to all administrative bodies in the preparation of their administrative regulations, and in revising, codifying, and editing existing or new administrative regulations.

(3) An administrative regulation promulgated by the Commission shall be signed by the President of the Senate and the Speaker of the House of Representatives.^[1]

Section 13A.075

Text of Section 13A.075:

Repealed, 2016.^[1]

Section 13A.080

Text of Section 13A.080:

Repealed, 2012.^[1]

Section 13A.090: Rebuttable presumption of correctness of content of administrative regulations; judicial notice

Text of Section 13A.090:

(1) The Commission's authenticated file stamp upon an administrative regulation or publication of an administrative regulation in the Kentucky Administrative Regulations Service or other publication shall raise a rebuttable presumption that the contents of the administrative regulation are correct.

(2) The courts shall take judicial notice of any administrative regulation duly filed under the provisions of this chapter after the administrative regulation has been adopted.^[1]

Section 13A.100: Matters which shall be prescribed by administrative regulation

Text of Section 13A.100:

Subject to limitations in applicable statutes, any administrative body that is empowered to promulgate administrative regulations shall, by administrative regulation, prescribe, consistent with applicable statutes:

(1) Each statement of general applicability, policy, procedure, memorandum, or other form of action that implements; interprets; prescribes law or policy; describes the organization, procedure, or practice requirements of any administrative body; or affects private rights or procedures available to the public;

(2) The process for application for license, benefits available or other matters for which an application would be appropriate unless such process is prescribed by a statute;

(3) Fees, except for those exempted in paragraphs (a) to (j) of this subsection, to be charged by the administrative body if such fees are authorized by law and are not set by statute:

(a) State park room rates;

(b) Prices for food in restaurants at state facilities;

(c) Prices for goods at gift shops at state facilities;

(d) Prices for groceries and other items sold at state facilities;

(e) Prices charged for state publications;

(f) Prices charged for rides and amusement activities at state facilities;

(g) Admission fees to athletic and entertainment events at state facilities;

(h) Charges for swimming, skiing, horseback riding, and similar recreational activities at state facilities;

(i) Charges for boat and equipment rentals for recreational purposes at state facilities; and

(j) Admission fees charged for seminars and educational courses by state administrative bodies;

(4) The procedures to be utilized by the administrative body in the conduct of hearings by or for the administrative body unless such procedures are prescribed by a statute; and

(5) The disciplinary procedures within the jurisdiction of the administrative body unless such procedures are prescribed by statute.^[1]

Section 13A.110: Prescription of forms and tables

Text of Section 13A.110:

Except as provided in KRS 131.131, and subject to limitations in applicable statutes, any administrative body that is empowered to promulgate administrative regulations may, consistent with applicable statutes, prescribe forms and tables for use by the administrative body and for the public in dealing with the administrative body unless the content of such form is prescribed by a statute. Forms that are required to be submitted by a regulated entity shall be included in an administrative regulation. Forms and tables that meet the requirements of KRS 13A.2245 may be incorporated by reference.^[1]

Section 13A.120: Promulgation of administrative regulations; prohibitions concerning promulgations

Text of Section 13A.120:

(1)

(a) An administrative body may promulgate administrative regulations to implement a statute only when the act of the General Assembly creating or amending the statute specifically authorizes the promulgation of administrative regulations or administrative regulations are required by federal law, in which case administrative regulations shall be no more stringent than the federal law or regulations.

(b) An administrative body that promulgates an administrative regulation required by federal law or federal regulation shall comply with the provisions of this chapter.

(2) An administrative body shall not promulgate administrative regulations:

(a) When a statute prohibits the administrative body from promulgating administrative regulations;

(b) When the administrative body is not authorized by statute to promulgate administrative regulations;

(c) When a statute prohibits the administrative body from regulation of that particular matter;

(d) When the administrative body is not authorized by statute to regulate that particular matter;

(e) When a statute prescribes the same or similar procedure for the matter regulated;

(f) When a statute sets forth a comprehensive scheme of regulation of the particular matter;

(g) On any matter that is not clearly within the jurisdiction of the administrative body;

(h) On any matter that is beyond the statutory authorization of the administrative body to promulgate administrative regulations or that is not clearly authorized by statute; and

(i) That modify or vitiate a statute or its intent.

(3) If a statute requires an administrative body or official to submit an administrative regulation to an official or administrative body for review or approval prior to filing the administrative regulation with the commission, the administrative body or official shall not file the administrative regulation without first having obtained the review or approval.

(4) Any administrative regulation in violation of this section or the spirit thereof is null, void, and unenforceable.

(5) No administrative body, other than the Court of Justice, shall issue rules.

(6) No administrative body shall issue standards or by any other name issue a document of any type where an administrative regulation is required or authorized by law.^[1]

Section 13A.125: Restrictions on filing subsequent proposed administrative regulation with same number and title

Text of Section 13A.125:

Prior to the effective date of a proposed administrative regulation, an administrative body shall not file a subsequent proposed administrative regulation with the same number or title unless:

(1) The proposed administrative regulation already filed is withdrawn in accordance with KRS 13A.310; and

(2) A subsequent proposed administrative regulation is filed in accordance with KRS 13A.220.^[1]

Section 13A.130: Matters prohibited as subject of internal policy, memorandum, or other form of action

Text of Section 13A.130:

(1) An administrative body shall not by internal policy, memorandum, or other form of action:

(a) Modify a statute or administrative regulation;

(b) Expand upon or limit a statute or administrative regulation; or

(c) Except as authorized by the Constitution of the United States, the Constitution of Kentucky, or a statute, expand or limit a right guaranteed by the Constitution of the United States, the Constitution of Kentucky, a statute, or an administrative regulation.

(2) Any administrative body memorandum, internal policy, or other form of action violative of this section or the spirit thereof is null, void, and unenforceable.

(3) This section shall not be construed to prohibit an administrative body issuing an opinion or administrative decision that is authorized by statute.^[1]

Section 13A.140

Text of Section 13A.140:

Repealed, 2016.^[1]

Section 13A.150: Specified time for filing

Text of Section 13A.150:

(1) When any section of this chapter requires that an action be taken at a specified date with regard to filing of items to the Commission and the section does not specify a time deadline, they shall be filed on or before 12 noon, eastern time, on the specified date.

(2) When any section of this chapter requires that an action be taken at a specified date and the specified date falls on a Saturday, Sunday, or holiday, the action shall be taken on or before 12 noon, eastern time, on the working day immediately preceding the Saturday, Sunday, or holiday unless the statute specifies a different deadline.

(3) When any section of this chapter requires that a meeting be held on or before a specified date and the specified date falls on a Saturday, Sunday, or holiday, the meeting shall be held on or before close of business on the working day immediately following the Saturday, Sunday, or holiday.^[1]

Section 13A.160

Text of Section 13A.160:

Repealed, 2012.^[1]

Section 13A.170: Methods of promulgating administrative regulations

Text of Section 13A.170:

Three (3) methods of promulgating administrative regulations are authorized:

(1) An ordinary administrative regulation;

(2) An emergency administrative regulation; and

(3) An administrative regulation in contemplation of a statute.^[1]

Section 13A.180: Ordinary administrative regulation defined

Text of Section 13A.180:

An ordinary administrative regulation is one that is promulgated in the normal manner by an administrative body and that does not require that it be placed in effect immediately.^[1]

Section 13A.190: Emergency administrative regulations

Text of Section 13A.190:

(1) An emergency administrative regulation is an administrative regulation that:

(a) An administrative body can clearly demonstrate, through documentary evidence submitted with the filing of the emergency administrative regulation, must be placed into effect immediately in order to:

1. Meet an imminent threat to public health, safety, welfare, or the environment;

2. Prevent an imminent loss of federal or state funds;

3. Meet an imminent deadline for the promulgation of an administrative regulation that is established by state statute or federal law; or

4. Comply with an executive order issued under KRS Chapter 39A; and

(b)

1. Is temporary in nature and will expire as provided in this section; or

2. Is temporary in nature and will be replaced by an ordinary administrative regulation as provided in this section. For the purposes of this section, "imminent" means within two hundred seventy (270) days of the filing of the emergency administrative regulation.

(2) An agency's finding of an emergency pursuant to this section shall not be based on the agency's failure to timely process and file administrative regulations through the ordinary administrative regulation process.

(3) An emergency administrative regulation:

(a) Shall become effective and shall be considered as adopted upon filing;

(b) Shall be published in the Administrative Register in accordance with the publication deadline established in KRS 13A.050(3);

(c) Shall be subject to the public comment provisions established in KRS 13A.270 and 13A.280;

(d)

1. May be reviewed at a subsequent meeting of a legislative committee after the filing of the emergency administrative regulation; and

2. May, by a vote of the majority of the legislative committee's membership as established by KRS 13A.020(4) and 13A.290(9), be found to be deficient, and the deficiency shall be reported to the Governor pursuant to KRS 13A.330(2); and

(e) May be amended:

1. By the promulgating administrative body after receiving public comments as established in KRS 13A.280. The amended after comments version shall:

a. Become effective upon filing; and

b. Not require a statement of emergency; or

2. At a legislative committee meeting as established in KRS 13A.320. The amendment shall be approved as established by KRS 13A.020(4) and KRS 13A.290(9). The amended version shall

become effective upon adjournment of the meeting following the procedures established in KRS 13A.331.

(4)

(a) Except as provided by paragraph (b) of this subsection, emergency administrative regulations shall expire two hundred seventy (270) days after the date of filing or when the same matter filed as an ordinary administrative regulation filed for review is adopted, whichever occurs first.

(b) If an administrative body extends the time for filing a statement of consideration for an ordinary administrative regulation as provided by KRS 13A.280(2)(b), an emergency administrative regulation shall remain in effect for two hundred seventy (270) days after the date of filing plus the number of days extended under the provisions of KRS 13A.280(2)(b)

or when the same matter filed as an ordinary administrative regulation filed for review is adopted, whichever occurs first.

(c) Filing an emergency amended after comments administrative regulation shall not affect the expiration of an emergency regulation as established in paragraphs (a) and (b) of this subsection.

(5) Except as established in subsection (6) of this section, an emergency administrative regulation with the same number or title or governing the same subject matter shall not be filed for a period of two hundred seventy (270) days after it has been initially filed.

(6) If an emergency administrative regulation with the same number or title or governing the same subject matter as an emergency administrative regulation filed within the previous two hundred seventy (270) days is filed, it shall contain a detailed explanation of the manner in which it differs from the previously filed emergency administrative regulation. The detailed explanation shall be included in the statement of emergency required by subsection (7) of this section.

(7) Each emergency administrative regulation shall contain a statement of:

(a) The nature of the emergency;

(b) The reasons why an ordinary administrative regulation is not sufficient;

(c) Whether or not the emergency administrative regulation will be replaced by an ordinary administrative regulation;

(d) If the emergency administrative regulation will be replaced by an ordinary administrative regulation, the following statement: "The ordinary administrative regulation (is or is not) identical to this emergency administrative regulation.";

(e) If the emergency administrative regulation will not be replaced by an ordinary administrative regulation, the reasons therefor; and

(f) If applicable, the explanation required by subsection (6) of this section.

(8)

(a) An administrative body shall attach the:

1. Statement of emergency required by subsection (7) of this section to the front of the original and each copy of a proposed emergency administrative regulation;

2. Public hearing and public comment period information required by KRS 13A.270(2), regulatory impact analysis, tiering statement, federal mandate comparison, fiscal note, summary of material incorporated by reference if applicable, and other forms or documents required by the provisions of this chapter to the back of the emergency administrative regulation; and

3. Documentary evidence submitted justifying the finding of an emergency in accordance with subsection (1) of this section to the back of the emergency regulation if it is:

a. No more than four (4) pages in length; and

b. Typewritten on white paper, size eight and one-half (8-1/2) by eleven (11) inches, and single-sided. Larger volumes of documentary evidence shall be filed in a separate

binder or on a CD-ROM or DVD disc.

(b) An administrative body shall file with the regulations compiler:

1. The original and five (5) copies of the emergency administrative regulation; and

2. At the same time as, or prior to, filing the paper version, an electronic version of the emergency administrative regulation and the attachments required by paragraph (a) of this subsection saved as a single document for each emergency administrative regulation

in an electronic format approved by the regulations compiler.

(c) The original and four (4) copies of each emergency administrative regulation shall be stapled in the top left corner. The fifth copy of each emergency administrative regulation shall not be stapled. The original and the five (5) copies of each emergency administrative regulation shall be grouped together.

(9) The statement of emergency shall have a two (2) inch top margin. The number of the emergency administrative regulation shall be typed directly below the heading "Statement of Emergency." The number of the emergency administrative regulation shall be the same number as the ordinary administrative regulation followed by an "E."

(10) Each executive department emergency administrative regulation shall be signed by the head of the administrative body and countersigned by the Governor prior to filing with the Commission. These signatures shall be on the statement of emergency attached to the front of the emergency administrative regulation.

(11) If an emergency administrative regulation will be replaced by an ordinary administrative regulation, the ordinary administrative regulation shall be filed at the same time as the emergency administrative regulation that it will replace.

(12) If an ordinary administrative regulation that was filed to replace an emergency administrative regulation is withdrawn:

(a) The emergency administrative regulation shall expire on the date the ordinary administrative regulation is withdrawn; and

(b) The administrative body shall inform the regulations compiler of the reasons for withdrawal in writing.

(13)

(a) If an emergency administrative regulation that was intended to be replaced by an ordinary administrative regulation is withdrawn, the emergency administrative regulation shall expire on the date it is withdrawn.

(b) If an emergency administrative regulation has been withdrawn, the ordinary administrative regulation that was filed with it shall not expire unless the administrative body informs the regulations compiler that the ordinary administrative regulation is also withdrawn.

(c) If an emergency administrative regulation is withdrawn, the administrative body shall inform the regulations compiler of the reasons for withdrawal in writing.

(14) The administrative regulations compiler shall notify all legislative committees of the number, title, and subject matter of all emergency administrative regulations and shall forward any additional information filed about the emergency administrative regulation requested by a legislative committee.^[1]

Section 13A.200: Administrative regulation in contemplation of a statute; procedure

Text of Section 13A.120:

An administrative regulation in contemplation of a statute provides a means whereby an administrative body may promulgate and file an administrative regulation following the enactment of a statute authorizing or directing its promulgation by the General Assembly and its approval by the Governor or its becoming law without signature but before the effective date subject to the following:

(1) The administrative regulation may be filed any time after signature by the Governor or upon the act becoming law without the Governor's signature but prior to the act's effective date;

(2) The administrative regulation may be reviewed, hearings held, and all other steps taken with regard thereto, except for adoption, prior to the effective date of the statute that authorized or directed its issuance;

(3) All dates and other procedures that apply to an ordinary administrative regulation shall apply to an administrative regulation in contemplation of a statute; and

(4) An administrative regulation in contemplation of a statute shall in all other respects be considered as an ordinary administrative regulation.^[1]

Section 13A.210: Tiering of administrative regulations

Text of Section 13A.210:

(1) When promulgating administrative regulations and reviewing existing ones, administrative bodies shall, whenever possible, tier their administrative regulations to reduce disproportionate impacts on certain classes of regulated entities, including government or small business, or both, and to avoid regulating entities that do not contribute significantly to the problem the administrative regulation was designed to address. The tiers, however, shall be based upon reasonable criteria and uniformly applied to an entire class. Administrative bodies shall use any number of tiers that will solve most efficiently and effectively the problem the administrative regulation addresses. A written statement shall be submitted to the Legislative Research Commission explaining why tiering was or was not used.

(2) Administrative bodies may use, but shall not be limited to, the following methods of tiering administrative regulations:

(a) Reduce or modify substantive regulatory requirements;

(b) Eliminate some requirements entirely;

(c) Simplify and reduce reporting and recordkeeping requirements;

(d) Provide exemptions from reporting and recordkeeping requirements;

(e) Reduce the frequency of inspections;

(f) Provide exemptions from inspections and other compliance activities;

(g) Delay compliance timetables;

(h) Reduce, modify, or waive fines or other penalties for noncompliance; and

(i) Address and alleviate special problems of individuals and small businesses in complying with an administrative regulation.

(3) When tiering regulatory requirements, administrative bodies may use, but shall not be limited to, size and nonsize variables. Size variables include number of citizens, number of employees, level of operating revenues, level of assets, and market shares. Nonsize variables include degree of risk posed to humans, technological and economic ability to comply, geographic locations, and level of federal funding.

(4) When modifying tiers, administrative bodies shall monitor, but shall not be limited to, the following variables:

(a) Changing demographic characteristics;

(b) Changes in the composition of the workforce;

(c) Changes in the inflation rate requiring revisions of dollar-denominated tiers;

(d) Changes in market concentration and segmentation;

(e) Advances in technology; and

(f) Changes in legislation.^[1]

Section 13A.215: Use of administrative regulation management application

Text of Section 13A.215:

(1) An administrative body may use an administrative regulation management application developed and maintained by the Legislative Research Commission, if available, to satisfy the following requirements of this chapter:

(a) Paper-based filing requirements; and

(b) Notifications to the regulations compiler.

(2) If the filing and notification requirements of this chapter are not available in the administrative regulation management application, the administrative body shall use the paper-based process established by this chapter.

(3) Paper-based shall include any procedure in this chapter that requires an administrative body to file or submit a hard copy to the compiler.^[1]

Section 13A.220: Compliance with KRS 13A.222 and 13A.224 required; filing with compiler; format

Text of Section 13A.220:

All administrative regulations shall comply with the provisions of KRS 13A.222 and 13A.224.

(1)

(a) An administrative body shall file with the regulations compiler:

1. The original and five (5) copies of an administrative regulation; and

2. At the same time as, or prior to, filing the paper version, an electronic version of the administrative regulation and required attachments saved as a single document for each administrative regulation in an electronic format approved by the regulations compiler.

(b) If there are differences between the paper copy and the electronic version of an administrative regulation filed with the regulations compiler, the electronic version shall be the controlling version.

(2) The original and four (4) copies of each administrative regulation shall be stapled in the top left corner. The fifth copy of each administrative regulation shall not be stapled. The original and the five (5) copies of each administrative regulation shall be grouped together.

(3) An amendment to an administrative regulation shall not be made on a copy of the administrative regulation reproduced from the Kentucky Administrative Regulations Service or the Administrative Register. It shall be a typed original in the format specified in subsection (4) of this section.

(4) The format of an administrative regulation shall be as follows:

(a) An administrative regulation shall be typewritten on white paper, size eight and one-half (8-1/2) by eleven (11) inches and shall be double-spaced through the last line of the body of the administrative regulation. The first page shall have a two (2) inch top margin. The administrative regulation shall be typed in a twelve (12) point font approved by the regulations compiler. The lines on each page shall be numbered, with each page starting with line number one (1). Pages of an administrative regulation and documents attached to the administrative regulation shall be numbered sequentially. Page numbers shall be centered in the bottom margin of each page. Copies of the administrative regulation may be mechanically reproduced;

(b) The regulations compiler shall place a stamp indicating the date and time of receipt of the administrative regulation in the two (2) inch margin on the first page;

(c) The cabinet, department, and division of the administrative body shall be listed on separate double-spaced lines two (2) inches from the top in the upper left hand corner of the first page. This shall be followed on the next doublespaced line by "(New Administrative Regulation)," "(Amendment)," "(Amended After Comments)," "(Repealer)," "(New Emergency Administrative Regulation)," "(Emergency Amendment)," or "(Emergency Repealer)," whichever is applicable;

(d) The notation shall be followed by the number and title of the administrative regulation on the next double-spaced line. The promulgating administrative body shall contact the regulations compiler prior to filing to obtain an administrative regulation number for a new administrative regulation;

(e) On the next double-spaced line following the number and title of an administrative regulation, after the words "RELATES TO:," the administrative body shall list all statutes and other enactments, including any branch budget bills or executive orders, to which the administrative regulation relates or which shall be affected by the administrative regulation. After the words "STATUTORY AUTHORITY:" the administrative body shall list the specific statutes and other enactments, where applicable, authorizing the promulgation of the administrative regulation. Federal statutes and regulations shall be cited in the "RELATES TO:" and "STATUTORY AUTHORITY:" sections as provided by KRS 13A.222(4)(n) and (o); and

(f) Following the citations provided for in paragraph (e) of this subsection, and following the words "NECESSITY, FUNCTION, AND CONFORMITY:" the administrative body shall include a brief statement setting forth the necessity for promulgating the administrative regulation, a summary of the functions intended to be implemented by the administrative regulation, and, if applicable, the statement required by KRS 13A.245(2)(b).

(5) The numbering within the body of an administrative regulation shall be the responsibility of the promulgating body, subject to the authority of the regulations compiler to divide or renumber an administrative regulation. The following format shall be used by the administrative body in the numbering of each administrative regulation. Each section shall begin with the word "Section" followed by an Arabic number, and titles of sections shall be initially capitalized. Subsections shall be designated by an Arabic number in parentheses. Paragraphs shall be designated by lower case letters of the alphabet in parentheses (e.g., (a), (b), (c), etc.). Subparagraphs shall be designated by an Arabic number followed by a period (e.g., 1., 2., etc.). Clauses shall be designated by lower case letters of the alphabet followed by a period (e.g., a., b., c., etc.). Subclauses shall be designated by lower case Roman numerals in parentheses (e.g., (i), (ii), (iii), etc.). A section shall not be divided into subsections, paragraphs, subparagraphs, clauses, or subclauses if there is only one (1) item in that level of division.

(6) After the complete text of an administrative regulation, on the following page, the administrative body shall include the following information:

(a) If the provisions of KRS 13A.120(3) are applicable, a statement that the official or the head of the administrative body has reviewed or approved the administrative regulation; the signature of such official or head; and the date on which such review or approval occurred;

(b) The authorizing signature of the administrative body promulgating the administrative regulation, and the date on which the administrative body approved the promulgation;

(c) Information relating to public hearings and the public comment period required by KRS 13A.270; and

(d) The name, position, mailing address, telephone number, e-mail address, and facsimile number of the contact person of the administrative body. The contact person shall be the person authorized by the head of an administrative body to:

1. Receive information relating to issues raised by the public or by a subcommittee prior to a public meeting of the subcommittee;

2. Negotiate changes in language with a subcommittee in order to resolve such issues; and

3. Answer questions relating to the administrative regulation.

(7) The format for signatures required by subsection (6)(a) and (b) of this section shall be as follows:

(a) The signature shall be placed on a signature line; and

(b) The name and title of the person signing shall be typed immediately beneath the signature line.

(8) An administrative body shall prominently display on its Web site:

(a) A notice that an administrative regulation has been filed with the

Commission;

(b) A summary of the administrative regulation including:

1. The number of the administrative regulation;

2. The title of the administrative regulation; and

3. Any changes made if it is an existing administrative regulation;

(c) Information on how to access the administrative regulation on the Commission's Web site; and

(d) The dates of the public comment period and the place, time, and date of the scheduled public hearing as well as the manner in which interested parties shall submit:

1. Notification of attending the public hearing; and

2. Written comments.

(9)

(a) A letter of request, notification, or withdrawal required to be filed with the regulations compiler pursuant to this chapter may be filed electronically if the letter:

1. Is on the administrative body's official letterhead; and

2. Contains the signature of a representative of that administrative body.

(b) Paragraph (a) of this subsection shall not apply to the letters required by KRS 13A.320(2)(b) for amendments at a legislative committee meeting.

^[1]

Section 13A.221: Division of subject matter of administrative regulation

Text of Section 13A.221:

(1) An administrative body shall divide the general subject matter of administrative regulations it promulgates into topics. A separate administrative regulation shall be promulgated for each topic.

(2) An administrative body shall not incorporate all material relating to a general subject matter in one (1) administrative regulation. Material incorporated by reference shall be incorporated by reference in the administrative regulation governing the specific topic to which the material relates.

(3) When an administrative regulation is promulgated, the administrative body shall review the administrative regulation, whether it is new or amended, in its entirety for compliance with the requirements of KRS Chapter 13A and current law governing the subject matter of the administrative regulation.^[1]

Section 13A.222: Drafting rules

Text of Section 13A.222:

(1) In a new administrative regulation, there shall be no underlining or bracketing.

(2) In an amendment to an administrative regulation, the new words shall precede the deleted words. The administrative body shall:

(a) Underline all new words; and

(b) Place the deleted words in brackets and strike through these words.

(3)

(a) An administrative regulation shall not be amended by reference to a section only. An amendment shall contain the full text of the existing administrative regulation being amended. All changes made to the text of the existing administrative regulation shall be marked as required by subsection (2) of this section.

(b) A section of an administrative regulation shall not be reserved for future use.

(4) In drafting administrative regulations, the administrative body shall comply with the following requirements:

(a) The administrative body shall use plain and unambiguous words that are easily understood by laymen. The administrative body shall avoid ambiguous, indefinite, or superfluous words and phrases;

(b) A duty, obligation, or prohibition shall be expressed by "shall" or "shall not." "Should," "could," or "must" shall not be used. The future tense shall not be expressed by the word "shall." A discretionary power shall be expressed by "may";

(c) The words "said," "aforesaid," "hereinabove," "hereinafter," "beforementioned," "whatsoever," or similar words of reference or emphasis shall not be used. Where an article may be used, the administrative body shall not use the word "such." It shall not use the expression "and/or" and shall not separate alternatives with a slash. It shall not use contractions. When a number of items are all mandatory, the word "and" shall be used. When all of a number of items are not mandatory, the word "or" shall be used;

(d) Certain words are defined in the Kentucky Revised Statutes. Where applicable, these definitions shall be used. Definitions appearing in the Kentucky Revised Statutes shall not be duplicated in a proposed administrative regulation. A reference shall be made to the chapters and sections of the Kentucky Revised Statutes in which the definitions appear. The format for this reference shall be: "("Defined term") is defined by KRS (specific citation).";

(e)

1. If definitions are used, they shall be placed in alphabetical order in the first section of an administrative regulation or in a separate administrative regulation.

2.

a. If definitions are placed in the first section of an administrative regulation, the definitions shall govern only the terms in that administrative regulation.

b. The section shall be titled "Definition." or "Definitions."

c. A definition shall not be included in a definitions section if the defined term is not used in that administrative regulation or the material incorporated by reference in that administrative regulation.

3.

a. If definitions are placed in a separate administrative regulation, that administrative regulation shall be the first administrative regulation of the specific chapter of the Kentucky Administrative Regulations Service to which the definitions apply.

b. The title of the administrative regulation shall contain the number of the chapter of the Kentucky Administrative Regulations Service to which the definitions apply and shall be in the format: "Definitions for (title number) KAR Chapter (chapter number)."

c. A definition shall not be included in a definitions administrative regulation if the defined term is not used in an administrative regulation in that specific chapter or the material incorporated by reference in an administrative regulation in that chapter.

4. In the text of an administrative regulation, the word defined in the definitions section, rather than the definition, shall be used.

5. Definitions shall be used only:

a. When a word is used in a sense other than its dictionary meaning, or is used in the sense of one (1) of several dictionary meanings;

b. To avoid repetition of a phrase; or

c. To limit or extend the provisions of an administrative regulation.

6. Definitions shall not establish requirements or standards;

(f) If a word has the same meaning as a phrase, the word shall be used;

(g) The present tense and the indicative mood shall be used. Conditions precedent shall be stated in the perfect tense if their happening is required to be completed;

(h) The same arrangement and form of expression shall be used throughout an administrative regulation, unless the meaning requires variations;

(i) "If" or "except" shall be used rather than "provided that" or "provided, however." "If" shall be used to express conditions, rather than the words "when" or "where";

(j) A word importing the masculine gender may extend to females. A word importing the singular number may extend to several persons or things;

(k) Any reference in an administrative regulation to "medical doctor," "M.D.," or "physician" shall be deemed to include a doctor of osteopathy or D.O., unless either of those terms is specifically excluded;

(l) An administrative body shall use the phrases specified in this subsection:

Do not use	Use
And/or	"and" for a conjunctive; "or" for a disjunctive
Any and all	either word
As provided in this administrative regulation	--
And the same hereby is	is
Either directly or indirectly	--
Except where otherwise provided	State specific exemption
Final and conclusive	final
Full force and effect	force or effect
In the event that; In case	if
Including but not limited to	State the specific items to be included.
Is authorized; Is empowered	may
Is defined and shall be construed to mean	means
Is hereby required to	shall
It shall be lawful	may
Latin words	Do not use unless medical or scientific terminology. However, "et seq." may be used for citations.
Null and void and of no effect	void
Order and direct	either word
Provision of law	law
Until such time as	until
Whenever	if

(m)

1. Unless the authority for an administrative regulation is an appropriation provision that is not codified in the Kentucky Revised Statutes, the specific chapter and section number of the Kentucky Revised Statutes authorizing the promulgation of an administrative regulation shall be cited.

2.

a. If an act has not been codified in the Kentucky Revised Statutes at the time an administrative regulation is promulgated, or if the authority is any branch budget bill, the citation shall be as follows: "(year) Ky. Acts ch. (chapter number), sec. (section number)." When an act has been codified, the administrative body shall notify the regulations compiler of the proper citation in writing. Upon receipt of the written notice, the regulations compiler shall correct the citation.

b. For acts of extraordinary sessions, the citation shall be as follows: "(year) (Extra. Sess.) Ky. Acts ch. (chapter number), sec. (section number)." If there is more than one (1) extraordinary session of the General Assembly in the year, the citation shall specify the specific extraordinary session, as follows: "(year) (2d Extra. Sess.) Ky. Acts ch. (chapter number), sec. (section number)."

3. When an act has been codified, the administrative body shall notify the regulations compiler of the proper citation of the Kentucky Revised Statutes in writing. Upon receipt of the written notice, the regulations compiler shall correct the citation.

4. If the statutory authority is an appropriation act, the citation shall be as follows: "(year) Ky. Acts ch. (chapter number), Part (part and subpart numbers)."

5. If the authority is an executive order, the citation shall be as follows: "EO (year executive order issued)-(number of executive order)";

(n) If the statutory authority is a federal statute, the citation shall be the:

1. United States Code (U.S.C.), if it has been codified; or

2. Public Law (Pub. L.) and official session laws, if it has not been codified;

(o)

1. If the statutory authority is a federal regulation codified in the Code of Federal Regulations, the citation shall include the title, part, and section number, as follows: "(title number) C.F.R. (part and section number)."

2.

a. If the statutory authority is a federal regulation that has not been codified in the Code of Federal Regulations, the citation shall be to the Federal Register, as follows: "(volume number) Fed. Reg. (page number) (effective date of the federal regulation) (section of Code of Federal Regulations in which it will be codified)."

b. When the federal regulation is codified, the citation shall be amended to read as provided by subparagraph 1. of this paragraph.

3.

a. If the statutory authority is a federal regulation that has been amended, and the amendment is not reflected in the current issue date of the volume of the Code of Federal Regulations in which the federal regulation is codified, the citation shall be to the Federal Register as follows: "(federal regulation that has been amended), (volume number) Fed. Reg. (page number) (effective date of the amendment)."

b. When the amendment is codified in the appropriate volume of theCode of Federal Regulations, the citation shall be amended to read as provided by subparagraph 1. of this paragraph;

(p) Citations of items in the "RELATES TO" paragraph of an administrative regulation shall comply with paragraphs (m), (n), and (o) of this subsection; and

(q) An administrative regulation may cite the popular name of a federal or state law if the first usage of the popular name in that administrative regulation is accompanied by the citation required by this subsection.^[1]

Section 13A.224: General requirements for incorporation by reference

Text of Section 13A.224:

No material shall be incorporated by reference unless:

(1) The material incorporated by reference relates only to the specific subject matter governed by an administrative regulation;

(2) The material has been reviewed in detail by the administrative body;

(3) No state statute or federal law prescribes the same or similar procedure, or sets forth a comprehensive scheme of regulation of the subject matter; and

(4) Its incorporation is necessary in order to:

(a) Implement, interpret, or prescribe law or policy authorized or required by statute; or

(b) Establish or describe the organization, procedure, or practice requirements authorized or required by statute.^[1]

Section 13A.2245: Incorporation of code or uniform standard by reference

Text of Section 13A.2245:

(1) An administrative body may incorporate by reference a code or uniform standard if a federal or state statute:

(a) Requires or authorizes an administrative body to implement, or a regulated entity to comply with, the provisions of that code or uniform standard; and

(b) Does not set forth the code or uniform standard, or a comprehensive scheme of regulation.

(2) If a code or uniform standard is changed by the administrative body, the administrative body shall:

(a) Clearly state the provisions in the body of the administrative regulation that are different than those included in the code or uniform standard; and

(b) File with the regulations compiler a:

1. Copy of the code or uniform standard;

2. Summary listing the pages upon which changes have been made; and

3. Detailed summary of the changes and their effect. The summaries shall be attached to the back of the proposed administrative regulation.

(3) If a federal regulation requires an administrative body to adopt, develop, or implement material of a scientific or technical nature that does not lend itself to the format requirements of KRS Chapter 13A, the administrative body may incorporate the material by reference in an administrative regulation as provided by KRS 13A.2251 and 13A.2255.^[1]

Section 13A.2251: Information required in administrative regulation when incorporating material by reference

Text of Section 13A.2251:

(1) An administrative body shall incorporate material by reference in the last section of an administrative regulation. This section shall include:

(a) The title of the material incorporated by reference placed in quotation marks, followed by the edition date of the material;

(b) Information on how the material may be obtained; and

(c) A statement that the material is available for public inspection and copying, subject to copyright law, at the main, regional, or branch offices of the administrative body, and the address and office hours of each. Following the required statement, the administrative body may include optional information that states the administrative body's Web site address or telephone number or that provides contact information for other sources that may have the material available to the public.

(2) The section incorporating material by reference shall be titled "Incorporation by Reference".

(a) If only one (1) item is incorporated by reference, the first subsection of the section incorporating material by reference shall contain the following statement: "(name and edition date of material incorporated) is incorporated by reference."

(b) If more than one (1) item is incorporated by reference, the first subsection of the section incorporating material by reference shall contain the following statement: "The following material is incorporated by reference: (a) (name and edition date of first item incorporated); and (b) (name and edition date of second item incorporated)."

(c) The second subsection of the section incorporating material by reference shall include the following statement: "This material may be inspected, copied, or obtained, subject to applicable copyright law, at (name of administrative body, full address), Monday through Friday, (state the regular office hours)."

(3) A summary of the incorporated material, in detail sufficient to identify the subject matter to which it pertains, shall be attached to an administrative regulation that incorporates material by reference. This summary shall include:

(a) Relevant programs, statutes, funds, rights, duties, and procedures affected by the material and the manner in which they are affected;

(b) A citation of the specific state or federal statutes or regulations authorizing or requiring the procedure or policy found in the material incorporated by reference; and

(c) The total number of pages incorporated by reference.

(4)

(a)

1. One (1) copy of the material incorporated by reference shall be filed with the regulations compiler when the administrative regulation is filed.

2. For material incorporated by reference that was developed by the promulgating administrative body:

a. The material incorporated by reference shall be prominently displayed on the administrative body's Web site; and

b. The Uniform Resource Locator (URL) of the address where the material may be directly viewed on the agency's Web site shall be included in the body of the administrative regulation.

3. For materials incorporated by reference that are subject to a valid copyright owned by a third party not controlled by the promulgating administrative body, the material shall be referenced by providing sufficient information to assist in locating the material from the third party.

(b) Material incorporated by reference shall be placed in a binder, attached to the back of the administrative regulation, or filed on a CD-ROM or DVD.

1. If the material is placed in a binder, the administrative body shall indicate, on the front binder cover and on the first page of the material incorporated by reference, the:

a. Number of the administrative regulation to which the material incorporated by reference pertains;

b. Date on which it is filed; and

c. Citation of each item that is included in the binder.

2. The material incorporated by reference may be attached to the back of the administrative regulation if it is:

a. No more than four (4) pages in length; and

b. Typewritten on white paper, size eight and one-half (8 1/2) by eleven (11) inches, and single-sided.

3. The material incorporated by reference may be filed on a CD-ROM or DVD disc if the material is saved in Adobe Portable Document Format (PDF). The administrative body shall indicate on the disc and the disc's storage case the:

a. Number of the administrative regulation to which the material incorporated by reference pertains;

b. Date on which it is filed; and

c. Citation of each item that is included on the disc.

(c) If the same material is incorporated by reference in more than one (1) administrative regulation, an administrative body may file one (1) copy of the material in a binder or on a CD-ROM or DVD disc. The numbers of the administrative regulations in which the material is incorporated by reference shall be indicated with the other information as required by paragraph (b) of this subsection.^[1]

Section 13A.2255: Amendment of material previously incorporated by reference

Text of Section 13A.2255:

(1) When an administrative body amends material that had been previously incorporated by reference, the amendment shall be accomplished by submission of:

(a) An amendment to the administrative regulation with a new edition date for the material incorporated by reference. The amendment shall be filed in accordance with:

1. KRS 13A.220 to initiate a change in an existing administrative regulation;

2. KRS 13A.280 to amend a proposed administrative regulation as a result of the hearing or written comments received; or

3. KRS 13A.320 to amend a proposed administrative regulation at a subcommittee meeting;

(b)

1. An entire new document in which the amendments have been made but are not reflected in the manner specified in KRS 13A.222(2).

2. If the new document has been developed by the promulgating administrative body, the entire document shall be displayed prominently on the administrative body's Web site and the Uniform Resource Locator (URL) of the address where the material may be directly viewed on the agency's Web site shall be included in the body of the administrative regulation.

3. If any materials incorporated by reference are subject to a valid copyright owned by a third party not controlled by the promulgating administrative body, the material shall be referenced by providing sufficient information to assist in locating the material from the third party;

(c) A detailed summary of the changes and their effect. This summary shall:

1.

a. Describe changes that are being made in the material incorporated by reference, in sufficient detail that a person reading the summary will know the differences between the material previously incorporated by reference and the new material; or

b. List each change in the manner required by KRS 13A.320(2)(c) and (d); and

2. Be attached to the back of the administrative regulation or, if part of an amendment pursuant to KRS 13A.320, to the amendment submitted for the subcommittee meeting; and

(d) The page or pages of any document developed by the promulgating administrative body in which changes have been made, with the changes accomplished in the manner specified in KRS 13A.222(2). Notwithstanding KRS 13A.040(6), the regulations compiler shall not be required to keep these marked copies once the administrative regulation has been adopted or withdrawn.

(2)

(a) If the changes to the material incorporated by reference are technical in nature and authorized by KRS 13A.040(10) or 13A.312, the administrative body may submit to the regulations compiler a copy of the revised material incorporated by reference and a detailed letter explaining what changes are made and the reason for the changes.

(b) If the regulations compiler determines that the requested change does not affect the substance of the material incorporated by reference and that the change is authorized by KRS 13A.040(10) or 13A.312, the edition date stated in the administrative regulation shall be changed to match the edition date on the revised material and the history line of that administrative regulation shall note that a technical amendment was made.

(c) If the requested change affects the substance of the material incorporated by reference or is not authorized by KRS 13A.040(10) or 13A.312, the administrative body shall comply with subsection (1) of this section.^[1]

Section 13A.2261: Federal statutes and regulations not to be incorporated by reference

Text of Section 13A.2261:

Federal statutes and regulations shall not be incorporated by reference. If applicable, they shall be cited in the "RELATES TO" and "STATUTORY AUTHORITY" references in a proposed administrative regulation.^[1]

Section 13A.2264

Text of Section 13A.2264:

Repealed, 2005.^[1]

Section 13A.2267

Text of Section 13A.2267:

Repealed, 2005.^[1]

Section 13A.230: Other material to be filed with and e-mailed to compiler

Text of Section 13A.230:

(1) The administrative body shall attach the following forms to the back of the original and each copy of an administrative regulation:

(a) Regulatory impact analysis as required by KRS 13A.240;

(b) Tiering statement as required by KRS 13A.210;

(c) Fiscal note as required by KRS 13A.250;

(d) Federal mandate comparison, if applicable, as required by KRS 13A.245; and

(e) The summaries provided for in KRS 13A.2245, 13A.2251, or 13A.2255, if applicable.

(2) The forms required by subsection (1) of this section shall be obtained from the regulations compiler.

(3) The electronic version of an administrative regulation and the attachments required by subsection (1) of this section shall be sent by e-mail to the regulations compiler in a single document at the same time as, or prior to, filing the paper version in accordance with KRS 13A.190, 13A.220, or 13A.280 in an electronic format approved by the regulations compiler.^[1]

Section 13A.240: Regulatory impact analysis

Text of Section 13A.240:

(1) Every administrative body shall prepare and submit to the Legislative Research Commission an original and five (5) duplicate copies of a regulatory impact analysis for every administrative regulation when it is filed with the Commission. The regulatory impact analysis shall include the following information:

(a) The number of the administrative regulation;

(b) The name, e-mail address, and telephone number of the contact person of the administrative body identified pursuant to KRS 13A.220(6)(d), and, if applicable, the name, e-mail address, and telephone number of an alternate person to be contacted with specific questions about the regulatory impact analysis;

(c) A brief narrative summary of:

1. What the administrative regulation does;

2. The necessity of the administrative regulation;

3. How the administrative regulation conforms to the content of the authorizing statutes; and

4. How the administrative regulation currently assists or will assist in the effective administration of the statutes;

(d) If this is an amendment to an existing administrative regulation, a brief narrative summary of:

1. How the amendment will change the existing administrative regulation;

2. The necessity of the amendment to the administrative regulation;

3. How the amendment conforms to the content of the authorizing statutes; and

4. How the amendment to the administrative regulation will assist in the effective administration of the statutes;

(e) The type and number of individuals, businesses, organizations, or state and local governments affected by the administrative regulation;

(f) An analysis of how the entities referenced in paragraph (e) of this subsection will be impacted by either the implementation of this administrative regulation, if new, or by the change if it is an amendment to an existing administrative regulation. The analysis shall include but not be limited to:

1. A detailed explanation of the actions the entities referenced in paragraph

(e) of this subsection will be required to undertake in order to comply with the proposed administrative regulation;

2. An estimate of the costs imposed on entities referenced in paragraph (e) of this subsection in order to comply with the proposed administrative regulation; and

3. The benefits that may accrue to the entities referenced in paragraph (e) of this subsection as a result of compliance;

(g) An estimate of how much it will cost the administrative body to implement this administrative regulation, both initially and on a continuing basis;

(h) The source of the funding to be used for the implementation and enforcement of the administrative regulation;

(i) An assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation or amendment to an existing administrative regulation;

(j) A statement as to whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees; and

(k) The tiering statement required by KRS 13A.210.

(2) The Legislative Research Commission shall review all regulatory impact analyses submitted by all administrative bodies, and may require any administrative body to submit background data upon which the information required by subsection (1) of this section is based, and an explanation of how the data was gathered.^[1]

Section 13A.245: Agencies to prepare a federal mandate analysis comparing proposed state regulatory standards to federal standards; relationship between state administrative regulation and federal law or regulation governing a subject matter

Text of Section 13A.245:

(1)

(a) When promulgating administrative regulations and amending existing administrative regulations in response to a federal mandate, an administrative body shall compare its proposed compliance standards with any minimum or uniform standards suggested or contained in the federal mandate.

(b) Such a comparison shall include, in detail, a written determination by the administrative body on whether the proposed state administrative regulation will impose stricter requirements or other responsibilities on the regulated entities than those required by the federal mandate.

(c) If the administrative body determines that the proposed state administrative regulation imposes additional requirements or responsibilities on the regulated entities than is required by the federal mandate, the administrative body shall include in its comparison analysis a written statement justifying the imposition of stricter standards, requirements, or responsibilities.

(2)

(a) Except as provided by paragraph (b) of this subsection, an administrative regulation shall conform to a federal law or regulation governing a subject matter if an administrative body is:

1. Not required by federal law or regulation to promulgate an administrative regulation to comply with a federal law or regulation governing the subject matter; and

2. Required or authorized by state law to promulgate an administrative regulation governing the subject matter.

(b) If the administrative regulation is more stringent than or otherwise differs from the federal law or regulation governing the subject matter, the administrative body shall state in detail in the "NECESSITY, FUNCTION, AND CONFORMITY" paragraph of the administrative regulation the manner in which it is more stringent than or otherwise differs from the federal law or regulation, and the reasons therefor.^[1]

Section 13A.250: Consideration of costs to local and state government; fiscal note

Text of Section 13A.250:

(1) An administrative body that promulgates an administrative regulation shall consider the cost that the administrative regulation may cause state or local government and regulated entities to incur

(2)

(a) A two (2) part cost analysis shall be completed for each administrative regulation.

(b) The first part of the cost analysis shall include the projected cost or cost savings to the Commonwealth of Kentucky and each of its affected agencies, and the projected cost or cost savings to affected local governments, including cities, counties, fire departments, and school

districts.

(c) The second part of the cost analysis shall include the projected cost or cost savings to the regulated entities affected by the administrative regulation.

(d) Agencies or entities affected by the administrative regulation may submit comments in accordance with KRS 13A.270(1) to the promulgating administrative body or to a legislative committee reviewing the administrative regulation.

(3) Each administrative body that promulgates an administrative regulation shall prepare and submit with the administrative regulation a fiscal note. The fiscal note shall state:

(a) The number of the administrative regulation;

(b) The name, e-mail address, and telephone number of the contact person of the administrative body identified pursuant to KRS 13A.220(6)(d), and, if applicable, the name, e-mail address, and telephone number of an alternate person to be contacted with specific questions about the fiscal note;

(c) Each unit, part, or division of state or local government the administrative regulation will affect;

(d) In detail, the aspect or service of state or local government to which the administrative regulation relates, including identification of the applicable state or federal statute or regulation that mandates the aspect or service or authorizes the action taken by the administrative regulation;

(e) The estimated effect of the administrative regulation on the expenditures and revenues of a state or local government agency or regulated entity for the first full year the administrative regulation will be in effect. If specific dollar estimates cannot be determined, the administrative body shall provide a brief narrative to explain the fiscal impact of the administrative

regulation; and

(f) The conclusion of the promulgating administrative body as to whether the administrative regulation will have a major economic impact, as defined in KRS 13A.010, to state and local government and regulated entities.

(4) Any administrative body may request the advice and assistance of the Commission in the preparation of the fiscal note.^[1]

Section 13A.255: Notice of ordinary administrative regulation proposing to establish or increase fees

Text of Section 13A.255:

(1) Within five (5) working days of the filing of an ordinary administrative regulation that proposes to establish or increase fees, except those fees exempted by KRS 13A.100(3), an administrative body shall mail or e-mail a notice containing the information required by subsection (2) of this section, to each state association, organization, or other body representing a person or entity affected by the administrative regulation.

(2) The notice shall include the following information:

(a) The name of the administrative body that filed the proposed administrative regulation;

(b) A statement that the administrative body has promulgated an administrative regulation that establishes or increases fees;

(c) A summary of the administrative regulation that includes:

1. The amount of each fee being established;

2. The amount of any increases to any fees previously established; and

3. The necessity for the establishment or increase in the fees;

(d) A statement that a person or entity may contact the administrative body for additional information;

(e) The time, date, and place of the scheduled public hearing;

(f) The deadline for submitting written comments as established in KRS 13A.270(1)(c); and

(g) The name, mailing address, e-mail address, and telephone number of the contact person for the administrative body identified pursuant to KRS 13A.220(6)(d).^[1]

Section 13A.260

Text of Section 13A.260:

Repealed, 1988.^[1]

Section 13A.270: Public hearing and comments; notice; communication by e-mail regarding administrative regulations; when notification of regulations compiler required

Text of Section 13A.270:

(1)

(a) In addition to the public comment period required by paragraph (c) of this subsection, following publication in the Administrative Register of the text of an administrative regulation, the administrative body shall, unless authorized to cancel the hearing pursuant to subsection (7) of this section, hold a hearing, open to the public, on the administrative regulation.

(b) The public hearing for an:

1. Ordinary administrative regulation shall not be held before the twenty-first day or after the last workday of the month following the month in which the administrative regulation is published in the Administrative Register; or

2. Emergency administrative regulation shall not be held before the twenty-first day or after the last workday of the month in which the administrative regulation is published in the Administrative Register.

Nothing in this paragraph shall preclude the administrative body from holding additional public hearings in addition to the hearing mandated in subparagraph 1. or 2. of this paragraph.

(c) The administrative body shall accept written comments regarding the administrative regulation during the comment period. The comment period shall begin on the date the administrative regulation is filed with the regulations compiler and:

1. For an ordinary administrative regulation, shall run until 11:59 p.m. on the last day of the calendar month following the month in which the administrative regulation was published in the Administrative Register; or

2. For an emergency administrative regulation, shall run until 11:59 p.m. on the last day of the calendar month in which the administrative regulation is published in the Administrative Register.

(2) Each administrative regulation shall state:

(a) The place, time, and date of the scheduled public hearing;

(b) The manner in which interested persons shall submit their:

1. Notification of attending the public hearing; and

2. Written comments;

(c) That notification of attending the public hearing shall be transmitted to the administrative body no later than five (5) workdays prior to the date of the scheduled public hearing;

(d) The deadline for submitting written comments regarding the administrative regulation in accordance with subsection (1)(c) of this section; and

(e) The name, position, mailing address, e-mail address, and telephone and facsimile numbers of the person to whom a notification and written comments shall be transmitted.

(3)

(a) A person who wishes to be notified that an administrative body has filed an administrative regulation shall:

1. Contact the administrative body by telephone or written letter to request that the administrative body send the information required by paragraph (c) or (d) of this subsection to the person; or

2. Complete an electronic registration form located on a centralized state government Web site developed and maintained by the Commonwealth Office of Technology.

(b) A registration submitted pursuant to paragraph (a) of this subsection shall:

1. Indicate whether the person wishes to receive notification regarding:

a. All administrative regulations promulgated by an administrative body; or

b. Each administrative regulation that relates to a specified subject area. The subject areas shall be provided by the administrative bodies and shall be listed on the centralized state government Web site in alphabetical order;

2. Include a request for the person to provide an e-mail address in order to receive regulatory information electronically;

3. Be valid for a period of four (4) years from the date the registration is submitted, or until the person submits a written request to be removed from the notification list, whichever occurs first; and

4. Be transmitted to the promulgating administrative body, if the registration was made through the centralized state government Web site. The collected e-mail addresses shall be used solely for the purposes of this subsection and shall not be sold, transferred, or otherwise made available to third parties, other than the promulgating administrative body.

(c) A copy of the administrative regulation as filed, and all attachments required by KRS 13A.230(1), shall be e-mailed:

1. To every person who has:

a. Registered pursuant to paragraph (a) of this subsection; and

b. Provided an e-mail address as part of the registration request;

2. Within five (5) working days after the date the administrative regulation is filed with the Commission; and

3. With a request from the administrative body that affected individuals, businesses, or other entities submit written comments that identify the anticipated effects of the proposed administrative regulation.

(d) Within five (5) working days after the date the administrative regulation is filed with the Commission, the administrative body shall mail the following information to every person who has registered pursuant to paragraph (a) of this subsection but did not provide an e-mail address:

1. A cover letter from the administrative body requesting that affected individuals, businesses, or other entities submit written comments that identify the anticipated effects of the proposed administrative regulation;

2. A copy of the regulatory impact analysis required by KRS 13A.240 completed in detail sufficient to put the individual on notice as to the specific contents of the administrative regulation, including all proposed amendments to the administrative regulation; and

3. A statement that a copy of the administrative regulation may be obtained from the Commission's Web site, which can be accessed on-line through public libraries or any computer with Internet access. The Commission's Web site address shall be included in the statement.

(e) An administrative body shall not be required to send a copy of an administrative regulation that was amended after comments in accordance with KRS 13A.280 to persons who have registered pursuant to paragraph (a) of this subsection, unless the person requested a copy pursuant to KRS 13A.280(8).

(4)

(a) If small business may be impacted by an administrative regulation, the administrative body shall e-mail a copy of the administrative regulation as filed, and all attachments required by KRS 13A.230(1), to the chief executive officer of the Commission on Small Business Advocacy within one (1) working day after the date the administrative regulation is filed with the Commission.

(b) The e-mail shall include a request from the administrative body that the Commission on Small Business Advocacy review the administrative regulation in accordance with KRS 11.202(1)(e) and submit its report or comments in accordance with the deadline established in subsection (1)(c) of this section. A copy of the report shall be filed with the regulations compiler.

(c) An administrative body shall not be required to send a copy of an administrative regulation that was amended after comments in accordance with KRS 13A.280 to the Commission on Small Business Advocacy, unless its chief executive officer requested a copy pursuant to KRS 13A.280(8).

(5)

(a) If a local government may be impacted by an administrative regulation, the administrative body shall send, by e-mail if the local government has an email address, a copy of the administrative regulation as filed and all attachments required by KRS 13A.230(1) to each local government in the state within one (1) working day after the date the administrative regulation is filed with the Commission. If the local government does not have an e-mail address, the material shall not be sent.

(b) The e-mail shall include a request from the administrative body that the local government review the administrative regulation in the same manner as would the Commission on Small Business Advocacy under KRS 11.202(1)(e), and submit its report or comments in accordance with the deadline established in subsection (1)(c) of this section. A copy of the report or comments shall be filed with the regulations compiler.

(c) An administrative body shall not be required to send a copy of an administrative regulation that was amended after comments in accordance with KRS 13A.280 to a local government, unless its contact person requested a copy pursuant to KRS 13A.280(8).

(6) Persons desiring to be heard at the hearing shall notify the administrative body in writing as to their desire to appear and testify at the hearing not less than five (5) workdays before the scheduled date of the hearing.

(7) The administrative body shall immediately notify the regulations compiler by letter if:

(a) No written notice of intent to attend the public hearing is received by the administrative body at least five (5) workdays before the scheduled hearing, and it chooses to cancel the public hearing; and

(b) No written comments have been received by the close of the last day of the public comment period.

(8)

(a)

1. Upon receipt from interested persons of their intent to attend a public hearing, the administrative body shall notify the regulations compiler by letter that the public hearing shall be held.

2. If the public hearing is held but no comments are received during the hearing, the administrative body shall notify the regulations compiler by letter that the public hearing was held and that no comments were received.

(b) Upon receipt of written comments, the administrative body shall notify the regulations compiler by letter that written comments have been received.

(9) If the notifications required by subsections (7) and (8) of this section are not received by the regulations compiler by close of business on the second workday of the calendar month, the administrative regulation shall be deferred to the next regularly scheduled meeting of the subcommittee.

(10) The notifications required by subsections (7) and (8) of this section shall be made by letter. The letter may be sent by e-mail if the administrative body uses an electronic signature and letterhead for the e-mailed document.

(11) Every hearing shall be conducted in such a manner as to guarantee each person who wishes to offer comment a fair and reasonable opportunity to do so, whether or not such person has given the notice contemplated by subsection (6) of this section. No transcript need be taken of the hearing, unless a written request for a transcript is made, in which case the person requesting the transcript shall have the responsibility of paying for same. A recording may be made in lieu of a transcript under the same terms and conditions as a transcript. This section shall not preclude an administrative body from making a transcript or making a recording if it so desires.

(12) Nothing in this section shall be construed as requiring a separate hearing on each administrative regulation. Administrative regulations may be grouped at the convenience of the administrative body for purposes of hearings required by this section.^[1]

Section 13A.280: Statement of consideration; amendment; format; information required; publication

Text of Section 13A.280:

(1) Following the last day of the comment period, the administrative body shall give consideration to all comments received at the public hearing and all written comments received during the comment period, including:

(a) Any report filed by the Commission on Small Business Innovation and Advocacy in accordance with KRS 11.202(1)(e) and 13A.270(4), or by a local government in accordance with KRS 11.202(1)(e) and 13A.270(5); and

(b) Any comments regarding the administrative regulation's major economic impact, as defined in KRS 13A.010, as submitted by agencies, local governments, or regulated entities.

(2)

(a) Except as provided in paragraph (b) of this subsection, the administrative body shall file with the commission on or before 12 noon, eastern time, on the fifteenth day of the calendar month following the month of publication the statement of consideration relating to the administrative regulation and, if applicable, the amended after comments version.

(b) If the administrative body has received a significant number of public comments:

1. It may extend the time for filing the statement of consideration for an ordinary administrative regulation and, if applicable, the amended after comments version by notifying the regulations compiler in writing on or before 12 noon, eastern time, on the fifteenth day of the calendar month following the end of the public comment period; and

2. The administrative body shall file the statement of consideration for an ordinary administrative regulation and, if applicable, the amended after comments version, with the Commission on or before 12 noon, eastern time, no later than the fifteenth day of the second calendar month following the end of the public comment period.

(3)

(a) If the administrative regulation is amended as a result of the hearing or written comments received, the administrative body shall forward the items specified in this paragraph to the regulations compiler by 12 noon, eastern time, on the applicable deadline specified in subsection (2) of this section:

1. The original and five (5) copies of the administrative regulation indicating any amendments resulting from comments received at the public hearing and during the comment period. The amendments shall be indicated in:

a. The original wording for an ordinary administrative regulation; or

b. The wording of an emergency administrative regulation as amended, for an emergency administrative regulation that was amended at a legislative committee meeting pursuant to KRS 13A.190(3);

2. The original and five (5) copies of the statement of consideration as required by subsection (2) of this section, attached to the back of the original and each copy of the administrative regulation; and

3. The regulatory impact analysis, tiering statement, federal mandate comparison, or fiscal note on local government. These documents shall reflect changes resulting from amendments made after the public hearing.

(b) The original and four (4) copies of the amended after comments version, the statement of consideration, and the attachments required by paragraph (a)3. of this subsection shall be stapled in the top left corner. The fifth copy shall not be stapled.

(c) At the same time as, or prior to, filing the paper version, the administrative body shall file an electronic version of the amended after comments version, the statement of consideration, and the required attachments saved as a single document for each amended after comments administrative regulation in an electronic format approved by the regulations compiler.

(4)

(a) If the administrative regulation is not amended as a result of the public hearing, or written comments received, the administrative body shall file the original and five (5) copies of the statement of consideration with the regulations compiler by 12 noon, eastern time, on the deadline established in subsection (2) of this section. The original and four (4) copies of the statement of consideration shall be stapled in the top left corner. The fifth copy of each statement of consideration shall not be stapled.

(b) If the statement of consideration covers multiple administrative regulations, as authorized by subsection (6)(g) of this section, the administrative body shall file with the regulations compiler:

1. The original and five (5) copies of the statement of consideration as required by paragraph (a) of this subsection; and

2. Two (2) additional unstapled copies of the statement of consideration for each additional administrative regulation included in the group of administrative regulations.

(c) At the same time as, or prior to, filing the paper version, the administrative body shall file an electronic version of the statement of consideration saved as a single document for each statement of consideration in an electronic format approved by the regulations compiler.

(5) If comments are received either at the public hearing or during the public comment period, the administrative regulation shall be deferred to the next regularly scheduled meeting of the subcommittee following the month in which the statement of consideration is due.

(6) The format for the statement of consideration shall be as follows:

(a) The statement shall be typewritten on white paper, size eight and one-half (8-1/2) by eleven (11) inches. Copies of the statement may be mechanically reproduced;

(b) The first page of the statement of consideration shall have a two (2) inch top margin;

(c) The heading of the statement shall consist of the words "STATEMENT OF CONSIDERATION RELATING TO" followed by the number of the administrative regulation that was the subject of the public hearing and comment period and the name of the promulgating administrative body. The heading shall be centered. This shall be followed by the words "Not Amended After Comments" or "Amended After Comments," whichever is applicable;

(d) If a hearing has been held or written comments received, the heading is to be followed by:

1. A statement setting out the date, time and place of the hearing, if the hearing was held;

2. A list of those persons who attended the hearing or who submitted comments and the organization, agency, or other entity represented, if applicable; and

3. The name and title of the representative of the promulgating administrative body;

(e) Following the general information, the promulgating administrative body shall summarize the comments received at the public hearing and during the comment period and the response of the promulgating administrative body. Each subject commented upon shall be summarized in a separate numbered paragraph. Each numbered paragraph shall contain two (2) subsections:

1. Subsection (a) shall be labeled "Comment," shall identify the name of the person, and the organization represented if applicable, who made the comment, and shall contain a summary of the comment; and

2. Subsection (b) shall be labeled "Response" and shall contain the response to the comment by the promulgating administrative body;

(f) Following the summary and comments, the promulgating administrative body shall:

1. Summarize the statement and the action taken by the administrative body as a result of comments received at the public hearing and during the comment period; and

2. If amended after the comment period, list the changes made to the administrative regulation in the format prescribed by KRS 13A.320(2)(c) and (d); and

(g)

1. If administrative regulations were considered as a group at a public hearing, one (1) statement of consideration may include the group of administrative regulations. If a comment relates to one (1) or more of the administrative regulations in the group, the summary of the

comment and response shall specify each administrative regulation to which it applies.

2. Emergency administrative regulations shall be in a separate statement of consideration from ordinary administrative regulations.

(7) If the administrative regulation is amended pursuant to subsection (3) of this section, the full text of the administrative regulation shall be published in the Administrative Register. The changes made to the administrative regulation shall be typed in bold and made in the format prescribed by KRS 13A.222(2). The administrative regulation shall be reviewed by the Administrative Regulation Review Subcommittee after such publication.

(8) If requested, copies of the statement of consideration and, if applicable, the amended after comments version of the administrative regulation shall be made available by the promulgating administrative body to persons attending the hearing or submitting comments or who specifically request a copy from the administrative body.^[1]

Section 13A.290: Review by Administrative Regulation Review Subcommittee; review by interim joint committee or standing committee with subject matter jurisdiction

Text of Section 13A.290:

(1)

(a) Except as provided by KRS 158.6471 and 158.6472, the Administrative Regulation Review Subcommittee shall meet monthly to review administrative regulations prior to close of business on the fifteenth day of the calendar month.

(b) The agenda shall:

1. Include each administrative regulation that completed the public comment process;

2. Include each administrative regulation for which a statement of consideration was received on or before 12 noon, eastern time, on the fifteenth day of the prior calendar month;

3. Include each effective administrative regulation that the subcommittee has decided to review;

4. Include each administrative regulation that was deferred from the prior month's meeting of the subcommittee; and

5. Not include an administrative regulation that is deferred, withdrawn, expired, or automatically taken off the agenda under the provisions of this chapter.

(c) Review of an administrative regulation shall include the entire administrative regulation and all attachments filed with the administrative regulation. The review of amendments to existing administrative regulations shall not be limited to only the changes proposed by the promulgating administrative body.

(2) The meetings shall be open to the public.

(3) Public notice of the time, date, and place of the Administrative Regulation Review Subcommittee meeting shall be given in the Administrative Register.

(4)

(a) A representative of the administrative body for an administrative regulation under consideration shall be present to explain the administrative regulation and to answer questions thereon.

(b) If a representative of the administrative body with authority to amend a filed administrative regulation is not present at the subcommittee meeting, the administrative regulation shall be deferred to the next regularly scheduled meeting of the subcommittee.

(c) If a representative of an administrative body for an effective

administrative regulation fails to appear before the subcommittee, the subcommittee may:

1. Defer the administrative regulation to the next regularly scheduled meeting of the subcommittee; or

2. Make a determination pursuant to KRS 13A.030(2), (3), and (4), or KRS 13A.190(3).

(5) Following the meeting and before the next regularly scheduled meeting of the Commission, the Administrative Regulation Review Subcommittee shall forward to the Commission its findings, recommendations, or other comments it deems appropriate in writing. The Administrative Regulation Review Subcommittee shall also forward to the Commission its findings, recommendations, or other comments it deems appropriate on an effective administrative regulation it has reviewed. The Administrative Regulation Review Subcommittee's findings shall be published in the Administrative Register.

(6)

(a) After review by the Administrative Regulation Review Subcommittee, the Commission shall, on the first Wednesday of the following month, or if the first Wednesday is a legal holiday, the next workday of the month, assign a filed administrative regulation to a legislative committee with subject matter jurisdiction.

(b) Upon notification of the assignment by the Commission, the legislative subcommittee to which the administrative regulation is assigned shall notify the regulations compiler:

1. Of the date, time, and place of the meeting at which it will consider the administrative regulation; or

2. That it will not meet to consider the administrative regulation.

(7) (a) Within ninety (90) days of the assignment, the legislative committee may hold a public meeting during which the administrative regulation shall be reviewed.

(b) If the ninetieth day of the assignment falls on a Saturday, Sunday, or holiday, the deadline for review shall be the workday following the Saturday, Sunday, or holiday.

(c)

1. If the administrative regulation is assigned to an interim joint committee and a session of the General Assembly begins during the review period, the assignment shall transfer to the Senate and House standing committees with subject matter jurisdiction.

2. If the administrative regulation is assigned to Senate and House standing committees and a session of the General Assembly adjourns sine die during the review period, the assignment shall transfer to the interim joint committee with subject matter jurisdiction.

3. An administrative regulation may be transferred more than one (1) time under this paragraph. A transfer shall not extend the review period established by this subsection.

(d) Notice of the time, date, and place of the meeting shall be placed in the

legislative calendar.

(8) Except as provided in subsection (9) of this section, a subcommittee shall be empowered to make the same nonbinding determinations and to exercise the same authority as the Administrative Regulation Review Subcommittee.

(9)

(a) This subsection shall apply to administrative regulations filed with the Commission.

(b) A majority of the entire membership of the legislative committee shall constitute a quorum for purposes of reviewing administrative regulations.

(c) In order to amend an administrative regulation pursuant to KRS 13A.320 or to find an administrative regulation deficient pursuant to KRS 13A.030(2) and (3), the motion to amend or find deficient shall be approved by a majority of the entire membership of the subcommittee. Additionally, during a session of the General Assembly, standing committees of the Senate and House of Representatives shall agree in order to amend an administrative regulation or to find an administrative regulation deficient pursuant to KRS 13A.030(2) and (3) by:

1. Meeting separately; or

2. Meeting jointly. If the standing committees meet jointly, it shall require a majority vote of Senate members voting and a majority of House members voting, as well as the majority vote of the entire membership of the standing committees meeting jointly, in order to take action on the administrative regulation.

(10)

(a) The quorum requirements of subsection (9)(b) of this section shall apply to an effective administrative regulation under review by a legislative committee.

(b) A motion to find an effective administrative regulation deficient shall be approved by:

1. A majority of the entire membership of the Administrative Regulation Review Subcommittee; or

2. A legislative committee in accordance with subsection (9)(c) of this section.

(11)

(a) Upon adjournment of the meeting at which a legislative subcommittee has considered an administrative regulation pursuant to subsection (7) of this section, the subcommittee shall inform the regulations compiler of its findings, recommendations, or other action taken on the administrative regulation.

(b) Following the meeting and before the next regularly scheduled meeting of the Commission, the subcommittee shall forward to the Commission its findings, recommendations, or other comments it deems appropriate in writing. The subcommittee's findings shall be published in the Administrative Register.^[1]

Section 13A.300: Request by promulgating administrative body or a subcommittee to defer consideration of administrative regulation; consideration of deferred administrative regulation; limitation on number of deferrals; deferral of administrative regulation referred to second committee

Text of Section 13A.300:

(1) The administrative body that promulgated an administrative regulation may request that consideration of the administrative regulation be deferred by a legislative committee.

(2) The deferral of an administrative regulation scheduled for review by the Administrative Regulation Review Subcommittee shall be governed by KRS 13A.020(4) and the following:

(a) A request for deferral of an ordinary administrative regulation filed with the Commission shall be automatically granted if:

1. The administrative body submits a written letter to the regulations compiler; and

2. The letter is received prior to the subcommittee meeting;

(b) A request for deferral of an effective administrative regulation or an emergency administrative regulation may be granted if:

1. The administrative body submits a written letter to the regulations compiler;

2. The letter is received prior to the subcommittee meeting; and

3. Approved by the co-chairs of the Administrative Regulation Review Subcommittee;

(c) A request for deferral may be granted at the discretion of the subcommittee if the request is made by the administrative body orally at a meeting of the subcommittee;

(d) The subcommittee may request that consideration of an administrative regulation be deferred by the promulgating administrative body. Upon receipt of the request, the promulgating administrative body may agree to defer consideration of the administrative regulation;

(e) Except as provided in paragraph (f) of this subsection, an administrative regulation that has been deferred shall be placed on the agenda of the next scheduled meeting of the subcommittee. If it is an administrative regulation filed with the Commission, the subcommittee shall consider the administrative regulation as if it had met all other requirements of filing.

Repromulgation shall not be required in those cases; and

(f) An administrative regulation shall not be deferred under this subsection more than twelve (12) times.

(3)

(a) The deferral of a filed ordinary administrative regulation referred to a second legislative committee or committees pursuant to KRS 13A.290(6) and (7) shall be governed by this subsection and the voting requirements of KRS 13A.290(9).

(b)

1. A request for deferral shall be automatically granted if:

a. The administrative body submits a written letter to the regulations compiler; and

b. The letter is received prior to the legislative committee meeting;

2. A request for deferral may be granted at the discretion of the second legislative committee if the request is made by the administrative body orally at a meeting of the legislative committee; and

3. The legislative committee may request that consideration of an administrative regulation be deferred by the promulgating administrative body. Upon receipt of the request, the promulgating administrative body may agree to defer consideration of the administrative regulation.

(c)

1. An administrative regulation that is deferred may be placed on a subsequent agenda of the legislative committee or committees within the review period.

2. If a filed ordinary administrative regulation that has been deferred is not placed on a subsequent agenda within the review period, the administrative regulation shall take effect at the expiration of the review period.

(4)

(a) The deferral of an effective administrative regulation or an emergency administrative regulation under review by a legislative committee shall be governed by this subsection and the voting requirements of KRS 13A.290(9).

(b) A request for deferral may be granted if:

1. The administrative body submits a written letter to the regulations compiler;

2. The letter is received prior to the legislative committee meeting; and

3. Approved by the presiding chair or chairs.

(c) A request for deferral may be granted at the discretion of the legislative committee if the request is made by the administrative body orally at a meeting of the legislative committee.

(d) The legislative committee may request that consideration of an administrative regulation be deferred by the administrative body. Upon receipt of the request, the administrative body may agree to defer consideration of the administrative regulation.

(e) An administrative regulation that is deferred may be placed on a subsequent agenda of the legislative committee.

(5) Except as provided by KRS 13A.290(4), if a representative of an administrative body whose administrative regulation is scheduled for review fails to appear before a legislative committee, the legislative committee in conformance with KRS 13A.290(9) may:

(a) Defer the administrative regulation to the next regularly scheduled meeting of the legislative committee; or

(b) Make a determination pursuant to KRS 13A.030(2) or 13A.190(3).^[1]

Section 13A.310: Repeal or permissive withdrawal of administrative regulation

Text of Section 13A.310:

(1) Except as provided in KRS 13A.3102 and 13A.3104, an administrative regulation, once adopted, cannot be withdrawn but shall be repealed if it is desired that it no longer be effective.

(2) Except as provided in KRS 13A.3102 and 13A.3104, an administrative regulation, once adopted, cannot be suspended but shall be repealed if it is desired to suspend its effect.

(3)

(a) An administrative regulation shall be repealed only by the promulgation of an administrative regulation that:

1. Is titled "Repeal of (state number of administrative regulation to be repealed)";

2. Contains the reasons for repeal in the "NECESSITY, FUNCTION, AND CONFORMITY" paragraph;

3. Includes in the body of the administrative regulation, a citation to the number and title of the administrative regulation or regulations being repealed; and

4. Meets the filing and formatting requirements of KRS 13A.220.

(b)

1. Except as provided in subparagraph 2. of this paragraph, on the effective date of an administrative regulation that repeals an administrative regulation, determined in accordance with KRS 13A.330 or 13A.331, the regulations compiler shall delete the repealed administrative regulation and the repealing administrative regulation from the Kentucky Administrative Regulations Service.

2. If the repealing administrative regulation specifies an effective date that is after the administrative regulation would become effective pursuant to KRS 13A.330 or 13A.331, the specified effective date shall be considered the effective date of the repealing administrative regulation. On the specified effective date, the regulations compiler shall delete the repealed administrative regulation and the repealing administrative regulation from the Kentucky Administrative Regulations Service.

(c) An administrative body may repeal more than one (1) administrative regulation in an administrative regulation promulgated pursuant to paragraph (a) of this subsection if the administrative regulations being repealed are contained in the same chapter of the Kentucky Administrative Regulations Service.

(4)

(a) An ordinary administrative regulation may be withdrawn by the promulgating administrative body at any time prior to its adoption.

(b) An ordinary administrative regulation that has been found deficient may be withdrawn by the promulgating administrative body or by the Governor at any time prior to its adoption

(c) Once an ordinary administrative regulation is withdrawn, it shall not be reinstated, except by repromulgation as a totally new matter.

(5)

(a) An emergency administrative regulation may be withdrawn by the promulgating administrative body at any time prior to its expiration.

(b) An emergency administrative regulation that has been found deficient may be withdrawn by the promulgating administrative body or by the Governor at any time prior to its expiration.

(6) If an administrative regulation is withdrawn, the administrative body or the Governor shall inform the regulations compiler of the reasons for withdrawal in writing.^[1]

Section 13A.3102: Expiration of administrative regulations

Text of Section 13A.3102:

(1) An ordinary administrative regulation with a last effective date on or after July 1, 2012, shall expire seven (7) years after its last effective date, except as provided by the certification process in KRS 13A.3104.

(2) An ordinary administrative regulation with a last effective date before July 1, 2012, shall expire on July 1, 2019, except as provided by the certification process in KRS 13A.3104.

(3) For all administrative regulations that expire under this section or KRS 13A.3104, the regulations compiler shall:

(a) Delete them from the Kentucky Administrative Regulations Service;

(b) Add them to the list of ineffective administrative regulations; and

(c) Beginning on January 1, 2020, and at least once every six (6) months thereafter, publish a list of administrative regulations that have expired since the most recent previous list was published under this paragraph.

(4) Within three (3) months of June 27, 2019, and at least once every six (6) months thereafter, the regulations compiler shall publish a list of existing administrative regulations and their corresponding last effective dates.^[1]

Section 13A.3104: Certification process for avoiding expiration of administrative regulations

Text of Section 13A.3104:

(1) If an administrative body does not want an administrative regulation to expire under KRS 13A.3102, the administrative body shall, in the twelve (12) months prior to the expiration date:

(a) Review the administrative regulation in its entirety for compliance with current law governing the subject matter of the administrative regulation;

(b) File a certification letter with the regulations compiler stating whether the administrative regulation:

1. Shall be amended because it is not in compliance with current governing law or otherwise needs amendment;

2. Shall remain in effect without amendment because it is in compliance with current governing law; or

3. Is in need of amendment and a proposed amendment has already been filed; and

(c) Not be required to consider KRS Chapter 13A drafting and formatting requirements as part of its review.

(2) The certification letter shall be on the administrative body's official letterhead, in the format prescribed by the regulations compiler, and include the following information:

(a) The name of the administrative body;

(b) The number of the administrative regulation;

(c) The title of the administrative regulation;

(d) The statement required by subsection (1)(b) of this section;

(e) A brief statement in support of the decision; and

(f) The authorizing signature of the administrative body.

(3)

(a) If the certification letter was filed pursuant to subsection (1)(b) of this section, stating that the administrative regulation shall be amended, the administrative body shall file an amendment to the administrative regulation in accordance with KRS Chapter 13A within eighteen (18) months of the date the certification letter was filed.

(b) If the amendment was filed in accordance with paragraph (a) of this subsection:

1. The administrative regulation shall not expire if it is continuing through the administrative regulations process; or

2. The administrative regulation shall expire on the date the amendment is withdrawn or otherwise ceases going through the administrative regulations process.

(c) Once the amendment is effective, the regulations compiler shall update the last effective date for that administrative regulation to reflect the amendment's effective date.

(d) If the amendment was not filed in accordance with paragraph (a) of this subsection, the administrative regulation shall expire at the end of the eighteen (18) month period.

(4) If the certification letter was filed pursuant to subsection (1)(b) of this section, stating that the administrative regulation shall remain in effect without amendment, the regulations compiler shall:

(a) Update the administrative regulation's history line to state that a certification letter was received; and

(b) Change the last effective date of the administrative regulation to the date the certification letter was received.

(5)

(a) If the certification letter was filed pursuant to subsection (1)(b)3. of this section, stating that a proposed amendment has already been filed:

1. The administrative regulation shall not expire if the amendment is continuing through the administrative regulations process; or

2. The administrative regulation shall expire on the date the amendment is withdrawn or otherwise ceases going through the administrative regulations process.

(b) Once the amendment is effective, the regulations compiler shall update the last effective date for that administrative regulation to reflect the amendment's effective date.

(6) If filed by the deadline established in KRS 13A.050(3), the regulations compiler shall publish in the Administrative Register of Kentucky each certification letter received:

(a) In summary format; or

(b) In its entirety.^[1]

Section 13A.312: Actions required when authority over a subject matter is transferred to another administrative body or name of administrative body is changed

Text of Section 13A.312:

(1) If authority over a subject matter is transferred to another administrative body or if the name of an administrative body is changed by statute or by executive order during the interim between regular sessions of the General Assembly, the administrative regulations of that administrative body in effect on the effective date of the statutory change or the executive order shall remain in effect as they exist until the administrative body that has been granted authority over the subject matter amends or repeals the administrative regulations pursuant to KRS Chapter 13A.

(2) After receipt of a written request, submitted pursuant to subsection (3) of this section, to make changes to an administrative regulation pursuant to the statutory change or executive order, the regulations compiler shall alter the administrative regulations referenced in subsection (1) of this section to:

(a) Change the name of the administrative body pursuant to the provisions of the statute or executive order; and

(b) Make any other technical changes necessary to carry out the provisions of the statute or executive order.

(3) The administrative body that has been granted statutory authority over the subject matter shall provide to the regulations compiler in writing:

(a) A listing of the administrative regulations that require any changes; and

(b) The specific names, terms, or other information to be changed with those changes properly referenced.

(4) The administrative body that has been granted statutory authority over the subject matter shall submit new forms to replace forms previously incorporated by reference in an administrative regulation if the only changes on the form are the name and mailing address of the administrative body. If there are additional changes to a form incorporated by reference, the administrative body shall promulgate an amendment to the existing administrative regulation and make the changes to the material incorporated by reference in accordance with KRS 13A.2255.

(5) If an administrative body is abolished by statute or executive order and the authority over its subject matter is not transferred to another administrative body, the Governor, or the secretary of the cabinet to which the administrative body was attached, shall promulgate an administrative regulation to repeal the existing administrative regulations that were promulgated by the abolished administrative body. The repeal shall be accomplished as provided by KRS 13A.310.^[1]

Section 13A.315: Mandatory withdrawal of administrative regulation prior to review by legislative subcommittee; effect of noncompliance with chapter; withdrawal of deficient administrative regulation upon governor's determination

Text of Section 13A.315:

(1) An administrative regulation shall expire and shall not be reviewed by a legislative subcommittee if:

(a) It has not been reviewed or approved by the official or administrative body with authority to review or approve;

(b) The statement of consideration and, if applicable, the amended after comments version are not filed on or before a deadline specified by this chapter;

(c) The administrative body has failed to comply with the provisions of this chapter governing the filing of administrative regulations, the public hearing and public comment period, or the statement of consideration; or

(d) The administrative regulation is deferred pursuant to KRS 13A.300(2) more than twelve (12) times.

(2)

(a) An administrative regulation that has been found deficient by a subcommittee shall be withdrawn immediately if, pursuant to KRS 13A.330, the Governor has determined that it shall be withdrawn.

(b) The Governor shall notify the regulations compiler in writing and by telephone that he or she has determined that the administrative regulation found deficient shall be withdrawn.

(c) The written withdrawal of an administrative regulation governed by the provisions of this subsection shall be made in a letter to the regulations compiler in the following format: "Pursuant to KRS 13A.330 I have determined that (administrative regulation number and title) shall be (withdrawn, or withdrawn and amended to conform to the finding of deficiency, as applicable). The administrative regulation, (administrative regulation number and title), is hereby withdrawn."

(d) An administrative regulation governed by the provisions of this subsection shall be considered withdrawn upon receipt by the regulations compiler of the written withdrawal.^[1]

Section 13A.320: Amendment of administrative regulation during meeting of subcommittee or public meeting; format

Text of Section 13A.320:

(1)

(a) An administrative body may amend an administrative regulation at a subcommittee meeting with the consent of the subcommittee. A subcommittee may amend an administrative regulation at a subcommittee meeting with the consent of the administrative body.

(b) An administrative regulation shall not be amended at a public meeting of a subcommittee unless the amendment concerns an issue that was related to the administrative regulation filed with the Legislative Research Commission and was:

1. Considered at the public hearing;

2. Raised pursuant to a comment received by the administrative body at the public hearing or during the public comment period pursuant to KRS 13A.280(1); or

3. Raised during the subcommittee meeting.

(c) Nothing in this chapter shall be construed to require the administrative regulation's resubmission or refiling or other action. The administrative regulation may be adopted as amended.

(d) Following approval of an amendment to an administrative regulation at a subcommittee meeting, the administrative regulation as amended shall be published in the Administrative Register, unless all amendments to the administrative regulation that were made at the meeting of the subcommittee:

1. Relate only to the formatting and drafting requirements of KRS 13A.220(5) and 13A.222(4)(b), (c), (i), (j), and (l); and

2. Do not alter the intent, meaning, conditions, standards, or other requirements of the administrative regulation.

(e) If the amendments to an administrative regulation made at a meeting of a subcommittee meet the exception requirements of paragraph (d) of this subsection, the regulations compiler shall publish a notice in the Administrative Register that the administrative regulation was amended at a subcommittee meeting only to comply with the formatting and drafting requirements of this chapter.

(2) When an administrative body intends to amend an administrative regulation at a meeting of the subcommittee, the following requirements shall be met:

(a) Amendments offered by the administrative body prior to a subcommittee meeting shall be approved by the head of the administrative body.

(b) Amendments shall be contained in a letter to the subcommittee. The letter shall:

1. Identify the administrative body;

2. State the number and title of the administrative regulation;

3. Be dated;

4. Be filed with the regulations compiler at least three (3) workdays prior to the meeting of the subcommittee if the amendments are initiated by the administrative body; and

5. Comply with the format requirements in paragraphs (c) and (d) of this subsection if the amendments are initiated by the administrative body.

(c) On separate lines, the amendment shall be identified by the number of the:

1. Page;

2. Section, subsection, paragraph, subparagraph, clause, or subclause, as appropriate; and

3. Line.

(d)

1. If a word or phrase, whether or not underlined, is to be deleted, the amendment shall identify the word or phrase to be deleted and state that it is to be deleted. If a word or phrase is to be replaced by another word or phrase, the amendment shall specify the word or phrase that is to be deleted and shall specify the word or phrase that is to be inserted in lieu thereof.

2. If new language is to be inserted, the amendment shall state that it is to be inserted, and the new language shall be underlined.

3. If the amendment consists of no more than four (4) words, the words shall be placed between quotation marks. If the amendment consists of more than four (4) words, the amendment shall be indented and not placed between quotation marks.

4. If a section, subsection, paragraph, subparagraph, clause, or subclause is to be deleted in its entirety, the amendment shall identify it and state that it is deleted in its entirety, whether or not it contains underlined or bracketed language.

(3) If an amendment is drafted by subcommittee staff on behalf of a subcommittee, the amendment shall be made:

(a) In the format required by subsection (2)(c) and (d) of this section; or

(b) By substituting the complete text of the administrative regulation, with the proposed changes made to the administrative regulation typed in bold, italicized, and in the format prescribed by KRS 13A.222(2).

(4) An amendment to an administrative regulation may be made orally at a subcommittee meeting if the requirements of subsection (1)(a) of this section are met.

(5) Except for an amendment made orally pursuant to subsection (4) of this section:

(a) For a meeting of the Administrative Regulation Review Subcommittee, an administrative body shall submit twenty (20) copies of an amendment to an administrative regulation to the regulations compiler prior to the Administrative Regulation Review Subcommittee meeting at which the amendment will be considered and, if applicable, in accordance with the deadline established in subsection (2)(b)4. of this section; or

(b) For a meeting of a subcommittee other than the Administrative Regulation Review Subcommittee, an administrative body shall contact the regulations compiler prior to the subcommittee meeting at which the amendment will be considered to find out the number of copies needed for that specific subcommittee. The original amendment and the specified number of copies shall be submitted to the regulations compiler prior to the subcommittee meeting at which the amendment will be considered and, if applicable, in accordance with the deadline established in subsection (2)(b)4. of this section.^[1]

Section 13A.330: Notification of finding of deficiency -- Governor's determination after finding of deficiency.

Text of Section 13A.330:

(1)

(a) If a filed ordinary administrative regulation has been found deficient, the legislative committee shall transmit to the Governor and the regulations compiler:

1. A copy of the finding of deficiency and other relevant findings, recommendations, or comments; and

2. A request that the Governor determine whether the administrative regulation shall:

a. Be withdrawn;

b. Be amended at a legislative committee meeting pursuant to KRS 13A.320 to conform to the finding of deficiency; or

c. Become effective pursuant to the provisions of this section notwithstanding the finding of deficiency.

(b) The Governor shall transmit his or her determination to the Commission and the regulations compiler.

(c) A filed ordinary administrative regulation that has been found deficient shall be considered as adopted and become effective after:

1.

a. The review period established in this chapter has been completed; and

b. The regulations compiler has received the Governor's determination that the administrative regulation shall become effective pursuant to the provisions of this section notwithstanding the finding of deficiency; or

2. The legislative committee that found the filed administrative regulation deficient subsequently determines that it is not deficient in accordance with KRS 13A.335, provided that this determination was made prior to receipt by the regulations compiler of the Governor's determination.

(2)

(a) If an emergency administrative regulation has been found deficient, the legislative committee finding it deficient shall transmit to the Governor and the regulations compiler:

1. A copy of the finding of deficiency and other relevant findings, recommendations, or comments; and

2. A request that the Governor determine whether the emergency administrative regulation shall:

a. Be withdrawn;

b. Be amended at a legislative committee meeting pursuant to KRS 13A.320 to conform to the finding of deficiency; or

c. Remain effective as established in KRS 13A.190(4) notwithstanding the finding of deficiency.

(b) The Governor shall transmit his or her determination to the Commission and the regulations compiler.

(c) The legislative committee that found the emergency administrative regulation deficient may subsequently determine that it is not deficient in accordance with KRS 13A.335.

(3) If an effective ordinary administrative regulation has been found deficient by a legislative committee, the legislative committee shall transmit to the Governor a copy of its finding of deficiency and other findings, recommendations, or comments it deems appropriate.^[1]

Section 13A.331: Adoption and effective date of ordinary administrative regulation that has been referred to a legislative committee

Text of Section 13A.331:

A filed ordinary administrative regulation that has not been deferred or found deficient and has been referred by the Commission to a legislative committee shall be considered as adopted and shall become effective:

(1) Upon adjournment of a meeting of a legislative committee other than the subcommittee if:

(a) The administrative regulation was on the meeting agenda; and

(b) A quorum was present;

(2) Upon adjournment of a meeting of a House or Senate standing committee if:

(a) The administrative regulation was on its meeting agenda;

(b) A quorum was present; and

(c) The administrative regulation has previously been on a meeting agenda of the other standing committee when a quorum was present; or

(3) At the expiration of the review period established in KRS 13A.290(7), if within the review period a legislative committee has failed to meet or failed to place a filed administrative regulation on a meeting agenda.^[1]

Section 13A.333

Text of Section 13A.333:

Repealed, 2003.^[1]

Section 13A.335: Reasons regulation found deficient shall not be considered deficient

Text of Section 13A.335:

(1)

(a) A filed administrative regulation found deficient by a legislative committee shall not be considered deficient if:

1. A subsequent amendment of that administrative regulation is filed with the Commission by the administrative body;

2. The legislative committee that found the administrative regulation deficient approves a motion that the subsequent amendment corrects the deficiency; and

3. Any legislative committee that reviews the administrative regulation under the provisions of KRS Chapter 13A finds that the administrative regulation is not deficient.

(b) A filed administrative regulation found deficient by the Administrative Regulation Review Subcommittee shall not be considered deficient if:

1. The administrative regulation is amended to correct the deficiency at a meeting of the legislative committee to which it was assigned by the Commission;

2. That legislative committee does not determine that the administrative regulation is deficient for any other reason; and

3. The Administrative Regulation Review Subcommittee approves a motion that the deficiency has been corrected and that the administrative regulation should not be considered deficient.

(c) A filed administrative regulation found deficient by a legislative committee with subject matter jurisdiction shall not be considered deficient if the legislative committee:

1. Reconsiders the administrative regulation and its finding of deficiency; and

2. Approves a motion that the administrative regulation is not deficient.

(d) If an amendment to an effective administrative regulation is going through the KRS Chapter 13A promulgation process and is found deficient by a legislative committee, the administrative regulation shall not be considered deficient if the:

1. Administrative regulation was found deficient due to the amendment;

2. Promulgating administrative body has withdrawn the proposed amendment of the existing administrative regulation; and

3. Regulations compiler has not received the Governor's determination pursuant to KRS 13A.330.

(2) If an effective administrative regulation is found deficient by a legislative committee, the administrative regulation shall not be considered deficient if the legislative committee:

(a) Reconsiders the administrative regulation and its finding of deficiency; and

(b) Approves a motion that the administrative regulation is not deficient.

(3)

(a) If an administrative regulation has been found deficient by a legislative committee, the regulations compiler shall add the following notice to the administrative regulation: "This administrative regulation was found deficient by the [name of legislative committee] on [date]." This notice shall be the last section of the administrative regulation.

(b) If an administrative regulation has been found deficient by a legislative committee, subsequent amendments of that administrative regulation filed with the Commission shall contain the notice provided in paragraph (a) of this subsection.

(c) If an administrative regulation that has been found deficient by a legislative committee has subsequently been determined not to be deficient under the provisions of this section, the regulations compiler shall delete the notice required by paragraph (a) of this subsection.

^[1]

Section 13A.337: Legislative finding; certain administrative regulations void; prohibition against promulgating substantially similar regulations; judicial review

Text of Section 13A.337:

(1) The General Assembly finds that certain administrative regulations, as evidenced by the records of the Legislative Research Commission, including but not limited to the Kentucky Administrative Regulations Service and the Administrative Register of Kentucky, were found deficient on or after July 15, 1988, and either expired prior to or upon adjournment of the 2001 General Assembly, or were scheduled to expire upon adjournment of the 2002 Regular Session of the General Assembly, under the provisions of KRS Chapter 13A as existing before the issuance of the Opinion and Order of the Franklin Circuit Court in Patton v. Sherman et al., Civil Action No. 01- CI-00660, entered January 11, 2002.

(2) Contrary provisions of any section of the Kentucky Revised Statutes notwithstanding, the administrative regulations identified in subsection (1) of this section shall be null, void, and unenforceable, as follows:

(a) Those administrative regulations identified in subsection (1) of this section which expired prior to or upon adjournment of the 2001 Regular Session of the General Assembly under the provisions of KRS Chapter 13A existing before the issuance of the court order referenced in subsection (1) of this section shall be null, void, and unenforceable as of their recorded date of expiration, according to the records of the Legislative Research Commission. Administrative bodies and regulated persons and entities have relied on the assumption that these administrative regulations have previously expired; therefore, this subsection shall have the retroactive effect necessary to implement its provisions; and

(b) Those administrative regulations identified in subsection (1) of this section due to expire upon adjournment of the 2002 Regular Session of the General Assembly, under the provisions of KRS Chapter 13A existing before the issuance of the court order referenced in subsection (1) of this section, shall be null, void, and unenforceable on March 27, 2002.

(3) Contrary provisions of any section of the Kentucky Revised Statutes notwithstanding, an administrative body shall be prohibited from promulgating an administrative regulation that is identical to or substantially the same as any administrative regulation identified in subsection (1) of this section for a period beginning on January 11, 2002, and concluding upon adjournment of the 2003 Regular Session of the General Assembly. This subsection shall have the retroactive effect necessary to implement its provisions.

(4) The Legislative Research Commission may file an action in the Franklin Circuit Court for judicial review to determine if any administrative regulation is lawfully promulgated in accordance with the laws and Constitution of the Commonwealth of Kentucky.^[1]

Section 13A.338: Legislative finding; certain administrative regulations void; prohibition against promulgating substantially similar regulations within specified time

Text of Section 13A.338:

(1) The General Assembly finds that certain administrative regulations as evidenced by the records of the Legislative Research Commission, including but not limited to the Kentucky Administrative Regulations Service and the Administrative Register of Kentucky, were found deficient but became effective notwithstanding the finding of deficiency, pursuant to KRS 13A.330(5)(a)2. or 13A.331(5)(a)2., on or after March 27, 2002, and before March 16, 2004.

(2) Contrary provisions of any section of the Kentucky Revised Statutes notwithstanding, each administrative regulation referenced in subsection (1) of this section shall be null, void, and unenforceable as of March 16, 2004.

(3) Contrary provisions of any section of the Kentucky Revised Statutes notwithstanding, the administrative body shall be prohibited from promulgating an administrative regulation that is identical to, or substantially the same as, any of the administrative regulations referenced in subsection (1) of this section for a period beginning on March 16, 2004, and concluding on June 1, 2005.

(4) A list of the administrative regulations referenced in subsection (1) of this section shall be available to the public, in the office of the Legislative Research Commission's regulations compiler.^[1]

Section 13A.340

Text of Section 13A.340:

Repealed, 1990.^[1]

Section 13A.345

Text of Section 13A.345:

Repealed, 1988.^[1]

Section 13A.346

Text of Section 13A.346:

Repealed, 1994.^[1]

Section 13A.347

Text of Section 13A.347:

Repealed, 1994.^[1]

Section 13A.350: Application of chapter

Text of Section 13A.350:

(1) The provisions of this chapter shall apply to all grants of authority to promulgate administrative regulations and no administrative regulation shall be promulgated or adopted unless in conformity with the provisions of this chapter.

(2) The provisions of this chapter shall apply to all other acts passed by the 1984 Session of the General Assembly.

(3) Any grant of authority for an administrative body to promulgate rules or standards is repealed, unless authorized by this chapter.

(4) Any grant of authority for an administrative body to promulgate administrative regulations which is in conflict with the provisions of this chapter shall be repealed to the extent that it conflicts with the provisions of this chapter, regardless of whether the grant of authority is broader than that contained in this chapter.

(5) Any existing statute and any act passed by the 1984 Session of the General Assembly which is in conflict with the provisions of this chapter is repealed to the extent of the conflict.^[1]

Chapter 13B: Administrative hearings

Section 13B.005: Short title for KRS 13B.005 to 13B.170

Text of Section 13B.005

KRS 13B.005 to 13B.170 shall be named the Albert Jones Act of 1994.^[1]

Section 13B.010: Definitions for chapter

Text of Section 13B.010 As used in this chapter, unless the context requires otherwise:

(1) "Administrative agency" or "agency" means each state board, bureau, cabinet, commission, department, authority, officer, or other entity in the executive branch of state government authorized by law to conduct administrative hearings.

(2) "Administrative hearing" or "hearing" means any type of formal adjudicatory proceeding conducted by an agency as required or permitted by statute or regulation to adjudicate the legal rights, duties, privileges, or immunities of a named person.

(3) "Party" means:

(a) The named person whose legal rights, duties, privileges, or immunities are being adjudicated in the administrative hearing;

(b) Any other person who is duly granted intervention in an administrative hearing; and

(c) Any agency named as a party to the adjudicatory proceeding or entitled or permitted by the law being enforced to participate fully in the administrative hearing.

(4) "Agency head" means the individual or collegial body in an agency that is responsible for entry of a final order.

(5) "Recommended order" means the whole or part of a preliminary hearing report to an agency head for the disposition of an administrative hearing.

(6) "Final order" means the whole or part of the final disposition of an administrative hearing, whenever made effective by an agency head, whether affirmative, negative, injunctive, declaratory, agreed, or imperative in form.

(7) "Hearing officer" means the individual, duly qualified and employed pursuant to this chapter, assigned by an agency head as presiding officer for an administrative hearing or the presiding member of the agency head.

(8) "Division" means the Division of Administrative Hearings in the Office of the Attorney General created pursuant to KRS 15.111.^[1]

Section 13B.020: Application of chapter—exemptions

Text of Section 13B.020

(1) The provisions of this chapter shall apply to all administrative hearings conducted by an agency, with the exception of those specifically exempted under this section. The provisions of this chapter shall supersede any other provisions of the Kentucky Revised Statutes and administrative regulations, unless exempted under this section, to the extent these other provisions are duplicative or in conflict. This chapter creates only procedural rights and shall not be construed to confer upon any person a right to hearing not expressly provided by law.

(2) The provisions of this chapter shall not apply to:

(a) Investigations, hearings to determine probable cause, or any other type of information gathering or fact finding activities;

(b) Public hearings required in KRS Chapter 13A for the promulgation of administrative regulations;

(c) Any other public hearing conducted by an administrative agency which is nonadjudicatory in nature and the primary purpose of which is to seek public input on public policy making;

(d) Military adjudicatory proceedings conducted in accordance with KRS Chapter 35;

(e) Administrative hearings conducted by the legislative and judicial branches of state government;

(f) Administrative hearings conducted by any city, county, urban-county, charter county, or special district contained in KRS Chapters 65 to 109, or any other unit of local government operating strictly in a local jurisdictional capacity;

(g) Informal hearings which are part of a multilevel hearing process that affords an administrative hearing at some point in the hearing process if the procedures for informal hearings are approved and promulgated in accordance with subsections (4) and (5) of this section;

(h) Limited exemptions granted for specific hearing provisions and denoted by reference in the text of the applicable statutes or administrative regulations;

(i) Administrative hearings exempted pursuant to subsection (3) of this section;

(j) Administrative hearings exempted, in whole or in part, pursuant to subsections (4) and (5) of this section; and

(k) Any administrative hearing which was commenced but not completed prior to July 15, 1996.

(3) The following administrative hearings are exempt from application of this chapter in compliance with 1994 Ky. Acts ch. 382, sec. 19:

(a) Finance and Administration Cabinet

1. Higher Education Assistance Authority

a. Wage garnishment hearings conducted under authority of 20 U.S.C. sec. 1095a and 34 C.F.R. sec. 682.410

b. Offset hearings conducted under authority of 31 U.S.C. sec. 3720A and sec. 3716, and 34 C.F.R. sec. 30.33

2. Department of Revenue

a. Any licensing and bond revocation hearings conducted under the authority of KRS 138.210 to 138.448 and 234.310 to 234.440

b. Any license revocation hearings under KRS 131.630 and 138.130 to 138.205

(b) Cabinet for Health and Family Services

1. Office of Health Policy

a. Certificate-of-need hearings and licensure conducted under authority of KRS Chapter 216B

b. Licensure revocation hearings conducted under authority of KRS Chapter 216B

2. Department for Community Based Services

a. Supervised placement revocation hearings conducted under authority of KRS Chapter 630

3. Department for Income Support

a. Disability determination hearings conducted under authority of 20 C.F.R. sec. 404

4. Department for Medicaid Services

a. Administrative appeal hearings following an external independent third-party review of a Medicaid managed care organization's final decision that denies, in whole or in part, a health care service to an enrollee or a claim for reimbursement to the provider for a health care service rendered by the provider to an enrollee of the Medicaid managed care organization, conducted under authority of KRS 205.646

(c) Justice and Public Safety Cabinet

1. Department of Kentucky State Police

a. Kentucky State Police Trial Board disciplinary hearings conducted under authority of KRS Chapter 16

2. Department of Corrections

a. Parole Board hearings conducted under authority of KRS Chapter 439

b. Prison adjustment committee hearings conducted under authority of KRS Chapter 197

c. Prison grievance committee hearings conducted under authority of KRS Chapters 196 and 197

3. Department of Juvenile Justice

a. Supervised placement revocation hearings conducted under KRS Chapter 635

(d) Energy and Environment Cabinet

1. Department for Natural Resources

a. Surface mining hearings conducted under authority of KRS Chapter 350

b. Oil and gas hearings conducted under the authority of KRS Chapter 353, except for those conducted by the Kentucky Oil and Gas Conservation Commission pursuant to KRS 353.500

to 353.720

c. Explosives and blasting hearings conducted under the authority of KRS 351.315 to 351.375

2. Department for Environmental Protection

a. Wild River hearings conducted under authority of KRS Chapter 146

b. Water resources hearings conducted under authority of KRS Chapter 151

c. Water plant operator and water well driller hearings conducted under authority of KRS Chapter 223

d. Environmental protection hearings conducted under authority of KRS Chapter 224

e. Petroleum Storage Tank Environmental Assurance Fund hearings under authority of KRS Chapter 224

3. Public Service Commission

a. Utility hearings conducted under authority of KRS Chapters 74, 278, and 279

Education and Labor Cabinet

1. Department of Workers' Claims

a. Workers' compensation hearings conducted under authority of KRS Chapter 342

2. Kentucky Occupational Safety and Health Review Commission

a. Occupational safety and health hearings conducted under authority of KRS Chapter 338

3. Unemployment insurance hearings conducted under authority of KRS Chapter 341

(f) Public Protection Cabinet

1. Kentucky Claims Commission

a. Liability hearings conducted under authority of KRS 49.020(1) and 49.040 to 49.180

(g) Secretary of State

1. Registry of Election Finance

a. Campaign finance hearings conducted under authority of KRS Chapter 121

(h) State universities and colleges

1. Student suspension and expulsion hearings conducted under authority of KRS Chapter 164

2. University presidents and faculty removal hearings conducted under authority of KRS Chapter 164

3. Campus residency hearings conducted under authority of KRS Chapter 164

4. Family Education Rights to Privacy Act hearings conducted under authority of 20 U.S.C. sec. 1232 and 34 C.F.R. sec. 99

5. Federal Health Care Quality Improvement Act of 1986 hearings conducted under authority of 42 U.S.C. sec. 11101 to 11115 and KRS Chapter 311.

(4) Any administrative hearing, or portion thereof, may be certified as exempt by the Attorney General based on the following criteria:

(a) The provisions of this chapter conflict with any provision of federal law or regulation with which the agency must comply, or with any federal law or regulation with which the agency must comply to permit the agency or persons within the Commonwealth to receive federal tax benefits or federal funds or other benefits;

(b) Conformity with the requirement of this chapter from which exemption is sought would be so unreasonable or so impractical as to deny due process because of undue delay in the conduct of administrative hearings; or

(c) The hearing procedures represent informal proceedings which are the preliminary stages or the review stages of a multilevel hearing process, if the provisions of this chapter or the provisions of a substantially equivalent hearing procedure exempted under subsection (3) of this section are applied at some level within the multilevel process.

(5) The Attorney General shall not exempt an agency from any requirement of this chapter until the agency establishes alternative procedures by administrative regulation which, insofar as practical, shall be consistent with the intent and purpose of this chapter. When regulations for alternative procedures are submitted to the Administrative Regulation Review Subcommittee, they shall be accompanied by the request for exemption and the approval of exemption from the Attorney General. The decision of the Attorney General, whether affirmative or negative, shall be subject to judicial review in the Franklin Circuit Court within thirty (30) days of the date of issuance. The court shall not overturn a decision of the Attorney General unless the decision was arbitrary or capricious or contrary to law.

(6) Except to the extent precluded by another provision of law, a person may waive any procedural right conferred upon that person by this chapter.

(7) The provisions of KRS 13B.030(2)(b) shall not apply to administrative hearings held under KRS 11A.100 or 18A.095.^[1]

Section 13B.030: Powers of agency head—hearing officers

Text of Section 13B.030

(1) An agency head may exercise all powers conferred on an agency relating to the conduct of administrative hearings, and he may delegate conferred powers to a hearing officer or a member of a collegial body that serves as an agency head, or he may delegate conferred powers to a hearing officer to conduct an administrative hearing before a hearing panel, reserving the authority to render a recommended order to that panel. An agency head may not, however, delegate the power to issue a final order unless specifically authorized by statute, or unless disqualified in accordance with KRS 13B.040(2).

(2)

(a) In securing hearing officers as necessary to conduct administrative hearings under the jurisdiction of the agency, an agency may:

1. Employ hearing officers;

2. Contract with another agency for hearing officers; or

3. Contract with private attorneys through personal service contract.

(b) An agency may secure hearing officers pursuant to subsection (2)(a)3. of this section only if the Attorney General has first determined that the Attorney General's Office cannot provide the needed hearing officers to the agency. If the Attorney General determines that the Attorney General's Office can provide the needed hearing officers to the agency, the agency shall use the hearing officers provided by the Attorney General's Office. The expenses incurred by the Attorney General's Office in providing the hearing officers to the agency shall be paid to the Attorney General's Office by the agency in the following manner:

1. The amount to be paid by the agency to the Attorney General's Office shall be established by vouchers submitted by the Attorney General's Office to the agency which shall be promptly paid by the agency, at the

beginning of, at the end of, or at any time during the provision of the hearing officers by the Attorney General's Office.

2. The expenses to be paid to the Attorney General's Office shall be calculated according to the amount of time spent by the salaried hearing officers of the Attorney General's Office in providing the services. The charge for time spent shall not exceed twenty-five percent (25%) more than the amount allowed for a sole practitioner under personal service contract. The Attorney General may require payment in advance of the provision of the requested services based on his calculation of the amount of time that will be spent by the salaried hearing officers of the Attorney General's Office in providing the services. The agency shall be reimbursed for any overpayment at the conclusion of the provision of services by the Attorney General's Office.

(3) A hearing officer shall possess and meet qualifications as the Personnel Cabinet and the employing agency, with the advice of the division, may find necessary to assure competency in the conduct of an administrative hearing. The qualifications in this subsection shall not, however, apply to a member of a board, commission, or other collegial body who may serve as a hearing officer in his capacity as a member of the collegial body.

(4) All hearing officers, including members of collegial bodies who serve as hearing officers, shall receive training necessary to prepare them to conduct a competent administrative hearing. The training shall pertain to the conduct of administrative hearings generally and to the applications of the provisions of this chapter, specifically. The division shall establish by administrative regulation minimum standards concerning the length of training, course content, and instructor qualifications. Required training shall not exceed eighteen (18) classroom hours for initial training and six (6) classroom hours per year for continuing training. Actual training may be conducted by an agency or any other organization, if the training program offered has been approved by the division as meeting minimum standards.^[1]

Section 13B.040: Qualifications of hearing officer

Text of Section 13B.040

(1) A person who has served as an investigator or prosecutor in an administrative hearing or in its preadjudicative stage shall not serve as hearing officer or assist or advise a hearing officer in the same proceeding. This shall not be construed as preventing a person who has participated as a hearing officer in a determination of probable cause or other equivalent preliminary determination from serving as a hearing officer in the same proceeding.

(2)

(a) A hearing officer, agency head, or member of an agency head who is serving as a hearing officer shall voluntarily disqualify himself and withdraw from any case in which he cannot afford a fair and impartial hearing or consideration. Any party may request the disqualification of a hearing officer, agency head, or member of the agency head by filing an affidavit, upon discovery of facts establishing grounds for a disqualification, stating the particular grounds upon which he claims that a fair and impartial hearing cannot be accorded. A request for the disqualification of a hearing officer shall be answered by the agency head within sixty (60) days of its filing. The request for disqualification and the disposition of the request shall be a part of the official record of the proceeding. Requests for disqualification of a hearing officer shall be determined by the agency head. Requests for disqualification of a hearing officer who is a member of the agency head shall be determined by the majority of the remaining members of the agency head.

(b) Grounds for disqualification of a hearing officer shall include, but shall not be limited to, the following:

1. Serving as an investigator or prosecutor in the proceeding or the preadjudicative stages of the proceeding;

2. Participating in an ex parte communication which would prejudice the proceedings;

3. Having a pecuniary interest in the outcome of the proceeding; or

4. Having a personal bias toward any party to a proceeding which would cause a prejudgment on the outcome of the proceeding.^[1]

Section 13B.050: Notice of administrative hearing

Text of Section 13B.050

(1) In any administrative hearing, the agency shall conduct the hearing as soon as practicable and shall give notice of the hearing to the parties not less than twenty (20) days in advance of the date set for the hearing, unless otherwise required by federal law. An agency shall make reasonable effort to schedule a hearing on a date that is convenient to the parties involved.

(2) The notice required by subsection (1) of this section shall be served on the parties by certified mail, return receipt requested, sent to the last known address of the parties, or by personal service, with the exception of notices of Personnel Board hearings and all board orders which may be served by first-class mail. Service by certified mail shall be complete upon the date on which the agency receives the return receipt or the returned notice.

(3) The notice required by this section shall be in plain language and shall include:

(a) A statement of the date, time, place, and nature of the hearing;

(b) The name, official title, and mailing address of the hearing officer;

(c) The names, official titles, mailing addresses, and, if available, telephone numbers of all parties to the hearing, including the counsel or representative of the agency;

(d) A statement of the factual basis for the agency action along with a statement of issues involved, in sufficient detail to give the parties reasonable opportunity to prepare evidence and argument;

(e) A reference to the specific statutes and administrative regulations which relate to the issues involved and the procedure to be followed in the hearing;

(f) A statement advising the person of his right to legal counsel;

(g) A statement of the parties' right to examine, at least five (5) days prior to the hearing, a list of witnesses the parties expect to call at the hearing, any evidence to be used at the hearing and any exculpatory information in the agency's possession; and

(h) A statement advising that any party who fails to attend or participate as required at any stage of the administrative hearing process may be held in default under this chapter.

(4) If an agency decides not to conduct an administrative hearing in response to a petition, the agency shall notify the petitioner of its decision in writing, with a brief statement of the agency's reasons and any administrative review available to the petitioner.

(5) Subsections (1), (2), and (3) of this section shall not apply to notices issued under KRS 11A.080(4)(b) when a party fails to file an answer or otherwise fails to participate.^[1]

Section 13B.060: Petition for intervention

Text of Section 13B.060

(1) The hearing officer shall grant a petition for intervention if:

(a) The petitioner has a statutory right to initiate the proceeding in which he wishes to intervene; or

(b) The petitioner has an interest which is or may be adversely affected by the outcome of the proceeding.

(2) The hearing officer may grant intervention after consideration of the following factors and a determination that intervention is in the interests of justice:

(a) The nature of the issues;

(b) The adequacy of representation of the petitioner's interest which is provided by the existing parties to the proceeding;

(c) The ability of the petitioner to present relevant evidence and argument; and

(d) The effect of intervention on the agency's ability to implement its statutory mandate.

(3) Unless otherwise required by federal law, a petition for intervention shall be filed and copies mailed to all parties named in the notice of the hearing, at least fourteen (14) days before the hearing. The parties to the hearing shall have seven (7) days within which to file any response they may have to the petition to intervene. If a petitioner qualifies for intervention under subsection (2) of this section, the hearing officer may impose conditions upon the intervenor's participation in the proceedings, either at the time that intervention is granted or at any subsequent time. Conditions may include:

(a) Limiting the intervenor's participation to designated issues in which the intervenor has a particular interest demonstrated by the petition;

(b) Limiting the intervenor's use of discovery, cross-examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings; and

(c) Requiring two (2) or more intervenors to combine their presentations of evidence and argument, cross-examination, discovery, and other participation in the proceedings.

(4) The hearing officer, at least three (3) days before the hearing, shall issue an order granting or denying each pending petition for intervention, specifying any conditions, and briefly stating the reasons for the order. The hearing officer shall promptly give notice of an order granting, denying, or modifying intervention to the petitioner for intervention and to all parties.^[1]

Section 13B.070: Prehearing conference—mediation and informal settlement procedures

Text of Section 13B.070

(1) A hearing officer may convene and conduct a prehearing conference upon reasonable notice to all parties to explore jurisdictional matters, mediation and settlement possibilities, preparation of stipulations, clarification of issues, rulings on witnesses, taking of evidence, issuance of subpoenas and orders, and other matters that will promote the orderly and prompt conduct of the hearing.

(2) Upon conclusion of a prehearing conference, the hearing officer shall issue a prehearing order incorporating all matters determined at the prehearing conference. If a prehearing conference is not held, the hearing officer may issue a prehearing order, based on the pleadings, to regulate the conduct of the hearing.

(3) Except to the extent precluded by another provision of law, mediation or informal settlement of matters that may make unnecessary more elaborate proceedings under this chapter is encouraged. Agencies that employ informal settlement procedures shall establish by administrative regulation the specific procedures to be used. This subsection shall not be construed, however, as requiring any party to settle a matter pursuant to informal procedures when the right to an administrative hearing is conferred.^[1]

Section 13B.080: Conduct of hearing

Text of Section 13B.080

(1) A hearing officer shall preside over the conduct of an administrative hearing and shall regulate the course of the proceedings in a manner which will promote the orderly and prompt conduct of the hearing. When a prehearing order has been issued, the hearing officer shall regulate the hearing in conformity with the prehearing order.

(2) The hearing officer, at appropriate stages of the proceedings, shall give all parties full opportunity to file pleadings, motions, objections, and offers of settlement. The hearing officer, at appropriate stages of the proceedings, may give all parties full opportunity to file briefs, proposed findings of fact and conclusions of law, and proposed recommended or final orders. The original of all filings shall be mailed to the agency, and copies of any filed item shall be served on all parties and the hearing officer by mail or any other means permitted by law or prescribed by agency administrative regulation. The agency shall when it is received stamp the time and date upon a document.

(3) The hearing officer may issue subpoenas and discovery orders when requested by a party or on his own volition. When a subpoena is disobeyed, any party may apply to the Circuit Court of the judicial circuit in which the administrative hearing is held for an order requiring obedience. Failure to comply with an order of the court shall be cause for punishment as a contempt of the court.

(4) To the extent necessary for the full disclosure of all relevant facts and issues, the hearing officer shall afford all parties the opportunity to respond, present evidence and argument, conduct cross-examination, and submit rebuttal evidence, except as restricted by limited grant of intervention or a prehearing order.

(5) Any party to an administrative hearing may participate in person or be represented by counsel. In informal proceedings, a party may be represented by other professionals if appropriate and if permitted by the agency by administrative regulation.

(6) If a party properly served under KRS 13B.050 fails to attend or participate in a prehearing conference, hearing, or other stage of the administrative hearing process, or fails to comply with the orders of a hearing officer, the hearing officer may adjourn the proceedings and issue a default order granting or denying relief as appropriate, or may conduct the proceedings without the participation of the defaulting party, having due regard for the interests of justice and the orderly and prompt conduct of the proceedings. A default order shall be considered a recommended order and shall be processed as provided in KRS 13B.110.

(7) A hearing officer may conduct all or part of an administrative hearing, or a prehearing conference, by telephone, television, or other electronic means, if each party to the hearing has an opportunity to hear, and, if technically feasible, to see the entire proceeding as it occurs, and if each party agrees.

(8) An administrative hearing shall be open to the public unless specifically closed pursuant to a provision of law. If an administrative hearing is conducted by telephone, television, or other electronic means, and is not closed, public access shall be satisfied by giving the public an opportunity, at reasonable times, to hear or inspect the agency's record.^[1]

Section 13B.090: Findings of fact—evidence—recording of hearing—burdens of proof

Text of Section 13B.090

(1) In an administrative hearing, findings of fact shall be based exclusively on the evidence on the record. The hearing officer shall exclude evidence that is irrelevant, immaterial, unduly repetitious, or excludable on constitutional or statutory grounds or on the basis of evidentiary privilege recognized in the courts of this Commonwealth. Hearsay evidence may be admissible, if it is the type of evidence that reasonable and prudent persons would rely on in their daily affairs, but it shall not be sufficient in itself to support an agency's findings of facts unless it would be admissible over objections in civil actions.

(2) All testimony shall be made under oath or affirmation. Any part of the evidence may be received in written form if doing so will expedite the hearing without substantial prejudice to the interests of any party. The hearing officer may make a recommended order in an administrative hearing submitted in written form if the hearing officer determines there are no genuine issues of material fact in dispute and judgment is appropriate as a matter of law.

(3) Any party shall have the right to inspect, at least five (5) days prior to the hearing, a list of all witnesses every other party expects to call at the hearing, and the available documentary or tangible evidence relating to an administrative hearing either in person or by counsel. Copies of documentary evidence may be obtained upon the payment of a fee, except documents protected from disclosure by state or federal law. Nothing in this section shall be construed as giving a party the right to examine or copy the personal notes, observations, or conclusions of the agency staff, unless exculpatory in nature, nor shall it be construed as allowing access to the work product of counsel for the agency. Conditions for examining and copying agency records, fees to be charged, and other matters pertaining to access to these records shall be governed by KRS 61.870 to 61.884. To the extent required by due process, the hearing officer may order the inspection of any records excluded from the application of KRS 61.870 to 61.884 under KRS 61.878 that relate to an act, transaction, or event that is a subject of the hearing, and may order their inclusion in the record under seal.

(4) Objections to evidentiary offers may be made by any party and shall be noted in the record.

(5) The hearing officer may take official notice of facts which are not in dispute, or of generally-recognized technical or scientific facts within the agency's specialized knowledge. The hearing officer shall notify all parties, either before or during the hearing, or in preliminary reports or otherwise, of any facts so noticed and their source. All parties shall be given an opportunity to contest facts officially noticed.

(6) The agency shall cause all testimony, motions, and objections in a hearing to be accurately and completely recorded. Any person, upon request, may receive a copy of the recording or a copy of the transcript, if the hearing has been transcribed, at the discretion of the agency, unless the hearing is closed by law. The agency may prepare a transcript of a hearing or a portion of a hearing upon request but the party making the request shall be responsible for the transcription costs. The form of all requests and fees charged shall be consistent with KRS 61.870 to 61.884.

(7) In all administrative hearings, unless otherwise provided by statute or federal law, the party proposing the agency take action or grant a benefit has the burden to show the propriety of the agency action or entitlement to the benefit sought. The agency has the burden to show the propriety of a penalty imposed or the removal of a benefit previously granted. The party asserting an affirmative defense has the burden to establish that defense. The party with the burden of proof on any issue has the burden of going forward and the ultimate burden of persuasion as to that issue. The ultimate burden of persuasion in all administrative hearings is met by a preponderance of evidence in the record. Failure to meet the burden of proof is grounds for a recommended order from the hearing officer.^[1]

Section 13B.100: Prohibited communications

Text of Section 13B.100

(1) Unless required for the disposition of ex parte matters specifically authorized by statute, a hearing officer shall not communicate off the record with any party to the hearing or any other person who has a direct or indirect interest in the outcome of the hearing, concerning any substantive issue, while the proceeding is pending.

(2) The prohibition stated in subsection (1) shall not apply to:

(a) Communication with other agency staff, if the communication is not an ex parte communication received by staff; and

(b) Communication among members of a collegial body or panel which by law is serving as a hearing officer.

(3) If an ex parte communication occurs, the hearing officer shall note the occurrence for the record, and he shall place in the record a copy of the communication, if it was written, or a memorandum of the substance of the communication, if it was oral.^[1]

Section 13B.110: Recommended order

Text of Section 13B.110

(1) Except when a shorter time period is provided by law, the hearing officer shall complete and submit to the agency head, no later than sixty (60) days after receiving a copy of the official record of the proceeding, a written recommended order which shall include his findings of fact, conclusion of law, and recommended disposition of the hearing, including recommended penalties, if any. The recommended order shall also include a statement advising parties fully of their exception and appeal rights.

(2) If an extension of time is needed by the hearing officer to complete and submit his recommended order to the agency head, the hearing officer shall show good cause to the agency head, in writing, and based upon substantial proof, that an extension of time is needed.

(3) If the agency head, after a showing of good cause, grants the hearing officer an extension of time:

(a) The extension shall not exceed thirty (30) days from the date the extension was granted;

(b) The statement granting the extension shall be included in the record of the hearing; and

(c) Notice of the extension shall be sent to all parties.

(4) A copy of the hearing officer's recommended order shall also be sent to each party in the hearing and each party shall have fifteen (15) days from the date the recommended order is mailed within which to file exceptions to the recommendations with the agency head. Transmittal of a recommended order may be sent by regular mail to the last known address of the party.

(5) The provisions of this section shall not apply in an administrative hearing where the hearing officer conducts the hearing in the presence of the agency head who renders a decision without the recommendation of the hearing officer.^[1]

Section 13B.120: Final order

Text of Section 13B.120

(1) In making the final order, the agency head shall consider the record including the recommended order and any exceptions duly filed to a recommended order.

(2) The agency head may accept the recommended order of the hearing officer and adopt it as the agency's final order, or it may reject or modify, in whole or in part, the recommended order, or it may remand the matter, in whole or in part, to the hearing officer for further proceedings as appropriate.

(3) The final order in an administrative hearing shall be in writing and stated in the record. If the final order differs from the recommended order, it shall include separate statements of findings of fact and conclusions of law. The final order shall also include the effective date of the order and a statement advising parties fully of available appeal rights.

(4) Except as otherwise required by federal law, the agency head shall render a final order in an administrative hearing within ninety (90) days after:

(a) The receipt of the official record of the hearing in which there was no hearing officer submitting a recommended order under KRS 13B.110; or

(b) The hearing officer submits a recommended order to the agency head, unless the matter is remanded to the hearing officer for further proceedings.

(5) Unless waived by the party, a copy of the final order shall be transmitted to each party or to his attorney of record in the same manner as provided in KRS 13B.050.

(6) This section shall not apply to disposition pursuant to KRS 13B.070(3).

(7) If, pursuant to statute, an agency may review the final order of another agency, the review is deemed to be a continuous proceeding as if before a single agency. The final order of the first agency is treated as a recommended order and the second agency functions as though it were reviewing a recommended order in accordance with this section.^[1]

Section 13B.125: Emergency action—hearing—appeal

Text of Section 13B.125

(1) An agency may take emergency action affecting the legal rights, duties, privileges or immunities of named persons without a hearing only if duly authorized by statute to so act. If an agency takes emergency action, the agency shall conduct an emergency hearing in accordance with the provisions of this section.

(2) An agency head or an official of an agency duly authorized by law to summarily act in emergency situations may issue an emergency order to stop, prevent, or avoid an immediate danger to the public health, safety, or welfare. The emergency order shall contain findings of fact and conclusions of law upon which the agency bases the emergency order. The agency shall give notice of the emergency order to all affected parties as is practicable under the circumstances, and notice shall be served in the same manner as provided in KRS 13B.050(2). The emergency order is effective when received by the affected party or his representative.

(3) Any person required to comply with an emergency order issued under subsection (2) of this section may request an emergency hearing to determine the propriety of the order. The agency shall conduct an emergency hearing within ten (10) working days of the request for hearing. The agency shall give all affected parties reasonable notice of the hearing and to the extent practicable shall conduct the hearing in conformity with this chapter. The hearing on the emergency order may be conducted by a hearing officer qualified in accordance with KRS 13B.040. Within five (5) working days of completion of the hearing, the agency or hearing officer shall render a written decision affirming, modifying, or revoking the emergency order. The emergency order shall be affirmed if there is substantial evidence of a violation of law which constitutes an immediate danger to the public health, safety, or welfare.

(4) The decision rendered under subsection (3) of this section shall be a final order of the agency on the matter, and any party aggrieved by the decision may appeal to Circuit Court in the same manner as provided in KRS 13B.140.^[1]

Section 13B.130: Official record of hearing

Text of Section 13B.130

In each administrative hearing, an agency shall keep an official record of the proceedings which shall consist of:

(1) All notices, pleadings, motions, and intermediate rulings;

(2) Any prehearing orders;

(3) Evidence received and considered;

(4) A statement of matters officially noticed;

(5) Proffers of proof and objections and rulings thereon;

(6) Proposed findings, requested orders, and exemptions;

(7) A copy of the recommended order, exceptions filed to the recommended order, and a copy of the final order;

(8) All requests by the hearing officer for an extension of time, and the response of the agency head;

(9) Ex parte communications placed upon the record by the hearing officer; and

(10) A recording or transcript of the proceedings.^[1]

Section 13B.140: Judicial review of final order

Text of Section 13B.140

(1) All final orders of an agency shall be subject to judicial review in accordance with the provisions of this chapter. A party shall institute an appeal by filing a petition in the Circuit Court of venue, as provided in the agency's enabling statutes, within thirty (30) days after the final order of the agency is mailed or delivered by personal service. If venue for appeal is not stated in the enabling statutes, a party may appeal to Franklin Circuit Court or the Circuit Court of the county in which the appealing party resides or operates a place of business. Copies of the petition shall be served by the petitioner upon the agency and all parties of record. The petition shall include the names and addresses of all parties to the proceeding and the agency involved, and a statement of the grounds on which the review is requested. The petition shall be accompanied by a copy of the final order.

(2) A party may file a petition for judicial review only after the party has exhausted all administrative remedies available within the agency whose action is being challenged, and within any other agency authorized to exercise administrative review.

(3) Within twenty (20) days after the service of the petition, or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the official record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. The court may require or permit subsequent correction or additions to the official record. If the court requests a transcript of proceedings that have not been transcribed, the cost of the transcription shall be paid by the party initiating the appeal, unless otherwise agreed to by all parties.

(4) A petition for judicial review shall not automatically stay a final order pending the outcome of the review, unless:

(a) An automatic stay is provided by statute upon appeal or at any point in the administrative proceedings;

(b) A stay is permitted by the agency and granted upon request; or

(c) A stay is ordered by the Circuit Court of jurisdiction upon petition.^[1]

Section 13B.150: Conduct of judicial review

Text of Section 13B.150

(1) Review of a final order shall be conducted by the court without a jury and shall be confined to the record, unless there is fraud or misconduct involving a party engaged in administration of this chapter. The court, upon request, may hear oral argument and receive written briefs.

(2) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the final order or it may reverse the final order, in whole or in part, and remand the case for further proceedings if it finds the agency's final order is:

(a) In violation of constitutional or statutory provisions;

(b) In excess of the statutory authority of the agency;

(c) Without support of substantial evidence on the whole record;

(d) Arbitrary, capricious, or characterized by abuse of discretion;

(e) Based on an ex parte communication which substantially prejudiced the rights of any party and likely affected the outcome of the hearing;

(f) Prejudiced by a failure of the person conducting a proceeding to be disqualified pursuant to KRS 13B.040(2); or

(g) Deficient as otherwise provided by law.^[1]

Section 13B.160: Judicial appeal

Text of Section 13B.160

Any aggrieved party may appeal any final judgment of the Circuit Court under this chapter to the Court of Appeals in accordance with the Kentucky Rules of Civil Procedure.^[1]

Section 13B.170: Administrative regulations

Text of Section 13B.170

(1) An agency shall have authority to promulgate administrative regulations that are necessary to carry out the provisions of this chapter.

(2) Nothing in this chapter shall be construed to prohibit an agency from enacting administrative hearing procedures by administrative regulations which are supplemental to the provisions of this chapter.^[1]

External links

Footnotes

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