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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Shares Concerns Regarding SB 1  Posted: January 24, 2014

30 Years of Protecting Kentucky’s Environment

January 24, 2014

Hon. Joe Bowen
Kentucky Senate
State Capitol
Frankfort, Kentucky 40601

Re: Senate Bill 1

Dear Senator Bowen:

As I promised, I’m writing to express my concerns regarding Senate Bill 1, which proposes to place on the ballot an amendment to the Kentucky Constitution that would allow the General Assembly to delegate to the Legislative Research Commission the power to prohibit the adoption of administrative regulations that the LRC, or a legislative committee, finds to be deficient.

My concerns are threefold; two addressed respectively to the apparent lack of need for such an amendment, and the delegation of legislative power to 16 members of the General Assembly, and the third, related to the proposed text of the amendment.

My concern with the lack of need for an action as substantial as amending the state Constitution, arises from the fact that very few of the administrative regulations reviewed by the General Assembly in any year are determined to be deficient, and that the existing legislative process is adequate to address those few cases without fundamentally altering the balance of and separation of powers.

Those instances in which the Administrative Regulations Review Subcommittee has determined a proposed administrative regulation to be deficient are extremely rare. According to the Report of the 2013 Administrative Regulation review Subcommittee, from November 2012 through November 2013, executive branch agencies submitted 492 ordinary administrative regulations (up 19% from the prior year), 88 of which were new, 329 of which amended existing regulations, and 75 of which were amended after public comment.

Of the ordinary regulations reviewed, 434 were approved (some after the agency accepted comments from the Subcommittee regarding Chapter 13A compliance) and only 3 were found to be deficient. Of those 3, the agency withdrew one, and only two became effective based on written determinations by the Governor – the first being the required core academic standards, and the second, a regulation relating to managed care promulgated by the Department for Medicaid Services. Thus, less than 1% of the regulations reviewed were found to be deficient for 2013.

Indeed, for the period of 2010 through 2012, the numbers are quite similar. In 2012, the Administrative Regulations Review Subcommittee made no finding of deficiency for any of the administrative regulations reviewed. In 2011, one regulation relating to assessment of ad valorem taxes on watercraft was found deficient and later withdrawn by the agency.

With the length of time involved in promulgation of administrative regulations, and with the General Assembly meeting in annual session, those rare instances in which the Governor determines to implement a regulation notwithstanding a finding of deficiency, can be addressed through specific legislation, such as that proposed in House Bill 215, and the full membership of the House and Senate can debate these matters of public policy. The delegation of the power to prohibit the adoption of administrative regulations to 16 members of the General Assembly does not allow for the involvement of both Chambers in addressing those rare cases where the review committee(s) believe that a regulation has failed to comport with the intent or language of the enabling statutes.

The textual concern that I have is that Section 2 of the bill doesn’t inform the voter that the power to stop the adoption of an administrative regulation could be vested not in the General Assembly as a whole, but in the Legislative Research Commission. A more accurate phrasing of the question might be “Do you agree that the leadership of the Kentucky General Assembly should be able to stop the adoption of an administrative regulation that it has found to be deficient?”

Senator, I can fully appreciate the frustration that some members of the General Assembly may have concerning the Governor’s decision to adopt the revised core standards and managed care revisions notwithstanding the ARRS rejection of those regulations. I have, as you know, had (and expressed) my own frustrations on occasion when I believe that an agency has acted in a manner that is not consonant with sound science and statutory mandate. I would hope that through a more targeted and metered revision to the current KRS Chapter 13A process as may be deemed necessary, or by substantive legislation addressing those few regulations that the General Assembly as a deliberative body determines to need such action, those very rare instances could be addressed without upending the balance of powers in our Constitution that has worked effectively in the main for many years.

Thank you for the opportunity to express these concerns.

Cordially,

/s/

Tom FitzGerald
Director

cc: Co-Sponsors

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