Current Status Introducing Body:Senate Bill Number:1435 Primary Sponsor:Moore Committee Number:11 Type of Legislation:GB Subject:Administrative procedures, regulations Residing Body:Senate Current Committee:Judiciary Computer Document Number:BR1/2406.AC Introduced Date:Mar 30, 1992 Last History Body:Senate Last History Date:Mar 30, 1992 Last History Type:Introduced, read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Moore Type of Legislation:General Bill
Bill Body Date Action Description CMN
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1435 Senate Mar 30, 1992 Introduced, read first time, 11
referred to Committee
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TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 1-23-15 SO AS TO PROVIDE THAT NO CONDITION OR REQUIREMENT OF A LICENSE OR PERMIT ISSUED BY A STATE AGENCY MAY BE ENFORCED IF NOT PROMULGATED AS A REGULATION; BY ADDING SECTION 1-23-115 SO AS TO REQUIRE AN ASSESSMENT REPORT ON REGULATIONS THAT MAY HAVE A SUBSTANTIAL ECONOMIC IMPACT ON PERSONS AND TO PROVIDE EXEMPTIONS AND FOR THE CONTENTS OF THE REPORT; TO AMEND SECTION 1-23-10, RELATING TO DEFINITIONS UNDER THE STATE REGISTER AND CODE OF REGULATIONS, SO AS TO REVISE THE DEFINITION OF "REGULATION" TO INCLUDE AGENCY ACTIONS WHICH MAY HAVE A SUBSTANTIAL ECONOMIC IMPACT ON PERSONS; TO AMEND SECTION 1-23-110, AS AMENDED, RELATING TO REQUIREMENTS FOR PROMULGATING REGULATIONS, SO AS TO REVISE THESE REQUIREMENTS TO INCLUDE SUBMITTING ASSESSMENT REPORTS WHICH ALSO MUST BE MADE AVAILABLE TO THE PUBLIC; TO AMEND SECTION 1-23-120, AS AMENDED, RELATING TO REQUIREMENTS OF GENERAL ASSEMBLY REVIEW OF REGULATIONS, SO AS TO PROVIDE THAT A COPY OF THE ASSESSMENT REPORT MUST BE SUBMITTED WHEN A REGULATION IS SUBMITTED FOR REVIEW AND TO PROVIDE THAT A REGULATION CONTAINING AN ASSESSMENT REPORT IS DISAPPROVED IF IT IS NOT APPROVED BY JOINT RESOLUTION WITHIN ONE HUNDRED TWENTY DAYS OF BEING SUBMITTED TO THE GENERAL ASSEMBLY; AND TO AMEND SECTION 1-23-130, RELATING TO EMERGENCY REGULATIONS, SO AS TO PROVIDE THAT THE AGENCY MUST OBTAIN A STATEMENT FROM THE GOVERNOR THAT AN EMERGENCY EXISTS BEFORE FILING WITH THE LEGISLATIVE COUNCIL.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 1-23-15. No condition or requirement of a permit or license issued by a state agency may be enforced unless that condition or requirement is promulgated as a regulation pursuant to this article."
SECTION 2. The 1976 Code is amended by adding:
"Section 1-23-115.(A) A state agency must submit to the State Budget and Control Board a preliminary assessment report on those regulations defined in Section 1-23-10(4)(b). Upon receiving this report and obtaining additional information available from the promulgating agency and any other information needed from other sources, the Budget and Control Board shall prepare and publish a final assessment report within sixty days of receiving the preliminary report. The Budget and Control Board shall forward the final assessment report and a summary of the report to the promulgating agency.
(B) An assessment report must disclose the effects of the proposed regulation on the economic and social welfare of the community and State and the effects of the economic activities arising out of the proposed regulation and must include:
(1) a description of the regulation, the purpose of the regulation, the legal authority for the regulation, and the plan for implementing the regulation;
(2) a determination of the need for the regulation and the expected benefit of the regulation;
(3) a determination that the regulation is the most cost-effective method for achieving the stated purpose;
(4) a determination of the cost-benefit relation of the regulation and a comparison of that cost-benefit relation to the cost-benefit relation resulting from not promulgating a regulation to achieve the stated purpose;
(5) a determination that the regulation represents the most efficient allocation of public and private resources to achieve the stated purpose;
(6) the effect of the regulation on competition;
(7) the effect of the regulation on the cost of living and doing business in the geographical area in which the regulation would be implemented;
(8) the effect of the regulation on employment in the geographical area in which the regulation would be implemented;
(9) the source of revenue to be used for implementing and enforcing the regulation;
(10) a conclusion on the short-term and long-term economic impact upon all persons substantially affected by the regulation, including an analysis containing a description of which persons will bear the costs of the regulation and which persons will benefit directly and indirectly from the regulation;
(11) the uncertainties associated with the estimation of particular benefits and burdens and the difficulties involved in the comparison of qualitatively and quantitatively dissimilar benefits and burdens.
An assessment report must not consider benefits or burdens on out-of-state political bodies or businesses. The assessment of benefits and burdens which cannot be precisely quantified may be expressed in qualitative terms. This subsection must not be interpreted to require numerically precise cost-benefit analysis.
(C) If information required to be included in the assessment report materially changes at any time before or after a regulation is approved by the General Assembly, the agency must submit the corrected information to the Budget and Control Board which must forward a revised assessment report to the Legislative Council for submission to the committees to which the regulation was referred during General Assembly review.
(D) An assessment report is not required on regulations:
(1) specifically exempt from General Assembly review by Section 1-23-120; however, if any portion of a regulation promulgated to maintain compliance with federal law is more stringent than federal law, then that portion is not exempt from this section;
(2) emergency regulations filed in accordance with Section 1-23-130; however, before an emergency regulation may be refiled pursuant to Section 1-23-130, an assessment report must be prepared in accordance with this section;
(3) nondiscretionary ministerial action by an agency which complies with applicable statutes and regulations;
(4) an action or activity of an agency which is required by law to be confidential;
(5) expenditures of money from trust funds which previously have been designed by the General Assembly for a specific purpose."
SECTION 3. Section 1-23-10(4) of the 1976 Code is amended to read:
"(4) `Regulation' means each agency statement:
(a) of general public applicability that implements or prescribes law or policy or practice requirements of any the agency;
(b) describing an agency action or activity, which may have substantial economic impact upon a person. Substantial economic impact may occur through a series of agency decisions which individually may not have substantial economic impact but which cumulatively have substantial economic impact.
The term includes the amendment or repeal of a prior regulation but does not include descriptions of agency procedures applicable only to agency personnel; opinions of the Attorney General; decisions or orders in rate making, price fixing, or licensing matters; awards of money to individuals; policy statements or rules of local school boards; regulations of the National Guard; decisions, orders or rules of the Probation, Parole and Pardon Board of Probation, Parole and Pardon Services; orders of the a supervisory or administrative agency of any a penal, mental, or medical institution, in respect to the institutional supervision, custody, control, care, or treatment of inmates, prisoners, or patients therein in the institution; decisions of the governing board of any a university, college, technical college, school, or other educational institution with regards to curriculum, qualifications for admission, dismissal and readmission, fees and charges for students, conferring degrees and diplomas, employment tenure and promotion of faculty and disciplinary proceedings; decisions of the State Human Affairs Commission relating to firms or individuals; and advisory opinions of any agencies an agency; and other agency actions relating only to specified individuals."
SECTION 4. Section 1-23-110 of the 1976 Code, as last amended by Act 91 of 1989, is further amended to read:
"Section 1-23-110. (a) This section applies only to the promulgation of regulations as defined in item (4) of Section 1-23-10 and is subject to the additional requirements of Section 1-23-120.
(b) (A) Before the promulgation, amendment, or repeal of a regulation, an agency shall:
(1) give notice of a drafting period by publication of a notice in the State Register. The notice shall must include the time when, the place where, and the manner in address to which interested persons may present their views submit written comments during the initial drafting procedures period before the regulations are submitted as proposed;
(2) submit to the State Budget and Control Board a preliminary assessment report prepared in accordance with Section 1-23-115 on regulations defined in Section 1-23-10(4)(b);
(2)(3) give at least thirty days' notice of intended action and opportunity of oral hearing that the agency will receive data, views, or arguments, orally and in writing, from interested persons on proposed regulations by publication of a notice in the State Register. The notice must include:
(a) the address to which written comments must be sent and the time period of not less than thirty days for submitting these comments;
(b) the date, time, and place of a public hearing which must not be held sooner than thirty days from the date the notice is published in the State Register;
(c) either the text or a synopsis of the proposed regulation,;
(d) the statutory authority for its promulgation, the time when, the place where, and the manner in which interested persons may present their views on it and;
(e) a preliminary fiscal impact statement prepared by the agency reflecting estimates of costs to be incurred by the State and its political subdivisions in complying with the proposed regulation. This requirement of A preliminary fiscal impact statement does is not apply to required for those regulations which are not subject to General Assembly review under the provisions of Section 1-23-120. The notice;
(f) the summary of the final assessment report prepared pursuant to Section 1-23-115 by the State Budget and Control Board and notice that copies of the final report are available from the agency. The agency may charge a reasonable fee to cover the costs associated with this distribution requirement. A regulation that does not require an assessment report because it does not come within the definition of Section 1-23-10(4)(b), must include a statement to that effect. A regulation exempt pursuant to Section 1-23-115(D) from filing an assessment report must include an explanation of the exemption.
(B) Notices required by this section must be mailed by the promulgating agency to all persons who have made timely requests of the agency for advance notice of proposed promulgation of regulations.
(3) afford all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. Opportunity for oral hearing, which may not be held sooner than thirty days from the date of publication of the notice in the State Register, must be granted if requested by twenty-five persons, by a governmental subdivision or agency, or by an association having not less than twenty-five members.
(C) The agency shall consider fully all written and oral submissions respecting the proposed regulation.
(C)(D) A proceeding to contest any a regulation on the ground of noncompliance with the procedural requirements of this section must be commenced within one year from the effective date of the regulation."
SECTION 5. Section 1-23-120 of the 1976 Code, as last amended by Act 91 of 1989, is further amended to read:
"Section 1-23-120. (A) All regulations except those specifically exempted under this article section must be submitted to the General Assembly for review in accordance with the provisions of the this article, but no regulation may be submitted to the General Assembly more than one year after publication of the drafting notice initiating the regulation pursuant to Section 1-23-110(b).
(B) To initiate the process of review, the agency shall file with the President of the Senate and the Speaker of the House of Representatives:
(1) a copy of any the regulations promulgated along with;
(2) a request for review; and
(3) a brief synopsis of the regulations submitted explaining the content and any changes in existing regulations resulting from the regulations;
(4) a copy of the final assessment report and the summary prepared by the State Budget and Control Board pursuant to Section 1-23-115. A regulation that does not require an assessment report because it does not come within the definition of Section 1-23-10(4)(b), must include a statement to that effect. A regulation exempt pursuant to Section 1-23-115(D) from filing an assessment report must include an explanation of the exemption;
(5) a copy of the preliminary fiscal impact statement prepared by the agency as required in Section 1-23-110(b)(2).
(C) Upon receipt of the request, the President and Speaker reviewing the request shall submit it for consideration to the standing committees of the Senate and House which are most concerned with the function of the promulgating agency. A copy of the regulation or a synopsis of it must be given to each member of the committee. The committees to which regulations are referred have one hundred twenty days from the date regulations are submitted to the General Assembly to consider and take action on these regulations so referred and determine their actions on the regulations. However, if a regulation is referred to a committee and no action occurs in that committee on the regulation within sixty calendar days of receipt of the regulation by the appropriate committee, the regulation must be placed on the agenda of the full committee beginning with the next scheduled full committee meeting. Only those calendar days occurring during sessions of the General Assembly are included in computing the days elapsed.
(D) If a joint resolution to approve a regulation is not enacted within one hundred twenty days after submission the regulation is submitted to the General Assembly or if a joint resolution to disapprove a regulation has not been introduced by a standing committee to which the regulation was referred for review, the regulation is effective upon publication in the State Register. Upon introduction of the first joint resolution disapproving a regulation by a standing committee to which the regulation was referred for review, the one-hundred-twenty-day period for automatic approval is tolled. A regulation may not be filed under the emergency provisions of Section 1-23-130 if a joint resolution to disapprove the regulation has been introduced by a standing committee to which the regulation was referred. Upon a negative vote by either the Senate or House of Representatives on the resolution disapproving the regulation and the notification in writing of the negative vote to the Speaker of the House of Representatives and the President of the Senate by the clerk of the house in which the negative vote occurred, the remainder of the period begins to run. If the remainder of the period is less than ninety days, additional days must be added to the remainder to equal ninety days. The introduction of a joint resolution by the committee of either house does not prevent the introduction of a joint resolution by the committee of the other house to either approve or disapprove the regulations concerned. A joint resolution approving or disapproving a regulation must include:
(1) the synopsis of the regulation as provided for in subsection (B);
(2) a summary of the assessment report prepared by the State Budget and Control Board pursuant to section 1-23-115 or the statement or explanation as required in subsection (B).
(E) The one-hundred-twenty-day period of review begins on the date the regulation is filed with the President and Speaker. Sine die adjournment of the General Assembly tolls the running of the period of review, and the remainder of the period begins to run upon the next convening of the General Assembly excluding special sessions called by the Governor.
(F) Any member may introduce a joint resolution approving or disapproving a regulation or group of regulations thirty days following the date the regulations concerned are submitted to a standing committee for review and no committee joint resolution approving or disapproving the regulations has been introduced and the regulations concerned have not been withdrawn by the promulgating agency pursuant to Section 1-23-125, but the introduction does not toll the one-hundred-twenty-day period of automatic approval.
(G) General Assembly review is not required for regulations promulgated:
(1) to maintain compliance with federal law including, but not limited to, grant programs; however, the synopsis of the regulation required to be submitted by subsection (B) must include citations to federal law, if any, mandating the promulgation of or changes in the regulation justifying this exemption; Review also is not required for regulations promulgated
(2) by the state Board of Financial Institutions in order to authorize state-chartered banks, state-chartered savings and loan associations, and state-chartered credit unions to engage in activities that are authorized pursuant to Section 34-1-110.; Review is not required for regulations promulgated
(3) by the South Carolina Tax Commission to adopt regulations, revenue rulings, revenue procedures, and technical advice memoranda of the Internal Revenue Service so as to maintain conformity with the Internal Revenue Code of 1954.;
(4) as emergency regulations under Section 1-23-130.
All regulations submitted to the General Assembly for approval must have attached to them a brief synopsis or analysis of the regulations submitted explaining the content and any changes in existing regulations resulting from the regulations. The synopsis or analysis must include citations of federal law, if any, mandating changes in the regulations. The one-hundred-twenty-day period of review provided for in this section does not begin to run until the synopsis or analysis is attached to regulations submitted.
(H) Notwithstanding the provisions of this section, a regulation which is required to have an assessment report pursuant to Section 1-23-115 must be approved by joint resolution within one hundred twenty days of the filing of the regulation with the President of the Senate and the Speaker of the House or it is deemed disapproved. In calculating these days, the only tolling may occur pursuant to withdrawal of the regulation in accordance with Section 1-23-125, mutatis mutandis.
(I) For purposes of this section, only those calendar days occurring during a session of the General Assembly, excluding special sessions, are included in computing the days elapsed."
SECTION 6. Section 1-23-130 of the 1976 Code is amended to read:
"Section 1-23-130. (a)(A) If any an agency finds that an imminent peril to public health, safety, or welfare requires immediate promulgation of an emergency regulation prior to before compliance with the procedures prescribed in this article, or if a natural resources related agency finds that abnormal or unusual conditions, immediate need, or the state's best interest requires immediate promulgation of emergency regulations to protect or manage natural resources, the agency may file the regulation with the Legislative Council along with:
(1) the regulation;
(2) a statement of the situation requiring immediate promulgation and;
(3) the Governor's statement verifying the emergency if required by subsection (B) or a statement that no verification is needed.
The regulation shall become becomes effective as of the time of filing.
(B) However, if an emergency regulation comes within the definition of Section 1-23-10(4)(b), the Governor must agree that an emergency exists and a statement of the Governor verifying the emergency must be submitted with the regulation at the time of filing. The regulation is effective upon filing. Emergency regulations filed under this subsection may not be refiled under subsection (C) unless accompanied by a summary of the assessment report.
(C) If emergency regulations are promulgated either filed or expire while the General Assembly is in session, the emergency regulations shall remain in effect for ninety days only and may not be renewed under the provisions of this section refiled; but if emergency regulations are promulgated both filed and expire during a time when the General Assembly is not in session they may be renewable refiled for an additional ninety days if the General Assembly is not in regular session at the expiration of the ninety day period.
(b)(D) Emergency regulations and the agency statement as to the necessity of immediate promulgation must be published in the next issue of the State Register following the date of filing. A summary of the assessment report required for refiling emergency regulations pursuant to subsection (B) must also be published in the next issue of the State Register.
(c)(E) Any emergency regulations promulgated pursuant to this section may be permanently promulgated by complying with the requirements of this article."
SECTION 7. The amendments to Article 1, Chapter 23, Title 1, as contained in this act, apply to those regulations for which a notice of drafting pursuant to Section 1-23-110 is filed subsequent to this act's effective date.
SECTION 8. This act takes effect upon approval by the Governor.