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A104, R157, H3249
Sponsors: Reps. Scarborough, Umphlett and McLeod
Document Path: l:\council\bills\nbd\11135ac07.doc
Introduced in the House on January 16, 2007
Introduced in the Senate on March 8, 2007
Last Amended on June 7, 2007
Passed by the General Assembly on June 7, 2007
Governor's Action: June 18, 2007, Signed
Summary: Administrative Procedures Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 1/16/2007 House Introduced and read first time HJ-6 1/16/2007 House Referred to Committee on Judiciary HJ-7 1/17/2007 House Member(s) request name added as sponsor: Umphlett 2/28/2007 House Committee report: Favorable with amendment Judiciary HJ-21 3/1/2007 House Member(s) request name added as sponsor: McLeod 3/1/2007 Scrivener's error corrected 3/6/2007 House Amended HJ-23 3/6/2007 House Requests for debate-Rep(s). Rice, Bannister, Crawford, Simrill, Chalk, Bedingfield, Scarborough, Loftis, Shoopman, Leach, Kelly, Talley, Umphlett, Merrill, and Perry HJ-34 3/7/2007 House Read second time HJ-40 3/7/2007 House Roll call Yeas-101 Nays-0 HJ-45 3/8/2007 House Read third time and sent to Senate HJ-34 3/8/2007 Senate Introduced and read first time SJ-4 3/8/2007 Senate Referred to Committee on Judiciary SJ-4 3/12/2007 Senate Referred to Subcommittee: Moore (ch), Ford, Mescher, Rankin, Scott 5/23/2007 Senate Committee report: Favorable with amendment Judiciary SJ-56 5/24/2007 Scrivener's error corrected 5/24/2007 Senate Committee Amendment Adopted SJ-45 5/24/2007 Senate Read second time SJ-45 5/25/2007 Scrivener's error corrected 5/29/2007 Senate Read third time and returned to House with amendments SJ-35 5/31/2007 House Senate amendment amended HJ-39 5/31/2007 House Returned to Senate with amendments HJ-39 6/6/2007 Senate Non-concurrence in House amendment SJ-95 6/6/2007 House House insists upon amendment and conference committee appointed Reps. Scarborough, Hagood, and McLeod HJ-97 6/7/2007 Senate Conference committee appointed Rankin, Ford, and Scott SJ-61 6/7/2007 House Conference report received and adopted HJ-145 6/7/2007 Senate Conference report adopted SJ-62 6/7/2007 Senate Ordered enrolled for ratification SJ-72 6/12/2007 Ratified R 157 6/18/2007 Signed By Governor 6/20/2007 Copies available 6/20/2007 Effective date See Act for Effective Date 6/27/2007 Act No. 104
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VERSIONS OF THIS BILL
(A104, R157, H3249)
AN ACT TO AMEND SECTION 1-23-110, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO AGENCY PROCEDURES FOR PROMULGATING REGULATIONS, SO AS TO INCLUDE CERTAIN REQUIREMENTS PROVIDED FOR ELSEWHERE IN THE ADMINISTRATIVE PROCEDURES ACT; TO AMEND SECTION 1-23-120, AS AMENDED, RELATING TO GENERAL ASSEMBLY REVIEW OF REGULATIONS, SO AS TO REVISE PROCEDURES GOVERNING THIS REVIEW BY, AMONG OTHER THINGS, REQUIRING AGENCIES TO STRIKE THROUGH TEXT BEING DELETED FROM EXISTING REGULATIONS AND TO UNDERLINE TEXT BEING ADDED, REQUIRING LEGISLATIVE COUNCIL TO PROVIDE NOTICE TO ALL MEMBERS OF THE GENERAL ASSEMBLY WHEN REGULATIONS ARE SUBMITTED FOR REVIEW, DELETING THE PROVISIONS ESTABLISHING AUTOMATIC APPROVAL OF REGULATIONS AFTER ONE HUNDRED TWENTY DAYS, PROVIDING THAT A REGULATION IS DEEMED WITHDRAWN IF IT HAS NOT BECOME EFFECTIVE BY THE END OF THE TWO-YEAR LEGISLATIVE SESSION DURING WHICH THE REGULATION WAS SUBMITTED FOR REVIEW AND PROVIDING EXPEDITED PROCEDURES FOR SUBMITTING THE SAME REGULATION FOR LEGISLATIVE REVIEW IN THE NEXT SESSION; TO AMEND SECTION 1-23-125, RELATING TO THE APPROVAL, DISAPPROVAL, AND MODIFICATION OF REGULATIONS, SO AS TO DELETE PROVISIONS PROVIDED FOR ELSEWHERE IN THE ADMINISTRATIVE PROCEDURES ACT, TO DELETE PROVISIONS RELATING TO THE ONE-HUNDRED-TWENTY-DAY AUTOMATIC APPROVAL PROCEDURES, AND TO AUTHORIZE, RATHER THAN PROHIBIT, AN AGENCY TO WITHDRAW REGULATIONS UNDER GENERAL ASSEMBLY REVIEW ANYTIME AND TO PROVIDE EXPEDITED PROCEDURES FOR RESUBMISSION OF SUCH WITHDRAWN REGULATIONS; AND TO AMEND SECTION 1-23-270, RELATING TO SMALL BUSINESS REGULATORY FLEXIBILITY, SO AS TO RESTATE THE FIVE-YEAR AGENCY REVIEW REQUIREMENT.
Be it enacted by the General Assembly of the State of South Carolina:
Procedures for promulgating regulations
SECTION 1. Section 1-23-110(C) of the 1976 Code is amended to read:
"(C)(1) The agency shall consider fully all written and oral submissions respecting the proposed regulation.
(2) Following the public hearing and consideration of all submissions, an agency must not submit a regulation to the General Assembly for review if the regulation contains a substantive change in the content of regulation as proposed pursuant to subsection (A)(3) and the substantive change was not raised, considered, or discussed by public comment received pursuant to this section. The agency shall refile such a regulation for publication in the State Register as a proposed regulation pursuant to subsection (A)(3)."
General Assembly review of regulations
SECTION 2. Section 1-23-120 of the 1976 Code, as last amended by Act 231 of 2004, is further amended to read:
"Section 1-23-120. (A) All regulations except those specifically exempted pursuant to subsection (H) must be filed with Legislative Council for submission to the General Assembly for review in accordance with this article; however, a regulation must not be filed with Legislative Council for submission to the General Assembly more than one year after publication of the drafting notice initiating the regulation pursuant to Section 1-23-110, except those regulations requiring a final assessment report as provided in Sections 1-23-270 and 1-23-280.
(B) To initiate the process of review, the agency shall file with the Legislative Council for submission to the President of the Senate and the Speaker of the House of Representatives a document containing:
(1) a copy of the regulations promulgated;
(2) in the case of regulations proposing to amend an existing regulation or any clearly identifiable subdivision or portion of a regulation, the full text of the existing regulation or the text of the identifiable portion of the regulation; text that is proposed to be deleted must be stricken through, and text that is proposed to be added must be underlined;
(3) a request for review;
(4) a brief synopsis of the regulations submitted which explains the content and any changes in existing regulations resulting from the submitted regulations;
(5) a copy of the final assessment report and the summary of the final report prepared by the division pursuant to Section 1-23-115. A regulation that does not require an assessment report because the regulation does not have a substantial economic impact must include a statement to that effect. A regulation exempt from filing an assessment report pursuant to Section 1-23-115(E) must include an explanation of the exemption;
(6) a copy of the fiscal impact statement prepared by the agency as required by Section 1-23-110;
(7) a detailed statement of rationale which states the basis for the regulation, including the scientific or technical basis, if any, and identifies any studies, reports, policies, or statements of professional judgment or administrative need relied upon in developing the regulation;
(8) a copy of the economic impact statement, as provided in Section 1-23-270(C)(1)(a); and
(9) a copy of the regulatory flexibility analysis, as provided in Section 1-23-270(C)(1)(b).
(C) Upon receipt of the regulation, the President and Speaker shall refer the regulation for review 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 the regulation must be given to each member of the committee, and Legislative Council shall notify all members of the General Assembly when regulations are submitted for review either through electronic means or by addition of this information to the website maintained by Legislative Printing Information and Technology Services, or both. 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. 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, the regulation must be placed on the agenda of the full committee beginning with the next scheduled full committee meeting.
(D) If a joint resolution to approve a regulation is not enacted within one hundred twenty days after 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 required by subsection (B)(4);
(2) the summary of the final assessment report prepared by the division pursuant to Section 1-23-115 or, as required by subsection (B)(5), the statement or explanation that an assessment report is not required or is exempt.
(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 of the General Assembly may introduce a joint resolution approving or disapproving a regulation thirty days following the date the regulations concerned are referred 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) A regulation is deemed withdrawn if it has not become effective, as provided in this article, by the date of publication of the next State Register published after the end of the two-year session in which the regulation was submitted to the President and Speaker for review. Other provisions of this article notwithstanding, a regulation deemed withdrawn pursuant to this subsection may be resubmitted by the agency for legislative review during the next legislative session without repeating the requirements of Section 1-23-110, 1-23-111, or 1-23-115 if the resubmitted regulation contains no substantive changes for the previously submitted version.
(H) 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)(4) must include citations to federal law, if any, mandating the promulgation of or changes in the regulation justifying this exemption;
(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;
(3) by the South Carolina Department of Revenue 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 as defined in Section 12-6-40;
(4) as emergency regulations under Section 1-23-130.
(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.
(J) Each state agency, which promulgates regulations or to which the responsibility for administering regulations has been transferred, shall by July 1, 1997, and every five years thereafter, conduct a formal review of all regulations which it has promulgated or for which it has been transferred the responsibility of administering, except that those regulations described in subsection (H) are not subject to this review. Upon completion of the review, the agency shall submit to the Code Commissioner a report which identifies those regulations:
(1) for which the agency intends to begin the process of repeal in accordance with this article;
(2) for which the agency intends to begin the process of amendment in accordance with this article; and
(3) which do not require repeal or amendment.
Nothing in this subsection may be construed to prevent an agency from repealing or amending a regulation in accordance with this article before or after it is identified in the report to the Code Commissioner."
Approval, disapproval, and modification of regulations
SECTION 3. Section 1-23-125 of the 1976 Code is amended to read:
"Section 1-23-125. (A) The legislative committee to which a regulation is submitted is not authorized to amend a particular regulation and then introduce a joint resolution approving the regulation as amended; however, this provision does not prevent the introduction of a resolution disapproving one or more of a group of regulations submitted to the committee and approving others submitted at the same time or deleting a clearly separable portion of a single regulation and approving the balance of the regulation in the committee resolution.
(B) If a majority of a committee determines that it cannot approve a regulation in the form submitted, it shall notify the promulgating agency in writing along with its recommendations as to changes that would be necessary to obtain committee approval. The agency may:
(1) withdraw the regulation from the General Assembly and resubmit it with the recommended changes to the Speaker and the Lieutenant Governor, but any regulation not resubmitted within thirty days is considered permanently withdrawn;
(2) withdraw the regulation permanently;
(3) take no action and abide by whatever action is taken or not taken by the General Assembly on the regulation concerned.
(C) The notification tolls the one-hundred-twenty-day period for automatic approval, and when an agency withdraws regulations from the General Assembly prior to the time a committee resolution to approve or disapprove the regulation has been introduced, the remainder of the period begins to run only on the date the regulations are resubmitted to the General Assembly. Upon resubmission of the regulations, additional days must be added to the days remaining in the review period for automatic approval, if less than twenty days, to equal twenty days, and a copy of the amended regulation must be given to each member of the committee. If an agency decides to take no action pursuant to subsection (B)(3), it shall notify the committee in writing and the remainder of the period begins to run only upon this notification.
(D) This section, as it applies to approval, disapproval, or modification of regulations, does not apply to joint resolutions introduced by other than the committees to which regulations are initially referred by the Lieutenant Governor or the Speaker of the House of Representatives.
(E) A regulation submitted to the General Assembly for review may be withdrawn by the agency for any reason. The regulation may be resubmitted by the agency for legislative review during the legislative session without repeating the requirements of Section 1-23-110, 1-23-111, or 1-23-115 if the resubmitted regulation contains no substantive changes from the previously submitted version."
Small business regulatory flexibility
SECTION 4. Section 1-23-270(F)(1) of the 1976 Code, as added by Act 231 of 2004, is amended to read:
"(1) Each state agency, which promulgates regulations or to which the responsibility for administering regulations has been transferred, shall by July 1, 1997, and every five years thereafter, conduct a formal review of all regulations which it has promulgated or for which it has been transferred the responsibility of administering, except that those regulations described in Section 1-23-120(H) are not subject to this review. Upon completion of the review, the agency shall submit to the Code Commissioner a report which identifies those regulations:
(a) for which the agency intends to begin the process of repeal in accordance with this article;
(b) for which the agency intends to begin the process of amendment in accordance with this article; and
(c) which do not require repeal or amendment.
Nothing in this subsection may be construed to prevent an agency from repealing or amending a regulation in accordance with Article 1 before or after it is identified in the report to the Code Commissioner."
SECTION 5. This act takes effect July 1, 2008, and applies to regulations for which a notice of a public hearing has been published in the State Register, in accordance with Section 1-23-110(A)(3) of the 1976 Code, after June 30, 2008; all other regulations under General Assembly review on this act's effective date must be processed and reviewed in accordance with the law in effect on June 30, 2008.
Ratified the 12th day of June, 2007.
Approved the 18th day of June, 2007.
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