S 264 Session 111 (1995-1996)
S 0264 General Bill, By H.S.Stilwell, Jackson, Moore and M.T.Rose
A Bill to amend the Code of Laws of South Carolina relating to the
Restructuring Act to change the placement of statutory authority and to direct
the Code Commissioner to change certain references to conform with the
provisions of this Act. View full text
11/14/94 Senate Prefiled
11/14/94 Senate Referred to Committee on Judiciary
01/10/95 Senate Introduced and read first time SJ-90
01/10/95 Senate Referred to Committee on Judiciary SJ-90
04/18/95 Senate Committee report: Favorable with amendment
Judiciary SJ-28
04/20/95 Senate Amended SJ-24
04/20/95 Senate Read second time SJ-77
04/20/95 Senate Ordered to third reading with notice of
amendments SJ-77
04/26/95 Senate Read third time and sent to House SJ-14
04/26/95 House Introduced and read first time HJ-77
04/26/95 House Referred to Committee on Judiciary HJ-101
05/18/95 House Committee report: Favorable with amendment
Judiciary HJ-73
05/24/95 House Debate adjourned until Thursday, May 25, 1995 HJ-36
05/25/95 House Recommitted to Committee on Judiciary HJ-41
05/30/95 House Recalled from Committee on Judiciary HJ-17
05/31/95 House Debate adjourned HJ-20
05/31/95 House Amended HJ-139
05/31/95 House Read second time HJ-140
06/01/95 House Objection by Rep. Rice, Sandifer, Cain, Cooper,
Fulmer, Meacham, Seithel, Fleming, & Witherspoon HJ-33
06/01/95 House Debate adjourned until Thursday, January 11,
1996 HJ-38
06/01/95 House Reconsider vote whereby debate adjourned until
Thursday, January 11, 1996 HJ-97
06/01/95 House Read third time and returned to Senate with
amendments HJ-121
06/01/95 Senate House amendment amended SJ-53
06/01/95 Senate Returned to House with amendments SJ-53
06/01/95 House Non-concurrence in Senate amendment HJ-123
06/01/95 Senate Senate insists upon amendment and conference
committee appointed Sens. Moore, Stilwell,
Jackson SJ-392
06/01/95 House Conference committee appointed Reps. Harrison,
Hodges & Huff
Indicates Matter Stricken
Indicates New Matter
HOUSE AMENDMENTS AMENDED
June 1, 1995
S. 264
Introduced by SENATORS Stilwell, Moore, Rose and
Jackson
S. Printed 6/1/95--S.
Read the first time January 10, 1995.
A BILL
TO AMEND SECTION 1-3-220, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO THE GOVERNOR FILLING
VACANCIES IN AN OFFICE OF THE EXECUTIVE
DEPARTMENT BY APPOINTMENT UNDER CERTAIN
CONDITIONS, SO AS TO EXCLUDE THE OFFICE OF
LIEUTENANT GOVERNOR BECAUSE THE MANNER IN
WHICH VACANCIES IN THIS OFFICE ARE FILLED ARE
PROVIDED FOR IN OTHER PROVISIONS OF LAW; SECTION
1-3-240, AS AMENDED, RELATING TO THE REMOVAL OF
STATE AND COUNTY OFFICERS, BY THE GOVERNOR, SO
AS TO REVISE A REFERENCE TO THE DEPARTMENT OF
REVENUE AND TAXATION AND ITS COMMISSION;
SECTION 1-7-920, RELATING TO THE COMMISSION ON
PROSECUTION COORDINATION, SO AS TO CORRECT A
REFERENCE TO A REPRESENTATIVE ON THE
COMMISSION FROM THE DEPARTMENT OF PUBLIC
SAFETY; SECTION 1-7-940, RELATING TO THE DUTIES OF
THE COMMISSION ON PROSECUTION COORDINATION, SO
AS TO REQUIRE THE COMMISSION TO PROVIDE TRAINING
FOR VICTIM/WITNESS ASSISTANCE UNITS WITHIN THE
SOLICITORS' OFFICES; SECTION 1-11-310, AS AMENDED,
RELATING TO THE DIVISION OF MOTOR VEHICLE
MANAGEMENT OF THE STATE BUDGET AND CONTROL
BOARD, SO AS TO CONFORM REFERENCES TO THE
RESTRUCTURING ACT; SECTION 1-19-60, RELATING TO
THE COMPOSITION OF THE STATE DEVELOPMENT
BOARD, SO AS TO PROVIDE THAT ONE OF THE
GUBERNATORIAL APPOINTEES MAY BE THE DIRECTOR
OF THE DEPARTMENT OF COMMERCE OR HIS DESIGNEE
RATHER THAN A MEMBER OF THE STATE DEVELOPMENT
BOARD; SECTION 1-23-10, RELATING TO DEFINITIONS
UNDER THE STATE REGISTER AND CODE OF
REGULATIONS, SO AS TO PROVIDE THAT THE DEFINITION
OF "REGULATION" DOES NOT INCLUDE RULES
OF THE DEPARTMENT OF PROBATION, PAROLE AND
PARDON SERVICES; SECTION 1-23-111, RELATING TO THE
PROCESS FOR PROMULGATING REGULATIONS, SO AS TO
AUTHORIZE THE CHAIRMAN OF THE BOARD OF A
DEPARTMENT TO DESIGNATE A MEMBER OF THE BOARD
TO PRESIDE DURING SUCH HEARINGS; SECTION 1-23-600,
AS AMENDED, RELATING TO HEARINGS AND
PROCEDURES UNDER THE ADMINISTRATIVE LAW JUDGE
DIVISION, SO AS TO PROVIDE THAT ALL DECISIONS OF
THE DEPARTMENT OF REVENUE MUST BE MADE PUBLIC
EXCEPT WHERE REDACTED COPIES ARE WARRANTED
AND TO CLARIFY THE TYPES OF HEARINGS OVER WHICH
ADMINISTRATIVE LAW JUDGES SHALL PRESIDE; SECTION
1-30-10, RELATING TO THE DEPARTMENTS OF THE
EXECUTIVE BRANCH OF STATE GOVERNMENT, SO AS TO
CORRECT A REFERENCE TO THE DEPARTMENT OF
PROBATION, PAROLE AND PARDON SERVICES; SECTION
1-30-25, RELATING TO THE DEPARTMENT OF COMMERCE,
SO AS TO CHANGE THE NAME OF THE DIVISION OF
AERONAUTICS TO THE STATE AVIATION
ADMINISTRATION; SECTION 1-30-35, RELATING TO THE
DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS, SO
AS TO CORRECT CERTAIN CITATIONS TO PROVISIONS OF
THE 1976 CODE CONTAINED IN THIS SECTION; SECTION
1-30-85, RELATING TO THE DEPARTMENT OF PROBATION,
PARDON AND PAROLE, SO AS TO CORRECT THE NAME OF
THE DEPARTMENT TO THE DEPARTMENT OF PROBATION,
PAROLE AND PARDON SERVICES; TO AMEND SECTION
2-7-73, AS AMENDED, RELATING TO LEGISLATIVE
ENACTMENTS AND THE REQUIREMENT THAT BILLS AND
RESOLUTIONS MANDATING HEALTH INSURANCE
COVERAGE MUST HAVE FISCAL IMPACT STATEMENTS,
SO AS TO DELETE CERTAIN LANGUAGE WHICH
PREVIOUSLY REFERRED TO THE FORMER "CHIEF
INSURANCE COMMISSIONER"; SECTION 2-13-190, AS
AMENDED, RELATING TO THE DISTRIBUTION OF THE
ANNUAL ACTS AND JOINT RESOLUTIONS OF THE
GENERAL ASSEMBLY, SO AS TO CORRECT THE
REFERENCES TO CERTAIN OFFICIALS TO WHOM THESE
ACTS AND JOINT RESOLUTIONS ARE PROVIDED AND TO
FURTHER PROVIDE FOR THEIR DISTRIBUTION; SECTION
2-13-240, AS AMENDED, RELATING TO THE DISTRIBUTION
OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, SO
AS TO CORRECT THE REFERENCES TO CERTAIN
OFFICIALS TO WHOM THESE CODES ARE PROVIDED AND
TO FURTHER PROVIDE FOR THEIR DISTRIBUTION;
SECTION 2-19-10, RELATING TO THE JOINT COMMITTEE
TO REVIEW CANDIDATES FOR OFFICES ELECTED BY THE
GENERAL ASSEMBLY, SO AS TO REFER TO AN
EXCEPTION CONTAINED IN THE RESTRUCTURING ACT
PERTAINING TO THE ELECTION OF MEMBERS OF THE
PUBLIC SERVICE COMMISSION; SECTION 4-10-25, AS
AMENDED, RELATING TO THE EXEMPTION OF GROSS
PROCEEDS OF SALES OF TANGIBLE PERSONAL PROPERTY
FROM THE LOCAL SALES AND USE TAX, SO AS TO
CHANGE REFERENCES TO CONFORM TO THE
RESTRUCTURING ACT; SECTION 4-10-60, AS AMENDED,
RELATING TO THE WITHHOLDINGS FROM THE AMOUNT
OF SALES AND USE TAX COLLECTED BY COUNTIES, SO
AS TO CHANGE REFERENCES TO CONFORM TO THE
RESTRUCTURING ACT; SECTION 4-10-65, RELATING TO
THE DISTRIBUTION OF UNIDENTIFIED LOCAL SALES AND
TAX REVENUES, SO AS TO CHANGE A REFERENCE TO
TAX COMMISSION TO CONFORM TO THE
RESTRUCTURING ACT; SECTION 4-10-80, AS AMENDED,
RELATING TO REPORTS OF THE TOTAL AMOUNT OF
REVENUE COLLECTED FROM THE LOCAL SALES AND USE
TAX, SO AS TO CHANGE REFERENCES TO CONFORM TO
THE RESTRUCTURING ACT; SECTION 4-10-90, AS
AMENDED, RELATING TO ADMINISTRATION OF THE
LOCAL SALES AND USE TAX BY THE DEPARTMENT OF
REVENUE, SO AS TO CHANGE REFERENCES TO CONFORM
TO THE RESTRUCTURING ACT; SECTION 4-29-67, AS
AMENDED, RELATING TO THE FEE REQUIRED IN LIEU OF
TAXES FOR INDUSTRIAL DEVELOPMENT PROJECTS, SO
AS TO CHANGE REFERENCES TO CONFORM TO THE
RESTRUCTURING ACT; SECTION 4-29-69, RELATING TO
THE FEE IN LIEU OF PROPERTY TAXES ALLOWED
CERTAIN INDUSTRIAL DEVELOPMENT PROJECTS, SO AS
TO CONFORM REFERENCES TO THE RESTRUCTURING
ACT; SECTION 6-19-30, RELATING TO AN ADVISORY
COMMITTEE FOR STATE WATER AND SEWER AUTHORITY
GRANTS, SO AS TO REVISE THE TITLE OF THE
ADMINISTRATIVE HEAD OF THE DEPARTMENT OF
HEALTH AND ENVIRONMENTAL CONTROL AND TO
DELETE OBSOLETE LANGUAGE; SECTION 9-1-1535,
RELATING TO RETIREMENT OF WILDLIFE
CONSERVATION OFFICERS, SO AS TO REVISE THE NAMES
OF THE OFFICERS, THE LAW ENFORCEMENT SECTION,
AND THE WILDLIFE AND MARINE RESOURCES
DEPARTMENT; SECTION 10-1-100, RELATING TO
REQUIREMENTS IN STATE CONTRACTS FOR APPLICABLE
POLLUTION PREVENTION AND NATURAL RESOURCE
PROTECTION REQUIREMENTS, SO AS TO CONFORM A
REFERENCE TO THE HIGHWAY DEPARTMENT TO THE
RESTRUCTURING ACT; SECTION 11-9-825, AS AMENDED,
RELATING TO ADDITIONAL STAFF FOR THE BOARD OF
ECONOMIC ADVISORS, SO AS TO CONFORM THE
REFERENCE TO THE CHAIRMAN OF THE DEPARTMENT OF
REVENUE TO THE PROVISIONS OF THE RESTRUCTURING
ACT EFFECTIVE FEBRUARY 1, 1995; SECTION 11-35-1520,
AS AMENDED, RELATING TO COMPETITIVE SEALED BIDS,
SO AS TO CHANGE THE NAME OF THE DIVISION OF
AERONAUTICS TO THE STATE AVIATION
ADMINISTRATION; SECTION 12-4-15, RELATING TO THE
DIVISIONS OF THE DEPARTMENT OF REVENUE, SO AS TO
DELETE THE STATUTORY DIVISIONS; SECTION 12-4-30, AS
AMENDED, RELATING TO THE COMMISSIONERS OF THE
DEPARTMENT OF REVENUE, SO AS TO PROVIDE
REQUIREMENTS FOR THE DEPARTMENT'S DIRECTOR; TO
AMEND SECTIONS 12-4-40, 12-4-50, 12-4-60, AND 12-4-70, AS
AMENDED, RELATING TO THE TAX COMMISSION, SO AS
TO REVISE REFERENCES TO THE COMMISSIONER AND
COMMISSION; SECTION 12-4-340, AS AMENDED, RELATING
TO THE AUTHORITY OF THE DEPARTMENT OF REVENUE
TO CONTRACT WITH A COLLECTION AGENCY TO
COLLECT DELINQUENT TAXES, SO AS TO CONFORM A
REFERENCE TO THE RESTRUCTURING ACT; SECTION
12-4-760, RELATING TO APPEALS FROM THE TAX
COMMISSION TO THE TAX BOARD OF REVIEW, SO AS TO
CHANGE REFERENCES OF THE TAX COMMISSION TO THE
ADMINISTRATIVE LAW JUDGE DIVISION AND CHANGE
REFERENCES TO THE TAX BOARD OF REVIEW TO THE
CIRCUIT COURT; SECTION 12-21-2423, AS AMENDED,
RELATING TO THE TEMPORARY DEDICATION OF A
PORTION OF ADMISSIONS TAX REVENUES TO THE
DEVELOPMENT OF MAJOR TOURISM OR RECREATION
FACILITY, SO AS TO CONFORM REFERENCES TO VARIOUS
STATE AGENCIES TO THE RESTRUCTURING ACT AND TO
DELETE ADVISORY FROM THE NAME OF THE ADVISORY
COORDINATING COUNCIL FOR ECONOMIC DEVELOPMENT
OF THE DEPARTMENT OF COMMERCE; SECTION
12-21-2720, AS AMENDED, RELATING TO FEES FOR
COIN-OPERATED MACHINES AND DEVICES, SO AS TO
CONFORM REFERENCES TO TAX COMMISSION TO THE
RESTRUCTURING ACT; SECTION 12-21-2738, AS AMENDED,
RELATING TO THE PENALTIES FOR VIOLATION OF THE
COIN-OPERATED DEVICE LICENSING LAWS, SO AS TO
CONFORM A REFERENCE TO THE RESTRUCTURING ACT;
ARTICLE 20, CHAPTER 21, TITLE 12, THE VIDEO GAME
MACHINES ACT, SO AS TO CONFORM REFERENCES IN
THE ARTICLE TO THE SOUTH CAROLINA TAX
COMMISSION TO THE PROVISIONS OF THE
RESTRUCTURING ACT; SECTIONS 12-21-5020, 12-21-5030,
12-21-5040, 12-21-6010, 12-21-6040, AND 12-21-6050,
RELATING TO THE MARIJUANA AND CONTROLLED
SUBSTANCE TAX ACT, SO AS TO CHANGE REFERENCES
TO THE TAX COMMISSION TO CONFORM TO THE
RESTRUCTURING ACT; SECTION 12-27-390, AS AMENDED,
RELATING TO THE DISTRIBUTION TO COUNTIES OF A
PORTION OF GASOLINE TAXES THROUGH THE WATER
RECREATIONAL RESOURCES FUND, SO AS TO CHANGE
REFERENCES TO THE DEPARTMENT OF WILDLIFE AND
MARINE RESOURCES TO THE PROVISIONS OF THE
RESTRUCTURING ACT EFFECTIVE JULY 1, 1994; SECTION
12-27-400, AS AMENDED, RELATING TO THE USE OF
"C" FUNDS, SO AS TO CONFORM REFERENCES
TO STATE AGENCIES TO THE RESTRUCTURING ACT;
SECTION 12-27-1270, AS AMENDED, RELATING TO THE
PORTION OF THE SHIMS GASOLINE TAX REVENUES SET
ASIDE IN THE ECONOMIC DEVELOPMENT ACCOUNT, SO
AS TO CONFORM THE REFERENCE TO THE
COORDINATING COUNCIL FOR ECONOMIC DEVELOPMENT
TO THE APPROPRIATE DIVISION OF THE DEPARTMENT OF
COMMERCE AND TO DELETE AN OBSOLETE PROVISION;
SECTION 12-36-1710, AS AMENDED, RELATING TO THE
ECONOMIC DEVELOPMENT ACCOUNT, SO AS TO REVISE
THE REFERENCE TO THE DEPARTMENT OF REVENUE AND
TAXATION AND CHANGE THE NAME OF THE DIVISION OF
AERONAUTICS TO THE STATE AVIATION
ADMINISTRATION; SECTION 12-36-2570, AS AMENDED,
RELATING TO THE TIME OF PAYMENT OF SALES AND
USE TAX, SO AS TO CONFORM REFERENCES TO THE
RESTRUCTURING ACT; SECTION 12-36-2610, AS AMENDED,
RELATING TO THE DISCOUNT ALLOWED FOR TIMELY
PAYMENT OF THE SALES TAX, SO AS TO CONFORM
REFERENCE TO THE TAX COMMISSION TO THE
RESTRUCTURING ACT; SECTION 12-37-930, AS AMENDED,
RELATING TO VALUATION OF PROPERTY AND THE
DEPRECIATION SCHEDULE FOR MANUFACTURING
MACHINERY FOR PURPOSES OF AD VALOREM TAXATION,
SO AS TO CHANGE REFERENCES TO CONFORM TO THE
RESTRUCTURING ACT; SECTION 12-37-2680, AS AMENDED,
RELATING TO THE DETERMINATION OF ASSESSED
VALUE OF A VEHICLE, SO AS TO PROVIDE THAT AN
APPEAL MUST BE MADE TO THE ADMINISTRATIVE LAW
JUDGE DIVISION WITHIN THIRTY DAYS OF THE BOARD'S
DECISION AND TO FURTHER PROVIDE THAT APPEALS
ARE CONFINED TO THE RECORD; SECTION 12-43-300, AS
AMENDED, RELATING TO BOARD OF ASSESSMENT
APPEALS, SO AS TO PROVIDE THAT ANY PROPERTY
OWNER, HIS AGENT, OR THE ASSESSOR MAY APPEAL
FROM THE FINDING OF THE BOARD UPON WRITTEN
NOTICE TO THE ADMINISTRATIVE LAW JUDGE DIVISION
WITHIN THIRTY DAYS FROM THE DATE OF THE BOARD'S
FINDING AND TO FURTHER PROVIDE THAT APPEALS ARE
CONFINED TO THE RECORD; SECTION 12-53-220, AS
AMENDED, RELATING TO TAX COLLECTION AND
POSTING OF BONDS FOR JEOPARDY ASSESSMENTS, SO AS
TO CORRECTLY SET FORTH THE NAME OF THE
DEPARTMENT OF INSURANCE OF SOUTH CAROLINA;
SECTION 13-1-10, RELATING TO THE DEPARTMENT OF
COMMERCE, SO AS TO CHANGE THE DIVISION NAMES
FROM DIVISION OF AERONAUTICS TO STATE AVIATION
ADMINISTRATION AND FROM ADVISORY COORDINATING
COUNCIL FOR ECONOMIC DEVELOPMENT TO
COORDINATING COUNCIL FOR ECONOMIC
DEVELOPMENT; ARTICLE 7, CHAPTER 1 OF TITLE 13,
RELATING TO THE DIVISION OF AVIATION, SO AS TO
CHANGE THE NAME OF THE DIVISION OF AERONAUTICS
TO THE STATE AVIATION ADMINISTRATION; ARTICLE 11
OF CHAPTER 1 OF TITLE 13, AS AMENDED, RELATING TO
THE ADVISORY COORDINATING COUNCIL FOR ECONOMIC
DEVELOPMENT, SO AS TO DELETE ADVISORY FROM THE
NAME OF THE ADVISORY COORDINATING COUNCIL FOR
ECONOMIC DEVELOPMENT OF THE DEPARTMENT OF
COMMERCE; SECTION 13-17-40, AS AMENDED, RELATING
TO THE BOARD OF THE SOUTH CAROLINA RESEARCH
AUTHORITY, SO AS TO CORRECT A REFERENCE TO THE
FORMER CHAIRMAN OF THE STATE DEVELOPMENT
BOARD; SECTION 15-9-410, AS AMENDED, RELATING TO
PROVISIONS CONCERNING NONRESIDENT AIRCRAFT
OPERATORS, SO AS TO CHANGE THE NAME OF THE
DIVISION OF AERONAUTICS TO THE STATE
AERONAUTICS ADMINISTRATION; SECTION 16-3-1120, AS
AMENDED, RELATING TO THE DIRECTOR OF THE
VICTIM'S COMPENSATION FUND, SO AS TO PROVIDE
THAT THE DIRECTOR, AFTER CONSULTATION WITH THE
CRIME VICTIM'S ADVISORY BOARD, MUST DEVELOP AND
ADMINISTER A PLAN FOR INFORMING THE PUBLIC OF
THE AVAILABLE BENEFITS; SECTION 16-3-1130, AS
AMENDED, RELATING TO CLAIMS UNDER THE VICTIM'S
COMPENSATION FUND, SO AS TO CHANGE REFERENCES
OF DEPUTY DIRECTOR TO DIRECTOR; SECTION 16-3-1140,
AS AMENDED, RELATING TO APPEALS UNDER THE
VICTIM'S COMPENSATION FUND, SO AS TO CHANGE
REFERENCES OF DEPUTY DIRECTOR TO DIRECTOR;
SECTION 16-3-1150, AS AMENDED, RELATING TO
EMERGENCY AWARDS UNDER THE VICTIM'S
COMPENSATION FUND, SO AS TO CHANGE REFERENCES
OF DEPUTY DIRECTOR TO DIRECTOR; SECTION 16-3-1200,
RELATING TO THE VICTIM'S COMPENSATION FUND AND
THE CONDUCT OF A VICTIM OR INTERVENOR
CONTRIBUTING TO INFLICTION OF INJURY, SO AS TO
CHANGE REFERENCES OF DEPUTY DIRECTOR TO
DIRECTOR; SECTION 16-3-1230, RELATING TO CLAIMS
FILED IN BEHALF OF A MINOR OR INCOMPETENT UNDER
THE VICTIM'S COMPENSATION FUND, SO AS TO CHANGE
REFERENCES OF DEPUTY DIRECTOR TO DIRECTOR;
SECTION 16-3-1260, RELATING TO REIMBURSEMENT FOR
PAYMENT FROM THE VICTIM'S COMPENSATION FUND, SO
AS TO CHANGE THE NAME OF CERTAIN DEPARTMENTS;
SECTION 16-3-1300, AS AMENDED, RELATING TO
PAYMENT OF AN AWARD UNDER THE VICTIM'S
COMPENSATION FUND, SO AS TO CHANGE REFERENCES
OF DEPUTY DIRECTOR TO DIRECTOR; SECTION 16-3-1340,
AS AMENDED, RELATING TO THE ATTORNEY FOR A
CLAIMANT UNDER THE VICTIM'S COMPENSATION FUND,
SO AS TO DELETE THE PROVISION REQUIRING
ATTORNEYS OF THE WORKERS' COMPENSATION FUND
TO REPRESENT THE VICTIM'S COMPENSATION FUND;
SECTION 16-3-1410, RELATING TO THE RESPONSIBILITIES
OF THE VICTIM'S COMPENSATION FUND RELATING TO
THE VICTIM/WITNESS ASSISTANCE PROGRAM, SO AS TO
DELETE THE REQUIREMENT THAT THE FUND PROVIDE
TRAINING FOR THE SOLICITORS' OFFICES; SECTION
16-3-1550, AS AMENDED, RELATING TO VICTIM IMPACT
STATEMENTS, SO AS TO EXTEND THE PROVISIONS OF
THE SECTION TO FAMILY COURT IN CONJUNCTION WITH
THE PROSECUTION OF JUVENILE OFFENDERS, TO
REQUIRE THE EXECUTIVE DIRECTOR OF THE
COMMISSION ON PROSECUTION COORDINATION TO
DEVELOP THE FORM RATHER THAN THE ATTORNEY
GENERAL, AND TO CORRECT THE NAME OF THE BOARD
OF PAROLE AND COMMUNITY CORRECTIONS; SECTION
17-17-100, RELATING TO THE TRANSFER OF WRIT OF
HABEAS CORPUS PETITIONS TO THE COURT IN THE
COUNTY WHERE THE PRISONER IS LOCATED, SO AS TO
CHANGE THE NAME OF THE BOARD OF CORRECTIONS;
SECTION 17-22-120, AS AMENDED, RELATING TO
INDIVIDUAL INTERVENTION AGREEMENTS ENTERED
INTO BY A DEFENDANT AND THE SOLICITOR IN A
PRETRIAL INTERVENTION PROGRAM, SO AS TO
CONFORM A REFERENCE TO THE COMMISSION ON
ALCOHOL AND DRUG ABUSE TO THE RESTRUCTURING
ACT; SECTION 17-25-80, RELATING TO THE AUTHORITY
OF THE COMMISSIONER OF THE DEPARTMENT OF
CORRECTIONS REGARDING HARD LABOR, SO AS TO
CHANGE THE NAME OF THE COMMISSIONER; SECTION
17-25-145, RELATING TO IMPLEMENTATION OF
COMMUNITY PENALTIES PROGRAM, SO AS TO CHANGE
THE NAME OF THE DEPARTMENT OF PAROLE AND
COMMUNITY CORRECTIONS; SECTION 17-25-370,
RELATING TO EXECUTION OF DEATH SENTENCE, SO AS
TO CHANGE THE NAME OF THE COMMISSIONER OF THE
DEPARTMENT OF CORRECTIONS; SECTION 17-25-380,
RELATING TO COPIES AND FORM OF NOTICE OF DEATH
PENALTY, SO AS TO CHANGE THE NAME OF THE
COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS;
SECTION 17-25-400, RELATING TO SERVICE OF NOTICE ON
PRISONER, SO AS TO CHANGE THE NAME OF THE
COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS;
SECTION 20-7-640, RELATING TO THE DUTIES OF THE
DEPARTMENT OF SOCIAL SERVICES, SO AS TO DELETE
THE REQUIREMENT THAT THE COUNTY BOARD APPOINT
AN ADVISORY COMMITTEE; SECTION 20-7-690, AS
AMENDED, RELATING TO CONFIDENTIALITY OF
DEPARTMENT OF SOCIAL SERVICES RECORDS, SO AS TO
REVISE THE NAME OF THE ADMINISTRATIVE HEAD OF
THE DEPARTMENT; SECTION 20-7-2020, RELATING TO
APPROVAL OF AGREEMENTS UNDER THE INTERSTATE
COMPACT ON THE PLACEMENT OF CHILDREN, SO AS TO
REVISE THE TITLE OF THE ADMINISTRATIVE HEAD OF
THE DEPARTMENT OF SOCIAL SERVICES; SECTION
20-7-2340, RELATING TO ADOPTION FEES ESTABLISHED
BY THE DEPARTMENT OF SOCIAL SERVICES, SO AS TO
REVISE THE AUTHORITY TO ESTABLISH THESE FEES;
SECTION 20-7-2379, AS AMENDED, RELATING TO THE
DIVISION FOR REVIEW OF FOSTER CARE OF CHILDREN,
SO AS TO DELETE THE INAPPLICABLE PROVISION FOR
THE DIVISION DIRECTOR'S SALARY; SECTION 20-7-2640,
AS AMENDED, RELATING TO THE INTERSTATE COMPACT
FOR ADOPTION AND MEDICAL ASSISTANCE, MEDICAL
ASSISTANCE IDENTIFICATION, BENEFITS, AND
EXCEPTIONS, SO AS TO CLARIFY THAT DEPARTMENT AS
USED IN SUBSECTION (C) MEANS THE DEPARTMENT OF
SOCIAL SERVICES; SECTION 20-7-2880, AS AMENDED,
RELATING TO FAMILY DAY CARE LICENSES, SO AS TO
CLARIFY AN ADMINISTRATIVE LAW JUDGE MUST HEAR
APPEALS; SECTIONS 20-7-2930 AND 20-7-2940, AS
AMENDED, RELATING TO CHURCH DAY CARE CENTERS,
SO AS TO CLARIFY THAT APPEALS FROM A
REGISTRATION SUSPENSION MUST BE HEARD BY AN
ADMINISTRATIVE LAW JUDGE; SECTION 20-7-3230, AS
AMENDED, RELATING TO INSTITUTIONAL SERVICES
PROVIDED BY THE DEPARTMENT OF JUVENILE JUSTICE,
SO AS TO REVISE THE NAME OF THE DEPARTMENT OF
YOUTH SERVICES; SECTION 20-7-5420, AS AMENDED,
RELATING TO THE STATE COUNCIL ON MATERNAL,
INFANT, AND CHILD HEALTH, SO AS TO DELETE CERTAIN
OBSOLETE MEMBERS FROM THE COUNCIL AND TO
CORRECT CERTAIN REFERENCES; SECTION 20-7-5910, AS
AMENDED, RELATING TO THE STATE CHILD FATALITY
ADVISORY COMMITTEE, SO AS TO REVISE THE NAMES OF
CERTAIN STATE AGENCIES AND THE TITLES OF CERTAIN
ADMINISTRATIVE HEADS OF STATE AGENCIES; SECTION
23-4-20, RELATING TO CRIMINAL JUSTICE COMMITTEES
AND PROGRAMS OF THE OFFICE OF THE GOVERNOR, SO
AS TO PROVIDE THAT THE DIVISION OF PUBLIC SAFETY
PROGRAMS REFERRED TO IN THIS SECTION MEANS THE
DEPARTMENT OF PUBLIC SAFETY RATHER THAN OF THE
OFFICE OF THE GOVERNOR; SECTION 23-4-110, AS
AMENDED, RELATING TO THE GOVERNOR'S COMMITTEE
ON CRIMINAL JUSTICE, CRIME AND DELINQUENCY, SO AS
TO CONFORM THE MEMBERSHIP OF THE COMMITTEE TO
THE REVISIONS OF THE RESTRUCTURING ACT; SECTION
23-4-520, RELATING TO THE DUTIES OF THE GOVERNOR'S
OFFICE OF CRIMINAL JUSTICE PROGRAMS, SO AS TO
CORRECT A REFERENCE TO THE FORMER DEPARTMENT
OF YOUTH SERVICES; SECTION 23-6-10, AS AMENDED,
RELATING TO DEFINITIONS PERTAINING TO THE
DEPARTMENT OF PUBLIC SAFETY, SO AS TO DELETE THE
DEFINITION OF "DEPUTY DIRECTOR"; SECTION
23-6-40, AS AMENDED, RELATING TO THE DIRECTOR AND
DEPUTY DIRECTORS FOR THE DEPARTMENT OF PUBLIC
SAFETY, SO AS TO DELETE THE PROVISIONS FOR DEPUTY
DIRECTORS; SECTION 23-9-10, AS AMENDED, RELATING
TO THE STATE FIRE MARSHAL, SO AS TO CORRECT AN
INTERNAL CODE SECTION REFERENCE; SECTION
23-11-110, AS AMENDED, RELATING TO QUALIFICATIONS
OF SHERIFFS, SO AS TO CORRECT A REFERENCE TO THE
SOUTH CAROLINA CRIMINAL JUSTICE TRAINING
COUNCIL; TO AMEND CHAPTER 25 OF TITLE 23, AS
AMENDED, RELATING TO THE LAW ENFORCEMENT
OFFICERS HALL OF FAME, SO AS TO CLARIFY THAT THE
COMMITTEE IS ADVISORY, TO REQUIRE THE DIRECTOR
OF THE DEPARTMENT OF PUBLIC SAFETY TO SERVE AS
CHAIRMAN OF THE COMMITTEE, AND TO MAKE
CONFORMING CHANGES THROUGHOUT; TO AMEND
SECTION 24-1-10, RELATING TO CONSTRUCTION OF
REFERENCES, SO AS TO CONFORM REFERENCES TO THE
RESTRUCTURING ACT; SECTION 24-13-730, RELATING TO
PROGRAM CHANGES SUBJECT TO APPROPRIATIONS BY
THE GENERAL ASSEMBLY, SO AS TO REVISE CODE
SECTIONS; SECTION 24-21-300, RELATING TO CITATION
AND AFFIDAVIT OF PERSON RELEASED, SO AS TO ADD
THE REFERENCE OF OFFENDER MANAGEMENT SYSTEM
ACT AND TO CHANGE THE REFERENCE OF BOARD OF
PROBATION, PAROLE AND PARDON SERVICES TO
DEPARTMENT OF PROBATION, PAROLE AND PARDON
SERVICES; SECTION 24-22-30, RELATING TO ELIGIBILITY
TO PARTICIPATE IN THE OFFENDER MANAGEMENT
SYSTEM, SO AS TO CHANGE THE REFERENCE OF THE
BOARD OF PROBATION, PAROLE AND PARDON SERVICES
TO THE DEPARTMENT OF PROBATION, PAROLE AND
PARDON SERVICES; SECTION 24-22-150, RELATING TO
FUNDING REQUIRED, SO AS TO CHANGE THE REFERENCE
OF COMMISSION TO DIRECTOR; SECTION 24-23-30,
RELATING TO THE COMMUNITY CORRECTIONS PLAN, SO
AS TO CHANGE THE REFERENCE OF BOARD OF
PROBATION, PAROLE AND PARDON SERVICES TO
DEPARTMENT OF PROBATION, PAROLE AND PARDON
SERVICES; SECTION 24-26-10, RELATING TO THE SOUTH
CAROLINA SENTENCING GUIDELINES COMMISSION, SO
AS TO CORRECT REFERENCES TO CERTAIN NONVOTING
MEMBERS OF THE COMMISSION; SECTION 25-19-20,
RELATING TO THE PRISONER OF WAR COMMISSION, SO
AS TO REVISE THE NAME OF THE DEPARTMENT OF
VETERANS' AFFAIRS TO CONFORM TO ACT 181 OF 1993,
RESTRUCTURING OF STATE GOVERNMENT; SECTION
31-13-30, RELATING TO MEMBERSHIP ON THE SOUTH
CAROLINA STATE HOUSING FINANCE AND
DEVELOPMENT AUTHORITY, SO AS TO REVISE THE TITLE
OF THE ADMINISTRATIVE HEAD OF THE DEPARTMENT OF
HEALTH AND ENVIRONMENTAL CONTROL; SECTION
31-17-330, RELATING TO EXCEPTIONS FOR MOBILE HOME
LICENSES, SO AS TO CHANGE THE NAME OF THE
DEPARTMENT OF HIGHWAYS AND PUBLIC
TRANSPORTATION TO THE DEPARTMENT OF REVENUE;
SECTION 33-14-210, RELATING TO ADMINISTRATIVE
DISSOLUTION OF A CORPORATION BY THE SECRETARY
OF STATE, SO AS TO CONFORM A REFERENCE TO THE
TAX COMMISSION TO THE PROVISIONS OF THE
RESTRUCTURING ACT; SECTION 33-39-250, RELATING TO
THE POWERS OF COUNTY BUSINESS DEVELOPMENT
CORPORATIONS, SO AS TO CONFORM A REFERENCE TO
THE STATE DEVELOPMENT BOARD TO THE
RESTRUCTURING ACT; SECTION 38-3-110, AS AMENDED,
RELATING TO DUTIES OF THE CHIEF INSURANCE
COMMISSIONER, SO AS TO PROVIDE THAT REGULATIONS
ARE PROMULGATED BY THE COMMISSIONER; SECTION
38-27-520, AS AMENDED, RELATING TO RECOVERY OF
PREMIUMS OWED, SO AS TO PROVIDE THAT AN APPEAL
IS TO THE CIRCUIT COURT AND NOT THE
ADMINISTRATIVE LAW JUDGE DIVISION; SECTION
38-43-106, AS AMENDED, RELATING TO CONTINUING
EDUCATION REQUIREMENTS, SO AS TO REESTABLISH
THE MEMBERSHIP OF THE CONTINUING EDUCATION
ADVISORY COMMITTEE; SECTION 38-73-1380, AS
AMENDED, RELATING TO PRIVATE PASSENGER
AUTOMOBILE INSURANCE, APPROVAL OF FINAL RATE OR
PREMIUM CHARGE, AND APPROVAL OF EXPENSE
COMPONENT, SO AS TO DELETE AN INCORRECT
REFERENCE TO "THE DIVISION" AND
SUBSTITUTE A REFERENCE TO "THE
DEPARTMENT", MEANING THE DEPARTMENT OF
INSURANCE AND TO CHANGE REFERENCES FROM
DIRECTOR TO COMMISSIONER; SECTION 38-77-580, AS
AMENDED, RELATING TO THE GOVERNING BOARD OF
THE SOUTH CAROLINA REINSURANCE FACILITY, SO AS
TO ELIMINATE AN UNNECESSARY REQUIREMENT THAT
THE COMMISSIONER OF THE DEPARTMENT OF
INSURANCE OR HIS DESIGNEE ACT THROUGH THE
DEPARTMENT IN PERFORMING A CERTAIN FUNCTION;
SECTION 38-79-270, AS AMENDED, RELATING TO
APPEALING ACTIONS OF THE SOUTH CAROLINA
MEDICAL MALPRACTICE LIABILITY JOINT
UNDERWRITING ASSOCIATION, SO AS TO PROVIDE THAT
THE APPEAL IS TO THE COMMISSIONER AND NOT THE
DEPARTMENT; SECTION 38-81-270, AS AMENDED,
RELATING TO THE LEGAL PROFESSIONAL LIABILITY
INSURANCE JOINT UNDERWRITING ASSOCIATION AND
THE GATHERING OF DATA, SO AS TO DELETE A
REFERENCE TO DEPARTMENT (MEANING THE
DEPARTMENT OF INSURANCE) AND SUBSTITUTE
COMMISSIONER (MEANING CHIEF INSURANCE
COMMISSIONER OF THE DEPARTMENT OF INSURANCE);
CHAPTER 23 OF TITLE 39, RELATING TO ADULTERATED,
MISBRANDED, OR NEW DRUGS AND DEVICES, SO AS TO
CONFORM THE TITLE OF THE ADMINISTRATIVE HEAD OF
THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL TO ACT 181 OF 1993, RESTRUCTURING OF
STATE GOVERNMENT; SECTION 40-6-180, AS AMENDED,
RELATING TO AUCTIONEERS, SO AS TO REINSERT
LANGUAGE TO PROVIDE THAT AN APPRENTICE'S
SUPERVISING AUCTIONEER BE NOTIFIED IF CHARGES
ARE BROUGHT AGAINST THE APPRENTICE; SECTION
40-15-210, AS AMENDED, RELATING TO THE AUTHORITY
OF A PERSON WHOSE LICENSE OR REGISTRATION
CERTIFICATE TO PRACTICE DENTISTRY, DENTAL
HYGIENE, OR PERFORM DENTAL TECHNOLOGICAL WORK
HAS BEEN SUSPENDED OR REVOKED PURSUANT TO THE
PROVISIONS OF ARTICLE 5, CHAPTER 23 OF TITLE 1
(ADMINISTRATIVE LAW JUDGE DIVISION), SO AS TO
REENACT THE CRIMINAL PENALTY PROVISIONS WHICH
WERE INADVERTENTLY OMITTED BY ACT 181 OF 1993
(RESTRUCTURING); SECTION 40-22-150, AS AMENDED,
RELATING TO ENGINEERS AND LAND SURVEYORS, SO AS
TO PROVIDE THAT THE DIRECTOR OF THE DEPARTMENT
OF LABOR, LICENSING, AND REGULATION MAY EMPLOY
AN EXECUTIVE DIRECTOR FOR THE BOARD; SECTION
40-25-40, AS AMENDED, RELATING TO
RECOMMENDATIONS FOR MEMBERSHIP ON THE
COMMISSION OF HEARING AID SPECIALISTS, SO AS TO
REVISE THE NAME OF THE COMMISSION ON AGING;
SECTION 40-35-10, AS AMENDED, RELATING TO
DEFINITIONS CONCERNING THE BOARD OF EXAMINERS
FOR NURSING HOME ADMINISTRATORS AND
COMMUNITY RESIDENTIAL CARE FACILITY
ADMINISTRATORS, SO AS TO CHANGE REFERENCES IN
THE DEFINITION OF "QUALIFIED MENTAL
RETARDATION PROFESSIONAL" FROM THE SOUTH
CAROLINA DEPARTMENT OF MENTAL RETARDATION TO
THE DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS;
SECTION 40-35-140, AS AMENDED, RELATING TO THE
REQUIREMENT THAT HABILITATION CENTERS FOR THE
MENTALLY RETARDED MUST BE UNDER THE
SUPERVISION OF A LICENSED NURSING HOME
ADMINISTRATOR, SO AS TO CHANGE A REFERENCE FROM
THE DEPARTMENT OF MENTAL RETARDATION TO THE
DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS;
SECTION 40-47-140, AS AMENDED, RELATING TO
MINIMUM STANDARDS TO BE OBTAINED ON
EXAMINATION REQUIRED BY THE BOARD OF MEDICAL
EXAMINERS, SO AS TO CHANGE A REFERENCE FROM THE
STATE MENTAL RETARDATION DEPARTMENT TO THE
DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS;
SECTIONS 41-10-70, 41-10-80, 41-10-90, 41-10-110, AS
AMENDED, SECTION 41-13-20, SECTION 41-13-25, AS
AMENDED, SECTIONS 41-13-50, 41-13-60, 41-15-90, 41-15-100,
41-15-210, 41-15-220, 41-15-230, 41-15-240, 41-15-250, 41-15-260, 41-15-270, 41-15-280, 41-15-290, 41-15-300, SECTION 41-15-320, AS AMENDED, SECTION 41-15-520, SECTIONS 41-16-20, 41-16-40, AS AMENDED, SECTIONS 41-16-50, 41-16-60, 41-16-70, 41-16-80, 41-16-90, SECTIONS 41-16-100, 41-16-110, AS
AMENDED, SECTIONS 41-16-120, 41-16-130, SECTION 41-16-140, AS AMENDED, SECTIONS 41-16-150, 41-16-160,
SECTION 41-16-180, AS AMENDED, SECTIONS 41-17-10, 41-17-20, 41-17-40, 41-17-50, 41-17-60, 41-17-70, SECTION 41-18-40, AS AMENDED, SECTION 41-18-50, SECTIONS 41-18-60,
41-18-70, 41-18-80, 41-18-100, 41-18-110, AS AMENDED,
SECTIONS 41-18-120, 41-18-130, SECTIONS 41-18-150, 41-21-20, AS AMENDED, SECTIONS 41-21-30, 41-21-40, 41-21-70, 41-21-80, 41-21-90, 41-21-100, 41-25-110, RELATING TO THE
COMMISSIONER OF LABOR, THE DEPARTMENT OF LABOR,
AND VARIOUS DIVISIONS WITHIN THE DEPARTMENT, SO
AS TO CONFORM THOSE REFERENCES TO THE
PROVISIONS OF SECTION 977 OF ACT 181 OF 1993
(RESTRUCTURING ACT) AND DELETE OBSOLETE
PROVISIONS; SECTION 41-43-40, AS AMENDED, RELATING
TO THE DIRECTOR OF THE SOUTH CAROLINA
JOBS-ECONOMIC DEVELOPMENT AUTHORITY, SO AS TO
CONFORM A REFERENCE TO THE CHAIRMAN OF THE
STATE DEVELOPMENT BOARD TO THE RESTRUCTURING
ACT; SECTION 41-43-190, RELATING TO THE EXPORT
PROGRAMS OF THE SOUTH CAROLINA JOBS-ECONOMIC
DEVELOPMENT AUTHORITY, SO AS TO CONFORM A
REFERENCE TO THE STATE DEVELOPMENT BOARD TO
THE RESTRUCTURING ACT; SECTION 41-44-90, AS
AMENDED, RELATING TO THE INCOME AND PREMIUM
TAX CREDIT ALLOWED A TAXPAYER WITH A QUALIFIED
INVESTMENT IN A BUSINESS RECEIVING FINANCING
FROM THE PALMETTO SEED CAPITAL FUND, SO AS TO
CONFORM REFERENCES TO "COMMISSION" TO
THE RESTRUCTURING ACT; SECTION 42-5-60, RELATING
TO INSURANCE DEEMED SUBJECT TO TITLE 42
(WORKERS' COMPENSATION) AND APPROVAL OF FORMS,
SO AS TO CONFORM A REFERENCE TO THE CHIEF
INSURANCE COMMISSIONER; SECTION 43-1-115,
RELATING TO COUNTY DEPARTMENT OF SOCIAL
SERVICES BIENNIAL PERFORMANCE AUDITS, SO AS TO
REVISE THE NAME OF THE ADMINISTRATIVE HEAD OF
THE STATE DEPARTMENT AND TO CORRECT A
REFERENCE; SECTION 43-5-150, AS AMENDED, RELATING
TO APPEALS TO THE DEPARTMENT OF SOCIAL SERVICES
FOR DENIAL OF PUBLIC ASSISTANCE, SO AS TO CLARIFY
THAN AN ADMINISTRATIVE LAW JUDGE RATHER THAN A
HEARING EXAMINER HEARS AN APPEAL PURSUANT TO
THE ADMINISTRATIVE PROCEDURES ACT; SECTIONS
43-7-410, 43-7-420, 43-7-430, AND SECTION 43-7-440, AS
AMENDED, RELATING TO ASSIGNMENT AND
SUBROGATION OF CLAIMS FOR REIMBURSEMENT FOR
MEDICAID SERVICES, SO AS TO DELETE REFERENCES TO
THE STATE HEALTH AND HUMAN SERVICES FINANCE
COMMISSION AND SUBSTITUTE SOUTH CAROLINA
DEPARTMENT OF HEALTH AND HUMAN SERVICES;
SECTION 43-21-10, AS AMENDED, RELATING TO THE
ADVISORY COMMISSION ON AGING, SO AS TO REVISE
THE MEMBERSHIP AND RESPONSIBILITIES; SECTION
43-21-130, AS AMENDED, RELATING TO THE LONG TERM
CARE COUNCIL, SO AS TO REVISE THE NAME,
MEMBERSHIP, AND RESPONSIBILITIES OF THE COUNCIL;
SECTION 43-21-150, AS AMENDED, RELATING TO THE
EDUCATIONAL AND INFORMATIONAL PROGRAM OF THE
DIVISION ON AGING, SO AS TO REVISE THE REFERENCE
TO THE LONG TERM CARE COUNCIL IN ORDER TO
CONFORM TO A PRIOR NAME CHANGE; TO AMEND
SECTION 43-35-310, RELATING TO THE ADULT
PROTECTION COORDINATING COUNCIL, SO AS TO REVISE
THE NAME OF THE MEMBER AGENCIES AND
ADMINISTRATIVE TITLES; TO AMEND SECTION 44-1-50,
AS AMENDED, RELATING TO THE BOARD OF HEALTH
AND ENVIRONMENTAL CONTROL HEARING APPEALS
FROM THE DECISIONS OF AN ADMINISTRATIVE LAW
JUDGE, SO AS TO CORRECT CERTAIN CITATIONS TO
PROVISIONS OF THE 1976 CODE CONTAINED IN THIS
SECTION; SECTION 44-2-75, AS AMENDED, RELATING TO
THE STATE UNDERGROUND PETROLEUM
ENVIRONMENTAL RESPONSE BANK ACT OF 1988 AND
INSURANCE POOLS, SO AS TO MAKE A TECHNICAL
CORRECTION WITH RESPECT TO A REFERENCE TO THE
DEPARTMENT OF INSURANCE; SECTION 44-6-5, AS
AMENDED, RELATING TO THE DEPARTMENT OF HEALTH
AND HUMAN SERVICES, SO AS TO DELETE A REFERENCE
TO COMMISSION AND SUBSTITUTE FOR IT DEPARTMENT
UNDER THE DEFINITION OF MARKET BASKET INDEX;
SECTION 44-6-60, AS AMENDED, RELATING TO THE
ADVISORY COMMITTEE TO THE HEALTH AND HUMAN
SERVICES FINANCE COMMISSION, SO AS TO REVISE THE
NAMES OF THE DEPARTMENTS REPRESENTED ON THE
COMMITTEE AND THE TITLES OF THE DEPARTMENT
ADMINISTRATORS; SECTION 44-6-140, AS AMENDED,
RELATING TO MEDICAID HOSPITAL PROSPECTIVE
PAYMENT SYSTEM AND COST CONTAINMENT MEASURES,
SO AS TO DELETE COMMISSION IN TWO INSTANCES AND
SUBSTITUTE DEPARTMENT, WITH REFERENCE TO THE
DEPARTMENT OF HEALTH AND HUMAN SERVICES;
SECTION 44-6-146, AS AMENDED, RELATING TO COUNTY
ASSESSMENTS FOR INDIGENT MEDICAL CARE AND
PENALTIES FOR FAILURE TO PAY ASSESSMENTS IN A
TIMELY MANNER, SO AS TO DELETE A REFERENCE TO
COMMISSION AND SUBSTITUTE DEPARTMENT, WITH
REFERENCE TO THE DEPARTMENT OF HEALTH AND
HUMAN SERVICES; SECTION 44-6-170, AS AMENDED,
RELATING TO THE HEALTH DATA OVERSIGHT COUNCIL,
SO AS TO REVISE THE TITLES OF THE ADMINISTRATIVE
HEADS OF THE DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONTROL AND THE HEALTH AND
HUMAN SERVICES FINANCE COMMISSION; SECTION
44-6-520, AS AMENDED, RELATING TO THE SALE, LEASE,
OR MORTGAGE OF A NURSING HOME IN RECEIVERSHIP,
SO AS TO CHANGE A REFERENCE TO THE HEALTH AND
HUMAN SERVICES FINANCE COMMISSION TO THE
DEPARTMENT OF HEALTH AND HUMAN SERVICES;
SECTION 44-6-540, RELATING TO THE
REGULATION-MAKING AUTHORITY UNDER THE
"INTERMEDIATE SANCTIONS FOR MEDICAID
CERTIFIED NURSING HOME ACT", SO AS TO DELETE
THE REFERENCE TO COMMISSION (MEANING THE
HEALTH AND HUMAN SERVICES FINANCE COMMISSION)
AND SUBSTITUTE DEPARTMENT OF HEALTH AND HUMAN
SERVICES; SECTIONS 44-6-720 AND 44-6-730, RELATING TO
MEDICAID QUALIFYING TRUSTS, SO AS TO REVISE THE
NAME OF THE STATE HEALTH AND HUMAN SERVICES
FINANCE COMMISSION; SECTION 44-7-90, RELATING TO
VIOLATIONS OF THE LAW CONCERNING MEDICAID
NURSING HOME PERMITS AND PENALTIES, SO AS TO
CLARIFY REFERENCES TO THE DEPARTMENT OF HEALTH
AND HUMAN SERVICES AND THE DEPARTMENT OF
HEALTH AND ENVIRONMENTAL CONTROL; SECTION
44-7-170, AS AMENDED, RELATING TO EXEMPTIONS FROM
THE STATE CERTIFICATION OF NEED AND HEALTH
FACILITY LICENSURE ACT, SO AS TO REVISE THE NAME
OF THE DEPARTMENT OF MENTAL RETARDATION;
SECTION 44-7-370, AS AMENDED, RELATING TO THE
APPOINTMENT OF MEMBERS TO THE RESIDENTIAL CARE
COMMITTEE, SO AS TO REVISE THE TITLE OF THE
DEPARTMENT ADMINISTRATOR; SECTION 44-23-10, AS
AMENDED, RELATING TO DEFINITIONS PERTAINING TO
MENTALLY ILL AND MENTALLY RETARDED PERSONS, SO
AS TO CLARIFY THE DEFINITION OF DIRECTOR; SECTION
44-38-380, AS AMENDED, RELATING TO THE ADVISORY
COUNCIL TO THE SOUTH CAROLINA HEAD AND SPINAL
CORD SERVICE DELIVERY SYSTEM, SO AS TO REVISE
THE NAME OF A MEMBER OF THE COUNCIL AND THE
NAME OF THE ADMINISTRATIVE HEAD OF THE
DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL; SECTION 44-40-60, RELATING TO SOUTH
CAROLINA AGENT ORANGE ADVISORY COUNCIL, SO AS
TO REVISE THE NAME OF THE DEPARTMENT OF
VETERANS AFFAIRS; SECTION 44-53-480, RELATING TO
SOUTH CAROLINA LAW ENFORCEMENT DIVISION
ENFORCEMENT OF CONTROLLED SUBSTANCE LAWS, SO
AS CONFORM REFERENCES TO THE COMMISSION ON
ALCOHOL AND DRUG ABUSE TO THE RESTRUCTURING
ACT; SECTION 44-53-490, RELATING TO THE DEPARTMENT
OF HEALTH AND ENVIRONMENTAL CONTROL DRUG
INSPECTORS, SO AS TO CONFORM A REFERENCE TO THE
COMMISSION ON ALCOHOL AND DRUG ABUSE TO THE
RESTRUCTURING ACT; SECTION 44-53-500, RELATING TO
THE ISSUANCE AND EXECUTION OF ADMINISTRATIVE
INSPECTION WARRANTS BY THE DEPARTMENT OF
HEALTH AND ENVIRONMENTAL CONTROL WITH RESPECT
TO THE REGULATION OF CONTROLLED SUBSTANCES, SO
AS TO CONFORM A REFERENCE TO THE COMMISSION ON
ALCOHOL AND DRUG ABUSE TO THE RESTRUCTURING
ACT; SECTION 44-53-720, RELATING TO RESTRICTIONS ON
THE USE OF METHADONE, SO AS TO CONFORM A
REFERENCE TO THE COMMISSION ON ALCOHOL AND
DRUG ABUSE TO THE RESTRUCTURING ACT; SECTION
44-55-120, RELATING TO THE SAFE DRINKING WATER
ACT, SO AS TO REVISE THE NAME OF THE
ADMINISTRATIVE HEAD OF THE DEPARTMENT OF
HEALTH AND ENVIRONMENTAL CONTROL; SECTION
44-56-60, AS AMENDED, RELATING TO HAZARDOUS
WASTE MANAGEMENT, SO AS TO REVISE THE TITLE OF
THE ADMINISTRATIVE HEAD OF THE DEPARTMENT OF
HEALTH AND ENVIRONMENTAL CONTROL; SECTION
44-67-90, RELATING TO THE DEPARTMENT OF HEALTH
AND ENVIRONMENTAL CONTROL'S FUNDS FOR LITTER
CONTROL RESEARCH, SO AS TO REVISE THE TITLE OF
THE ADMINISTRATIVE HEAD OF THE DEPARTMENT;
SECTION 44-96-440, RELATING TO UNLAWFUL ACTS
UNDER SOLID WASTE MANAGEMENT, SO AS TO REVISE
THE TITLE OF THE ADMINISTRATIVE HEAD OF THE
DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL; SECTION 46-13-60, AS AMENDED, RELATING TO
STANDARDS FOR CERTIFICATION OF PESTICIDE
APPLICATORS, SO AS TO CHANGE THE NAME OF THE
DIVISION OF AERONAUTICS TO THE STATE AVIATION
ADMINISTRATION; SECTION 48-9-30, AS AMENDED,
RELATING TO DEFINITIONS PERTAINING TO SOIL AND
WATER CONSERVATION DISTRICTS, SO AS TO DEFINE
THE ADVISORY COUNCIL; SECTION 48-9-610, AS
AMENDED, RELATING TO THE APPOINTMENT OF TWO
COMMISSIONERS TO SERVE WITH THE ELECTED
COMMISSIONERS OF SOIL AND WATER CONSERVATION
DISTRICTS, SO AS TO AUTHORIZE THE BOARD OF THE
DEPARTMENT OF NATURAL RESOURCES TO MAKE THE
APPOINTMENT; SECTION 48-9-1210, AS AMENDED,
RELATING TO THE QUALIFICATIONS OF APPOINTED
COMMISSIONERS OF SOIL AND WATER CONSERVATION
DISTRICTS, SO AS TO PROVIDE FOR THEIR APPOINTMENT
BY THE BOARD OF THE DEPARTMENT OF NATURAL
RESOURCES UPON THE RECOMMENDATION OF THE
ADVISORY COUNCIL INSTEAD OF BY THE BOARD OF THE
DEPARTMENT; SECTION 48-9-1230, AS AMENDED,
RELATING TO THE TERMS, VACANCIES, AND REMOVAL
OF THE DISTRICT COMMISSIONERS, SO AS TO DELETE
OBSOLETE LANGUAGE AND REVISE THE PROCEDURE
FOR THE FILLING OF VACANCIES AND FOR REMOVAL;
SECTION 48-9-1820, AS AMENDED, RELATING TO THE
ELIGIBILITY AND COMPENSATION OF MEMBERS OF
BOARDS OF ADJUSTMENT, SO AS TO PROVIDE FOR
MEMBERS OF THE ADVISORY COUNCIL INSTEAD OF THE
BOARD OF THE DEPARTMENT TO BE INELIGIBLE TO
SERVE AND TO CLARIFY REFERENCES TO THE BOARDS
OF ADJUSTMENT; SECTION 48-9-1840, AS AMENDED,
RELATING TO HARDSHIP PETITIONS FILED WITH BOARDS
OF ADJUSTMENT, SO AS TO CLARIFY REFERENCES TO
THE BOARDS, AND SECTION 48-9-1850, AS AMENDED,
RELATING TO HEARINGS AND ACTION BY THE BOARDS,
SO AS TO CLARIFY REFERENCES TO THE BOARDS;
SECTION 48-39-150, AS AMENDED, RELATING TO THE
APPEALS PROCESS FOR THE DENIAL OF COASTAL ZONE
PERMITS; SECTION 48-39-210, AS AMENDED, RELATING TO
CRITICAL AREA DELINEATIONS, SO AS TO REVISE THE
NAME OF THE COASTAL COUNCIL; SECTION 48-39-280, AS
AMENDED, RELATING TO BEACH NOURISHMENT PROJECT
PERMITS AND SETBACK LINES; SECTION 48-39-290, AS
AMENDED, RELATING TO REBUILDING STRUCTURES
OTHER THAN EROSION CONTROL STRUCTURES SEAWARD
OF THE BASELINE, SO AS TO CLARIFY THE APPEALS
PROCESS AS ESTABLISHED BY THE RESTRUCTURING ACT
OF 1993; SECTION 48-49-70, RELATING TO THE MOUNTAIN
RIDGE PROTECTION ACT OF 1984, SO AS TO TRANSFER
THE JURISDICTION AND MANAGEMENT FROM THE
DEPARTMENT OF PARKS, RECREATION AND TOURISM TO
THE DEPARTMENT OF NATURAL RESOURCES; SECTION
49-1-15, AS AMENDED, RELATING TO PERMITS FOR
HYDROELECTRIC PROJECTS INVOLVING IMPOUNDMENT
OR DIVERSION OF WATERS OF NAVIGABLE STREAMS, SO
AS TO REQUIRE A PERMIT FROM THE DEPARTMENT OF
HEALTH AND ENVIRONMENTAL CONTROL FOR ANY
CONSTRUCTION, ALTERATION, DREDGING, FILLING, OR
OTHER ACTIVITY IN ANY WATERS OF NAVIGABLE
STREAMS; SECTION 49-4-15, AS AMENDED, RELATING TO
THE SOUTH CAROLINA WATER USE REPORTING AND
COORDINATION ACT, SO AS TO MAINTAIN THE PROGRAM
UNDER THE DEPARTMENT OF NATURAL RESOURCES
RATHER THAN TRANSFERRING IT TO THE DEPARTMENT
OF HEALTH AND ENVIRONMENTAL CONTROL AS
PROVIDED BY THE RESTRUCTURING ACT OF 1993;
SECTION 49-7-70, RELATING TO THE POWERS OF THE
BUSHY PARK AUTHORITY, SO AS TO CONFORM A
REFERENCE TO THE STATE HIGHWAY DEPARTMENT TO
THE RESTRUCTURING ACT; SECTION 50-3-90, AS
AMENDED, RELATING TO CONDUCTING GAME AND FISH
CULTURAL OPERATIONS, SO AS TO CHANGE A
REFERENCE FROM BOARD TO DEPARTMENT; SECTION
50-3-310, AS AMENDED, RELATING TO THE APPOINTMENT
OF ENFORCEMENT OFFICERS OF THE NATURAL
RESOURCES ENFORCEMENT DIVISION, SO AS TO CLARIFY
THAT THE DIRECTOR OF THE DEPARTMENT IS
RESPONSIBLE FOR HIRING AND FIRING THE OFFICERS;
SECTION 50-3-315, AS AMENDED, RELATING TO DEPUTY
ENFORCEMENT OFFICERS OF THE NATURAL RESOURCES
ENFORCEMENT DIVISION, SO AS TO REVISE THEIR
AUTHORITY; SECTION 50-3-510, AS AMENDED, RELATING
TO THE CUTTING OF TIMBER BY THE DEPARTMENT OF
NATURAL RESOURCES, SO AS TO CHANGE THE
REFERENCES TO WILDLIFE AND FRESHWATER FISH
DIVISION TO WILDLIFE AND FRESHWATER FISHERIES
DIVISION; SECTION 50-5-20, AS AMENDED, RELATING TO
THE JURISDICTION OF THE MARINE RESOURCES DIVISION
OF THE DEPARTMENT OF NATURAL RESOURCES SO AS
TO CLARIFY THAT THE DEPARTMENT HAS CONTINUING
JURISDICTION OVER STRIPED BASS; SECTION 50-5-110, AS
AMENDED, RELATING TO THE PROMULGATION OF
REGULATIONS BY THE DEPARTMENT OF NATURAL
RESOURCES, SO AS TO CHANGE THE REFERENCE TO
DIVISION TO DEPARTMENT TO CONFORM TO OTHER
CHANGES IN THE SECTION; SECTION 50-7-10, AS
AMENDED, RELATING TO THE MEMBERSHIP OF THE
ATLANTIC STATES MARINE FISHERIES COMMISSION, SO
AS TO AUTHORIZE THE DIRECTOR OF THE DEPARTMENT
OF NATURAL RESOURCES TO APPOINT A DESIGNEE TO
SERVE IN HIS PLACE ON THE COMMISSION; SECTION
50-9-70, RELATING TO THE ESTABLISHMENT OF HUNTER
EDUCATION PROGRAMS, SO AS TO REVISE THE NAME OF
THE WILDLIFE AND MARINE RESOURCES DEPARTMENT;
SECTION 50-9-470, AS AMENDED, RELATING TO
TEMPORARY NONRESIDENT FISHING LICENSES, SO AS TO
CHANGE THE REFERENCES TO WILDLIFE AND
FRESHWATER FISH DIVISION TO WILDLIFE AND
FRESHWATER FISHERIES DIVISION; SECTION 50-17-320, AS
AMENDED, RELATING TO THE CLOSURE OF SHELLFISH
GROUNDS, SO AS TO AUTHORIZE THE DEPARTMENT OF
NATURAL RESOURCES RATHER THAN THE BOARD TO
REMOVE CLOSED AREAS FROM A PERMIT ACREAGE
AGREEMENT; SECTION 50-17-365, AS AMENDED,
RELATING TO THE CLOSED SEASON FOR SHELLFISH, SO
AS TO AUTHORIZE THE DEPARTMENT OF NATURAL
RESOURCES RATHER THAN THE BOARD TO OPEN OR
CLOSE AREAS; SECTION 50-17-730, AS AMENDED,
RELATING TO THE REQUIREMENT FOR PEELER AND SOFT
SHELL CRABS, SO AS TO DELETE THE REFERENCE TO
MARINE RESOURCES DIVISION TO CONFORM TO OTHER
CHANGES IN THE SECTION; SECTION 51-3-60, RELATING
TO FREE USE OF STATE PARK FACILITIES BY DISABLED
PERSONS, SO AS TO REVISE THE NAME OF THE
COMMISSION ON AGING AND THE STATE DEPARTMENT
OF PARKS, RECREATION AND TOURISM; SECTION
51-13-860, RELATING TO A SPECIAL LOAN TO THE
PATRIOT'S POINT DEVELOPMENT AUTHORITY, SO AS TO
CONFORM A REFERENCE TO THE SOUTH CAROLINA
COORDINATING COUNCIL FOR ECONOMIC
DEVELOPMENT; SECTION 53-3-100, RELATING TO THE
COMMITTEE WHICH HONORS THE "SOUTH
CAROLINA FAMILY OF THE YEAR", SO AS TO REVISE
THE NAMES OF CERTAIN DEPARTMENTS AND
COMMISSIONS ON THE COMMITTEE; SECTION 55-1-1,
RELATING TO THE DIVISION OF AERONAUTICS, SO AS TO
CHANGE THE NAME TO THE STATE AVIATION
ADMINISTRATION; SECTION 55-1-5, AS AMENDED,
RELATING TO DEFINITION FOR UNIFORM STATE
AERONAUTICAL REGULATORY LAW, SO AS TO CHANGE
THE NAME OF THE DIVISION OF AERONAUTICS TO THE
STATE AVIATION ADMINISTRATION; SECTION 55-5-50, AS
AMENDED, RELATING TO THE DEPUTY DIRECTOR OF
AERONAUTICS, SO AS TO REINSERT THE REQUIREMENT
THAT HE BE A COMMERCIAL PILOT WITH INSTRUMENT
RATING; SECTION 55-5-190, AS AMENDED, RELATING TO
COOPERATION BETWEEN PUBLIC DEPARTMENTS, SO AS
TO CHANGE THE NAME OF THE DIVISION OF
AERONAUTICS TO THE STATE AVIATION
ADMINISTRATION; SECTION 55-8-10, AS AMENDED,
RELATING TO THE UNIFORM AIRCRAFT FINANCIAL
RESPONSIBILITY ACT, SO AS TO CHANGE THE NAME OF
THE DIVISION OF AERONAUTICS TO THE STATE
AVIATION ADMINISTRATION; SECTION 55-11-10, AS
AMENDED, RELATING TO PARTICULAR AIRPORTS, SO AS
TO CHANGE THE NAME OF THE DIVISION OF
AERONAUTICS TO THE STATE AVIATION
ADMINISTRATION; SECTION 55-15-10, AS AMENDED,
RELATING TO RELOCATION ASSISTANCE, SO AS TO
CHANGE THE NAME OF THE DIVISION OF AERONAUTICS
TO THE STATE AVIATION ADMINISTRATION; SECTION
56-1-80, AS AMENDED, RELATING TO THE APPLICATION
FOR A DRIVER'S LICENSE OR PERMIT, SO AS TO DELETE
REFERENCES TO THE DEPARTMENT OF REVENUE AND
TAXATION AND TO CLARIFY REFERENCES TO THE
DEPARTMENT OF PUBLIC SAFETY; SECTION 56-1-135, AS
AMENDED, RELATING TO DESIGNATED DRIVERS FOR
FIRE EXTINGUISHMENT, SO AS TO CLARIFY REFERENCES
TO THE DEPARTMENT OF PUBLIC SAFETY; SECTION
56-1-221, RELATING TO THE MEDICAL ADVISORY BOARD,
SO AS TO CONFORM REFERENCES TO THE
RESTRUCTURING ACT AND TO CLARIFY THAT THE
BOARD MUST ADVISE THE DIRECTOR OF THE
DEPARTMENT OF PUBLIC SAFETY; SECTION 56-1-225, AS
AMENDED, RELATING TO THE REEXAMINATION OF
DRIVERS INVOLVED IN FOUR ACCIDENTS WITHIN
TWENTY-FOUR MONTHS, SO AS TO CLARIFY REFERENCES
TO THE DEPARTMENT OF PUBLIC SAFETY; SECTION
56-1-1320, AS AMENDED, RELATING TO THE ISSUANCE OF
PROVISIONAL DRIVER'S LICENSE, SO AS TO CLARIFY
REFERENCES IN THE SECTION; SECTION 56-1-1330, AS
AMENDED, RELATING TO PROVISIONAL DRIVER'S
LICENSE, SO AS TO CHANGE REFERENCES FROM THE
SOUTH COMMISSION ON ALCOHOL AND DRUG ABUSE TO
THE DEPARTMENT OF ALCOHOL AND OTHER DRUG
ABUSE SERVICES; SECTION 56-1-2100, AS AMENDED,
RELATING TO COMMERCIAL DRIVERS LICENSE, SO AS TO
CLARIFY REFERENCES TO THE DEPARTMENT OF PUBLIC
SAFETY; TO AMEND SECTION 56-3-1010, RELATING TO
DEFINITIONS FOR REGISTRATION OF CORPORATE OWNED
FLEET MOTOR VEHICLES, SO AS TO CHANGE THE
REFERENCE OF THE DEPARTMENT OF HIGHWAYS AND
PUBLIC TRANSPORTATION TO THE DEPARTMENT OF
REVENUE; SECTION 56-5-1520, AS AMENDED, RELATING
TO MOTOR VEHICLE SPEED LIMITS, SO AS TO REVISE
THE REQUIREMENTS FOR DEPOSIT OF FINES; SECTION
56-5-2950, AS AMENDED, RELATING TO IMPLIED CONSENT
TO CHEMICAL TESTS OF BREATH, BLOOD, AND URINE, SO
AS TO DELETE A SENTENCE WHICH HAS BEEN
DECLARED UNCONSTITUTIONAL; SECTION 56-5-2990, AS
AMENDED, RELATING TO THE SUSPENSION OF THE
DRIVER'S LICENSE OF A PERSON CONVICTED OF
CERTAIN VIOLATIONS, SO AS TO CHANGE REFERENCES
FROM THE SOUTH CAROLINA COMMISSION ON ALCOHOL
AND DRUG ABUSE TO THE DEPARTMENT OF ALCOHOL
AND OTHER DRUG ABUSE SERVICES; SECTION 56-5-4160,
AS AMENDED, RELATING TO THE DISPOSITION OF FINES
FOR WEIGHT VIOLATIONS OF VEHICLES AND LOADS, SO
AS TO REQUIRE THE FINES BE DEPOSITED INTO THE SIZE
AND WEIGHT REVITALIZATION PROGRAM FUND FOR
PERMANENT IMPROVEMENTS RATHER THAN INTO THE
GENERAL FUND; SECTION 56-5-5810, AS AMENDED,
RELATING TO THE DEFINITIONS FOR THE DISPOSITION
OF ABANDONED OR DERELICT MOTOR VEHICLES, SO AS
TO CHANGE A REFERENCE TO THE DIRECTOR OF THE
DEPARTMENT OF REVENUE AND TAXATION TO THE
DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY;
SECTION 56-10-240, AS AMENDED, RELATING TO NOTICE
OF INSURANCE CANCELLATION, SO AS TO CORRECT
REFERENCES TO THE DEPARTMENT OF PUBLIC SAFETY,
THE DEPARTMENT OF REVENUE, AND THE CHIEF
INSURANCE COMMISSIONER; SECTION 57-3-610, AS
AMENDED, RELATING TO NAMING A ROAD, BRIDGE, OR
HIGHWAY IN HONOR OF A PERSON, SO AS TO DELETE
THE REFERENCE TO COUNTY LEGISLATIVE DELEGATION
AND SUBSTITUTE COUNTY TRANSPORTATION
COMMITTEE AND PROVIDE FOR LIMITATION OF ACTUAL
EXPENSES FOR DEDICATIONS ON AN INTERSTATE
HIGHWAY; SECTION 57-5-1340, RELATING TO POWERS
AND DUTIES OF THE DEPARTMENT OF TRANSPORTATION
REGARDING TURNPIKES, SO AS TO CHANGE REFERENCES
OF THE DEPARTMENT OF HIGHWAYS AND PUBLIC
TRANSPORTATION TO THE DEPARTMENT OF
TRANSPORTATION; SECTION 57-25-150, AS AMENDED,
RELATING TO PERMIT FEES FOR DIRECTIONAL SIGNS, SO
AS TO CHANGE THE REFERENCE OF THE DEPARTMENT
OF HIGHWAYS AND PUBLIC TRANSPORTATION TO THE
DEPARTMENT OF TRANSPORTATION; SECTIONS 57-25-470
AND 57-25-680, RELATING TO COMPENSATION FOR
REMOVAL OF OUTDOOR ADVERTISING SIGNS, SO AS TO
CHANGE THE NAME OF THE DEPARTMENT OF HIGHWAYS
AND PUBLIC TRANSPORTATION TO THE DEPARTMENT OF
TRANSPORTATION; SECTION 57-27-70, RELATING TO
ACQUISITION OF LANDS FOR JUNKYARDS, SO AS TO
CHANGE THE NAME OF THE DEPARTMENT OF HIGHWAYS
AND PUBLIC TRANSPORTATION TO THE DEPARTMENT OF
TRANSPORTATION; ARTICLE 3, CHAPTER 3, TITLE 58,
RELATING TO THE LAW ENFORCEMENT DEPARTMENT OF
THE PUBLIC SERVICE COMMISSION, SO AS TO DEVOLVE
ITS DUTIES AND FUNCTIONS UPON THE DEPARTMENT OF
PUBLIC SAFETY, STATE POLICE DIVISION; SECTION
59-36-20, RELATING TO DEVELOPMENT OF A
COMPREHENSIVE SYSTEM OF SPECIAL EDUCATION, SO
AS TO REVISE THE NAME OF THE CONTINUUM OF CARE;
SECTION 59-53-20, RELATING TO THE SOUTH CAROLINA
TECHNICAL EDUCATION SYSTEM, SO AS TO CONFORM
THE NAME OF THE COORDINATING COUNCIL FOR
ECONOMIC DEVELOPMENT OF THE DEPARTMENT OF
COMMERCE; SECTION 59-63-31, RELATING TO RESIDENCY
REQUIREMENTS TO ATTEND PUBLIC SCHOOLS, SO AS TO
CONFORM THE NAME OF THE DEPARTMENT OF YOUTH
SERVICES TO ACT 181 OF 1993; SECTION 59-65-30, AS
AMENDED, RELATING TO EXCEPTIONS TO MANDATORY
ATTENDANCE REQUIREMENTS OF CHILDREN IN PUBLIC
OR PRIVATE SCHOOLS, SO AS TO REVISE THE NAME OF
THE DEPARTMENT OF YOUTH SERVICES; SECTION
59-67-535, RELATING TO THE USE OF BOATS OPERATED
BY THE DEPARTMENT OF EDUCATION TO TRANSPORT
DISABLED PERSONS, SO AS TO REVISE THE NAME OF THE
COMMISSION ON AGING; SECTION 59-111-20, AS
AMENDED, RELATING TO FREE TUITION FOR CERTAIN
VETERANS' CHILDREN, SO AS TO REVISE THE NAME OF
THE DEPARTMENT OF VETERANS AFFAIRS; SECTIONS
61-1-120 AND 61-1-125, RELATING TO REQUIREMENTS FOR
APPLICANTS FOR LICENSES AND PERMITS ISSUED
PURSUANT TO THE ALCOHOLIC BEVERAGE CONTROL
ACT, SO AS TO CHANGE REFERENCES TO ALCOHOLIC
BEVERAGE CONTROL COMMISSION AND COMMISSION TO
THE PROVISIONS OF THE RESTRUCTURING ACT;
SECTIONS 61-5-320 AND 61-5-360, AS AMENDED, RELATING
TO THE DISBURSEMENT OF FUNDS TO COUNTIES FOR
EDUCATIONAL PURPOSES RELATING TO USE OF
ALCOHOLIC LIQUORS AND THE REHABILITATION OF
ALCOHOLICS, DRUG ABUSERS, AND DRUG ADDICTS, SO
AS TO CHANGE REFERENCES FROM THE SOUTH
CAROLINA COMMISSION ON ALCOHOLISM AND THE
COMMISSIONER OF NARCOTICS AND CONTROLLED
SUBSTANCES TO THE DEPARTMENT OF ALCOHOL AND
OTHER DRUG ABUSE SERVICES; SECTION 61-9-35,
RELATING TO REQUIREMENTS FOR THE SALE OF BEER
AND WINE AND THE RESTRICTIONS ON BEER OR BEER
AND WINE PERMITTEE IN PAYING WHOLESALERS AND
THE PENALTY FOR VIOLATIONS, SO AS TO CHANGE
REFERENCES TO ALCOHOLIC BEVERAGE CONTROL
COMMISSION AND COMMISSION TO THE PROVISIONS OF
THE RESTRUCTURING ACT; SECTION 61-13-590, RELATING
TO THE SALE OF ALCOHOLIC BEVERAGES SEIZED IN
ENFORCEMENT ACTIONS, SO AS TO CONFORM A
REFERENCE TO THE TAX COMMISSION TO THE
RESTRUCTURING ACT; SECTION 1613 OF ACT 181 OF 1993,
RELATING TO TRANSITION PROVISIONS, SO AS TO
PROVIDE THAT AN EMPLOYEE'S PERSONNEL RECORDS
ARE TRANSFERRED AND BELONG TO THE AGENCY TO
WHICH THE EMPLOYEE IS TRANSFERRED; SECTION 1618
OF ACT 181 OF 1993, RELATING TO THE EFFECTIVE
DATES OF THE STATE GOVERNMENT RESTRUCTURING
ACT, SO AS TO MAKE TECHNICAL CORRECTIONS IN
REGARD TO CERTAIN EFFECTIVE DATES AND EFFECTIVE
DATE REFERENCES; TO AMEND THE 1976 CODE BY
ADDING SECTION 40-73-17, SO AS TO PROVIDE THAT THE
DEPARTMENT OF LABOR, LICENSING, AND REGULATION
SHALL PROVIDE LEGAL SERVICES TO ALL ITS DIVISIONS;
SECTIONS 48-9-215 AND 48-9-225, SO AS TO ESTABLISH
AND PROVIDE FOR THE STATE LAND RESOURCES AND
CONSERVATION DISTRICTS ADVISORY COUNCIL; TO
AMEND CHAPTER 3 OF TITLE 49 BY ADDING SECTION
49-3-60, SO AS TO AUTHORIZE THE DEPARTMENT OF
NATURAL RESOURCES TO NEGOTIATE AGREEMENTS
RELATING TO THE WITHDRAWAL, TRANSFER, OR
DIVERSION OF WATER CONNECTED TO WATERS OF THIS
STATE; TO AMEND THE 1976 CODE BY ADDING CHAPTER
27 TO TITLE 50, SO AS TO CHANGE THE PLACEMENT OF
THE STATUTORY AUTHORITY FOR THE HERITAGE TRUST
PROGRAM FROM TITLE 51 TO TITLE 50; TO AMEND THE
1976 CODE BY ADDING SECTION 56-3-1720 SO AS TO
PROVIDE FOR A SPECIAL LICENSE PLATE FOR LAW
ENFORCEMENT MOTOR VEHICLES OPERATED BY LINE
LAW ENFORCEMENT PERSONNEL OF THE DEPARTMENT
OF PUBLIC SAFETY; TO DIRECT THE CODE
COMMISSIONER TO CHANGE CERTAIN REFERENCES TO
CONFORM WITH THE PROVISIONS OF THIS ACT; AND TO
REPEAL SECTIONS 41-15-310, 43-21-120, 43-21-140, 48-9-230,
49-5-130, 49-21-80, CHAPTER 5 OF TITLE 12, CHAPTER 61 OF
TITLE 40, AND CHAPTER 17 OF TITLE 51.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 1-3-220 of the 1976 Code is amended to
read:
"Section 1-3-220. The following appointments shall be
made by the Governor and are in addition to those appointments by
the Governor authorized in other provisions in the Code:
(1) An appointment to fill any vacancy in an office of the
executive department as defined in Section 1-1-110 occurring
during a recess of the General Assembly. The term of such
appointment shall be until the vacancy be filled by a general
election or by the General Assembly in the manner provided by
law.
(2 1) An appointment to fill any vacancy in a
county office. The person so appointed shall hold office, in all
cases in which the office is elective, until the next general election
and until his successor shall qualify; and in the case of offices
originally filled by appointment and not by election, until the
adjournment of the session of the General Assembly next after such
vacancy has occurred. The Governor may remove for cause any
person so appointed by him under the provisions of this paragraph
to fill any such vacancy.
(3 2) Proxies to represent the share of the State
in the Cheraw and Coalfields Railroad Company and in the Cheraw
and Salisbury Railroad Company.
(4 3) The chief constable of the State,
whensoever in his judgment any public emergency shall require it
or when necessary to the due execution of legal process."
SECTION 1A. Chapter 3, Title 1 of the 1976 Code is amended
by adding:
"Section 1-3-200. (A) Effective with all appointments
made after January 1, 1996, and for all appointments whose terms
expire after January 1, 1996, unless expressly provided otherwise,
the term of office for all appointments subject to the advice and
consent of the Senate shall begin on June first and expire on May
thirty-first of the year in which the respective term of office is set
for appointment or reappointment. The provisions of this section
and the Rules of the Senate shall govern the appointment and
confirmation of offices subject to the advice and consent of the
Senate.
(B) Prior to April first of each year, the Governor must submit
an appointment to the Senate for its consideration for those offices
with terms expiring in that year.
If no appointment is transmitted prior to April first or if the
appointment transmitted is not confirmed by the Senate prior to sine
die adjournment of the General Assembly, the office is vacant upon
sine die adjournment and an interim appointment of another
individual must be made and shall be deemed a subsequent interim
appointment as provided in Section 1-3-210.
(C) If, on or after April first, a vacancy occurs in an office
referenced in subsection (A), for reasons other than expiration of a
term, the Governor may submit a new appointment to the Senate
for advice and consent within five working days of the vacancy but
in no event later than May twenty-first of that year. If no
appointment is transmitted or if the appointment transmitted is not
confirmed by the Senate prior to sine die adjournment of the
General Assembly, the office is vacant upon sine die adjournment
and an interim appointment of another individual may be made and
shall be deemed a subsequent interim appointment as provided in
Section 1-3-210.
(D) An appointment of the Governor to a vacancy occurring
after May first for reasons other than expiration of a term, may be
filled upon advice and consent of the Senate. If the Senate fails to
confirm the appointee, the same individual may be appointed as an
interim appointment pursuant to Section 1-3-210, notwithstanding
the fact that the vacancy occurred when the General Assembly was
in session.
(E) The provisions of this section shall not apply to the
appointment of magistrates made pursuant to Section
22-1-10."
SECTION 1B. Section 1-3-210 of the 1976 Code is amended to
read:
"Section 1-3-210. (A) During the recess of the
Senate, a vacancy which occurs in an office filled by an
appointment of the Governor with the advice and consent of the
Senate may be filled by an interim appointment of the Governor.
The Governor Secretary of State must report the
interim appointment to the Senate within five working days of
its receipt. and The Governor must forward a
formal appointment to the Senate on the second Tuesday in
January of the at its next ensuing regular session.
If the Senate does not advise and consent thereto to
the interim appointment prior to sine die adjournment of the
next ensuing regular session, the office shall be vacant and
the interim appointment appointee shall not serve in
hold over status notwithstanding any other provision of law to the
contrary. The Governor may make a A subsequent
interim appointment of a different person person other
than the original interim appointee to a the
vacancy created by a failure of the Senate to grant confirmation to
the original interim appointment. Unless confirmed, the
office to which the subsequent interim appointee was appointed is
deemed vacant on shall expire on the second Tuesday in
January February first following the date of
such that the subsequent interim appointment is
made and the appointment must be returned to the
Governor office shall be vacant. Notwithstanding
any provision of law to the contrary, the subsequent interim
appointee may not continue in office in holdover status.
(B) Notwithstanding any statutory provision to the contrary,
except Section 1-1-120, the Governor may not make an
appointment to an office which is filled by election by the General
Assembly."
SECTION 1C. Section 1-3-215 of the 1976 Code is amended to
read:
"Section 1-3-215. (A) Appointments by the Governor
requiring the advice and consent of the Senate must be transmitted
to the Senate and must contain at a minimum the following
information:
(1) the title of the office to which the individual is being
appointed;
(2) the designation of any special seat, discipline, interest
group or other designated entity that the individual is representing
or is chosen from;
(3) the full legal name of the individual being appointed;
(4) the date of birth, driver's license number, social
security number, voter registration number, and precinct of
residence of the individual being appointed;
(4) (5) the current street or mailing address
and telephone number;
(5) (6) the county, counties, district or other
geographic area or political subdivision being represented;
(6) (7) the name of the individual being
replaced if the appointment is not an initial appointment;
and
(8) a designation indicating those individuals being
appointed as an interim appointment or a subsequent interim
appointment;
(7) (9) the commencement and ending date of
the term of office; and
(10) evidence that the appointee meets the statutory and
constitutional qualifications established for the office.
(B) When an appointment has been confirmed by the Senate,
evidence of such confirmation shall be transmitted to the Secretary
of State by the Clerk of the Senate and the Secretary of State must
thereafter obtain the necessary oath and evidence of bond if
required. The official record for purposes of establishing a term
of office shall be that term designated in the Senate Journal.
The taking of the oath of office and filing of any requisite bond
shall fully vest the person appointed with the full rights, privileges
and powers of the office. The notice of confirmation transmitted by
the Senate shall be conclusive as to the validity of an appointment
and the issuance of a commission by the Secretary of State after
obtaining the requisite documentation is a ministerial act."
SECTION 2. Section 1-3-240(C)(2) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(C) Commission Director of the
Department of Revenue and Taxation;"
SECTION 3. Section 1-7-920(3) of the 1976 Code is amended
to read:
"(3) The Executive Director of the South Carolina
Criminal Justice Academy Director of the Department of
Public Safety shall serve during the term for which he is
appointed;"
SECTION 4. Section 1-7-940 of the 1976 Code is amended to
read:
"Section 1-7-940. (A) The commission has the
following duties:
(1) coordinate all administrative functions of the offices of
the solicitors and any affiliate services operating in conjunction with
the solicitors' offices;
(2) submit the budgets of the solicitors and their affiliate
services to the General Assembly;
(3) encourage and develop legal education programs and
training programs for solicitors and their affiliate services, organize
and provide seminars to help increase the effectiveness and
efficiency of the prosecution of criminal cases in this State, and act
as a clearinghouse and distribution source for publications involving
solicitors and their affiliate services and provide legal updates on
matters of law affecting the prosecution of cases in this State;
(4) provide blank indictments for the circuit solicitors;
(5) provide information, training, and technical assistance to
the Victim/Witness Assistance units within the solicitors'
offices.
(B) Nothing in this section may be construed to displace or
otherwise affect the functions and responsibilities of the State
Victim/Witness Assistance Program as established in Section
16-3-1410."
SECTION 5. Section 1-11-310(E) and (F) of the 1976 Code, as
last amended by Act 449 of 1992, are further amended to read:
"(E) Titles to school buses and service vehicles operated
by the State Department of Education and vehicles operated by the
South Carolina Department of Highways and Public
Transportation must be retained by those agencies.
(F) Exceptions to requirements in subsections (B) and (C) must
be approved by the director of the Division of Motor Vehicle
Management. Requirements in subsection (B) do not apply to the
Division of State Development Board of the
South Carolina Department of Commerce."
SECTION 6. Section 1-19-60 of the 1976 Code is amended to
read:
"Section 1-19-60. The State Reorganization Commission
shall be is composed of nineteen members, who
shall serve for terms of two years, of whom.
one One shall must be the chairman
of the Ways and Means Committee of the House of Representatives,
one shall must be the chairman of the Judiciary
Committee of the House of Representatives, five shall
must be members of the House of Representatives elected
by the House of Representatives, one shall must be
the chairman of the Finance Committee of the Senate, one
shall must be the chairman of the Judiciary
Committee of the Senate, five shall must be
members of the Senate elected by the Senate, and five shall
must be appointed by the Governor, one of whom may be
a member of the State Development the Secretary of
Commerce or his designee who shall serve ex officio or
some other a member of a state board, who shall
serve ex officio. In the case of a vacancy in the membership of the
commission it shall must be filled in the manner of
the original election or appointment."
SECTION 7. Section 1-23-10(4) of the 1976 Code is amended
to read:
"(4) `Regulation' means each agency statement of general
public applicability that implements or prescribes law or policy or
practice requirements of any agency. 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, and
orders of the Board of Paroles and Pardons or
and rules of the Department of Probation, Parole
and Pardon Board Services; orders of the
supervisory or administrative agency of any penal, mental or
medical institution, in respect to the institutional supervision,
custody, control, care or treatment of inmates, prisoners or patients
therein; decisions of the governing board of any 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 Human Affairs
Commission relating to firms or individuals; advisory opinions of
any agencies; and other agency actions relating only to specified
individuals."
SECTION 8. Section 1-23-111(A) of the 1976 Code, as added
by Act 181 of 1993, is amended to read:
"Section 1-23-111. (A) When a public hearing is held
pursuant to this article involving the promulgation of regulations by
a department for which the governing authority is a single director,
it shall be conducted by an administrative law judge assigned by the
chief judge. When a public hearing is held pursuant to this article
involving the promulgation of regulations by a department for
which the governing authority is a board or commission, it shall be
conducted by the board or commission, with the chairman or
his designee from the board presiding. The administrative law
judge, chairman, or chairman chairman's
designee, as the presiding official, shall ensure that all persons
involved in the public hearing on the regulation are treated fairly
and impartially. The agency shall submit into the record the
jurisdictional documents, including the statement of need and
reasonableness, and any written exhibits in support of the proposed
regulation. The agency may also submit oral evidences. Interested
persons may present written or oral evidence. The presiding
official shall allow questioning of agency representatives or
witnesses, or of interested persons making oral statements, in order
to explain the purpose or intended operation of the proposed
regulation, or a suggested modification, or for other purposes if
material to the evaluation or formulation of the proposed regulation.
The presiding official may limit repetitive or immaterial statements
or questions. At the request of the presiding official or the agency,
a transcript of the hearing must be prepared."
SECTION 9. Section 1-23-600(A) of the 1976 Code, as added
by Section 19 of Act 181 of 1993, is amended to read:
"(A) The hearings and proceedings concerning contested
cases must be transcribed and are open to the public unless
confidentiality is allowed or required by law. The presiding
administrative law judge shall render the decision in a written order.
Except as provided in this subsection, The
the decisions or orders of these administrative law judges
are not required to be published but are available for public
inspection unless the confidentiality thereof is allowed or required
by law. All decisions relating to the Department of Revenue
must be made public; however, where confidentiality requires,
decisions may be redacted."
SECTION 10. Section 1-30-10 (A) and (B) of the 1976 Code, as
added by Act 181 of 1993, is amended to read:
"(A) There are hereby created, within the
executive branch of the state government, the following
departments:
(1) Department of Agriculture;
(2) Department of Alcohol and Other Drug Abuse Services;
(3) Department of Commerce;
(4) Department of Corrections;
(5) Department of Disabilities and Special Needs;
(6) Department of Education;
(7) Department of Health and Environmental Control;
(8) Department of Health and Human Services;
(9) Department of Insurance;
(10) Department of Juvenile Justice;
(11) Department of Labor, Licensing, and Regulation;
(12) Department of Mental Health;
(13) Department of Natural Resources;
(14) Department of Parks, Recreation and Tourism;
(15) Department of Probation, Pardon and Parole
and Pardon Services;
(16) Department of Public Safety;
(17) Department of Revenue and Taxation;
(18) Department of Social Services;
(19) Department of Transportation.
(B)(1) The governing authority of each department shall be
either:
(i) a director, and or in the case of the
Department of Commerce, the secretary, or in the case of the
Department of Insurance, the commissioner, who must be
appointed by the Governor with the advice and consent of the
Senate, subject to removal from office by the Governor pursuant to
provisions of Section 1-3-240; or,
(ii) a seven member board to be appointed and constituted
in a manner provided for by law; or,
(iii) in the case of the Department of Agriculture and the
Department of Education, the State Commissioner of Agriculture
and the State Superintendent of Education, respectively, elected to
office under the Constitution of this State.
(2) In making appointments to boards and for department
directors, race, gender, and other demographic factors should be
considered to assure nondiscrimination, inclusion, and representation
to the greatest extent possible of all segments of the population of
this State; however, consideration of these factors in no way creates
a cause of action or basis for an employee grievance for a person
appointed or for a person who fails to be appointed. The Governor
in making the appointments provided for by this section shall
endeavor to appoint individuals who have demonstrated exemplary
managerial skills in either the public or private sector."
SECTION 11. Section 1-30-10(f)(2)(iii) of the 1976 Code, as
added by Act 181 of 1993, is amended to read:
"(iii) Department of Probation, Pardon and Parole
and Pardon Services created pursuant to Section 1-30-85 by
the director of the former Department of Probation, Pardon
and Parole and Pardon;"
SECTION 12. Section 1-30-35 of the 1976 Code, as added by
Act 181 of 1993, is amended to read:
"Section 1-30-35. Effective on July 1, 1993, the
following agencies, boards, and commissions, including all of the
allied, advisory, affiliated, or related entities as well as the
employees, funds, property, and all contractual rights and
obligations associated with any such the agency,
except for those subdivisions specifically included under another
department, are hereby transferred to and incorporated in
and shall must be administered as part of the
Department of Disabilities and Special Needs to be initially divided
into divisions for Mental Retardation, Head and Spinal Cord Injury,
and Autism; provided,. However, that the
board of the former Department of Mental Retardation as
constituted on June 30, 1993, and thereafter after that
time, under the provisions of Section 44-19-10
44-20-10, et seq., shall be is the governing
authority for the department.
(A) Department of Mental Health Autism programs, formerly
provided for at Section 44-9-10, et seq.;
(B) Head and Spinal Cord Injury Information System, formerly
provided for at Section 44-38-10, et seq.;
(C) Department of Mental Retardation, formerly provided for at
Section 44-19-10 44-20-10, et seq."
SECTION 13. Section 1-30-85 of the 1976 Code, as added by
Act 181 of 1993, is amended to read:
"Section 1-30-85. Department of Probation, Pardon
and Parole and Pardon Services.
Effective on July 1, 1993, the following agencies, boards, and
commissions, including all of the allied, advisory, affiliated, or
related entities as well as the employees, funds, property,
and all contractual rights and obligations associated with any
such the agency, except for those subdivisions
specifically included under another department, are hereby
transferred to and incorporated in and shall must be
administered as part of the Department of Probation, Pardon
and Parole and Pardon Services:
Department of Probation, Pardon and Parole and
Pardon Services, formerly provided for at Section 24-21-10, et
seq."
SECTION 14. Section 2-7-73(A) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(A) Any A bill or resolution which
would mandate a health coverage or offering of a health coverage
by an insurance carrier, health care service contractor, or health
maintenance organization as a component of individual or group
policies, must have attached to it a statement of the financial impact
of the coverage, according to the guidelines enumerated in
subsection (B). This financial impact analysis must be conducted
by the Division of Research and Statistical Services and signed by
an authorized agent of the Department of Insurance, or his
designee. The statement required by this section must be
delivered to the Senate or House committee to which any
a bill or resolution is referred, within thirty days of the
written request of the chairman of such the
committee."
SECTION 15. Section 2-13-190 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 2-13-190. Within five days after receiving
such the page proofs corrected from the Code
Commissioner, the Office of Legislative Printing and Information
Technology Resources (LPITR) shall print the same and shall
deliver as many copies to the Code Commissioner as the
commissioner may order. The Code Commissioner on receipt of
such these copies shall send a copy to each of the
following officers: The Governor, Supreme Court Justices, Clerk of
the Supreme Court, Court of Appeals Judges
judges, Clerk of the Court of Appeals, circuit judges,
circuit solicitors, county Administrative Law Judge
Division judges, county solicitors, clerk of the court of each
county, judge of probate of each county, Attorney General,
Secretary of State, Comptroller General, Adjutant General, State
Treasurer, Chief Bank Examiner, Department of the
Revenue and Taxation, Director of the Department of
Transportation, State Health Officer, Director of the Department of
Natural Resources, Chairman of the Public Service Commission,
Commissioner of Agriculture, Director Chief Insurance
Commissioner of the Department of Insurance, State Budget
and Control Board, State Superintendent of Education, State
Librarian, Clerk of the House of Representatives, Clerk of the
Senate, Director of the South Carolina Archives Department,
Director of the Department of Public Safety, and the
members of the General Assembly. Any magistrate may obtain a
copy of advance sheets of statutes by sending his name, address,
and term to the Code Commissioner."
SECTION 16. Section 2-13-240(a) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(a) Sets of the Code of Laws of South Carolina, 1976,
shall must be distributed by the Legislative Council
as follows: Governor, three; Lieutenant Governor, two; Secretary of
State, three; Treasurer, one; Attorney General, fifty; Adjutant
General, one; Comptroller General, two; Superintendent of
Education, two; Commissioner of Agriculture, two; each member of
the General Assembly, one; office of the Speaker of the House of
Representatives, one; Clerk of the Senate, one; Clerk of the House
of Representatives, one; each committee room of the General
Assembly, one; each member of the Legislative Council, one; Code
Commissioner, one; Legislative Council, ten; Supreme Court,
fourteen; Court Administration Office, five; each Court of
Appeals judge, one; each circuit court judge, one; each circuit
court solicitor, one; each family court judge, one; each county
court Administrative Law Judge Division judge, one;
College of Charleston, one; The Citadel, two; Clemson University,
three; Coastal Carolina University, one; Francis Marion
College, one; Lander College, one; Medical University of South
Carolina, two; South Carolina State College, two; University of
South Carolina, four; each regional campus of the University of
South Carolina, one; University of South Carolina Law School,
forty-six; Winthrop College, two; each technical college or center,
one; each county governing body, one; each county clerk of court
and register of mesne conveyances where such these
offices are separate, one; each county auditor, one; each county
coroner, one; each county magistrate, one; each county master in
equity, one; each county probate judge, one; each county public
library, one; each county sheriff, one; each public defender, one;
each county superintendent of education, one; each county treasurer,
one; Library of Congress, three; United States Supreme Court, one;
each member of Congress from South Carolina, one; each state
library which furnishes this State a free set of its Code of Laws,
one; Division of Aeronautics of the Department of Commerce, one;
Department of Alcohol and Other Drug Abuse Services, one;
Department of Archives and History, one; Board of Bank
Control Financial Institutions, one; Commissioner of
Banking, one; Budget and Control Board (Auditor, six; General
Services Division, six; Personnel Division, one; Research and
Statistical Services Division, one; Retirement System, one);
Children's Bureau, one; Department of Consumer Affairs,
one; Department of Corrections, two; Criminal Justice Academy,
one; Department of Commerce, five; Employment Security
Commission, two; Ethics Commission, one; Forestry Commission,
one; Department of Health and Environmental Control, five;
Department of Transportation, five; Department of Public Safety,
five; Human Affairs Commission, one; Workers' Compensation
Commission, seven; Department of Insurance, two; Department of
Juvenile Justice and Aftercare, one; Department of Labor,
Licensing, and Regulation, two; South Carolina
State Law Enforcement Division, four; Legislative Audit
Council, one; State Library, three; Department of Mental Health,
three; Department of Disabilities and Special Needs, five; Ports
Authority, one; Department of Probation, Parole and Pardon
Services, two; Public Service Commission, three;
Reorganization Commission, one; Department of Social Services,
two; Department of Revenue and Taxation, six; Board for
Technical and Comprehensive Education, one; Veterans' Affairs
Division of the Governor's office, one; Vocational Rehabilitation,
one; Department of Natural Resources, four."
SECTION 17. Section 2-19-10 of the 1976 Code is amended to
read:
"Section 2-19-10. (A) Whenever an election is
to be held by the General Assembly in Joint Session, including
members of the judiciary, a joint committee, composed of eight
members, four of whom shall must be members of
the House of Representatives and four of whom shall
must be members of the Senate, shall must
be appointed to consider the qualifications of the candidates. Each
body shall determine how its respective members shall
must be selected. Each joint committee shall meet as soon
after its appointment as may be practicable and shall elect one of its
members as chairman, one as secretary, and such other
officers as it may deem considers desirable.
(B) Notwithstanding the provisions of subsection (A), the
membership of the Committee to Consider the Qualifications of
Candidates for the Public Service Commission must be as
established by Section 58-3-26."
SECTION 18. Section 4-10-25 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 4-10-25. The gross proceeds of sales of tangible
personal property delivered after the imposition date of the tax
levied under Section 4-10-20 in a county, either under the terms of
a construction contract executed before the imposition date, or a
written bid submitted before the imposition date, culminating in a
construction contract entered into before or after the imposition
date, are exempt from the local sales and use tax provided in
Section 4-10-20 if a verified copy of the contract is filed with the
South Carolina Department of Revenue and Taxation within
six months after the imposition of the local sales and use tax."
SECTION 19. Section 4-10-60(D) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(D) The provisions of subsection (A) do not apply if the
total number of county areas adopting the sales and use tax
authorized by this chapter, which are projected by the Department
of Revenue and Taxation to collect five million dollars or
more, generated fifty percent or less during the most currently
available fiscal year of the total statewide collections from the levy
of a one percent sales and use tax, then those county areas
generating five million dollars or more must be assessed five
percent of the amount generated in the county area, and that amount
must be used as a supplement to those county areas generating less
than the minimum distribution. The supplement to those county
areas generating less than the minimum distribution must be
distributed so that each county area receives an amount equal to
what its percentage of population bears to the total population in all
of the county areas generating less than the minimum distribution
which have implemented the sales and use tax authorized by this
chapter. Once the amount of the supplement has been determined
for each of the county areas to be supplemented, then the
supplement must be distributed to the eligible units within the
county area based on population as provided for in this chapter.
However, the supplement to the county area combined with
collections within the county area may not exceed the minimum
distribution."
SECTION 20. Section 4-10-65 of the 1976 Code, as added by
Section 99, Part II, Act 164 of 1993, is amended to read:
"Section 4-10-65. Funds collected by the Tax
Commission Department of Revenue from the local
option sales tax which are not identified as to the governmental unit
due the tax, shall, after a reasonable effort by the
commission department to determine the appropriate
governmental unit, must be deposited to a local option
supplemental revenue fund. These funds must be distributed in
accordance with Section 4-10-60 to those counties generating less
than the minimum distribution."
SECTION 21. Section 4-10-80 of the 1976 Code, as amended by
Section 99, Part II, Act 164 of 1993, is amended to read:
"Section 4-10-80. Annually by August fifteenth the State
Treasurer shall report to the county chief administrative officers,
county treasurers, and municipal clerks in those county areas which
levy the sales and use tax authorized by this chapter the total
amount of revenue collected as reported by the Department of
Revenue and Taxation in the county area for the preceding
fiscal year."
SECTION 22. Section 4-10-90 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 4-10-90. (A) The Department of Revenue and
Taxation shall administer and collect the local sales and use tax
in the manner that sales and use taxes are administered and
collected pursuant to Chapter 36 of Title 12. The commission may
prescribe forms and promulgate regulations in conformity with this
chapter, including tables prescribing the amount to be added to the
sales price. The county shall notify the Department of Revenue
and Taxation and the State Treasurer through delivery of a
certified copy of a resolution adopted by the county by December
thirty-first following the referendum for the tax to be imposed May
first. Failure to deliver the resolution by December thirty-first
causes a delay of the imposition until the first day of May of the
next calendar year. Notwithstanding the provisions of this
subsection, the local sales and use tax must not be imposed before
July first following the first referendum held pursuant to Section
4-10-30.
(B) All revenues collected by the Department of Revenue
and Taxation on behalf of a county area pursuant to this
chapter must be remitted to the State Treasurer to be credited to a
Local Sales and Use Tax Fund which is separate and distinct from
the state general fund. After deducting the amount of refunds made
and the costs to the Department of Revenue and Taxation of
administering the tax, not to exceed one-half of one percent of the
fund or seven hundred fifty thousand dollars, whichever is greater,
the State Treasurer shall deposit the revenue into the Local Sales
and Use Tax Fund which consists of two separate funds: the
Property Tax Credit Fund and the County/Municipal Revenue Fund.
The revenue collected pursuant to this chapter must be allocated to
each fund as follows:
(1) During the first year after the effective date of this act,
sixty-three percent to the Property Tax Credit Fund and thirty-seven
percent to the County/Municipal Revenue Fund.
(2) During the second year after the effective date of this act,
sixty-five percent to the Property Tax Credit Fund and thirty-five
percent to the County/Municipal Revenue Fund.
(3) During the third year after the effective date of this act,
sixty-seven percent to the Property Tax Credit Fund and thirty-three
percent to the County/Municipal Revenue Fund.
(4) During the fourth year after the effective date of this act,
sixty-nine percent to the Property Tax Credit Fund and thirty-one
percent to the County/Municipal Revenue Fund.
(5) During the fifth year after the effective date of this act,
and each year thereafter, seventy-one percent to the Property Tax
Credit Fund and twenty-nine percent to the County/Municipal
Revenue Fund. The allocation of revenue to each fund provided for
in this section must remain uniform as to the percentage allocated to
each fund regardless of the year in which a county adopts the local
sales and use tax. The State Treasurer shall distribute monthly the
revenues according to the provisions of this chapter.
(C) The Department of Revenue and Taxation shall
furnish data to the State Treasurer and to the governing bodies of
the counties and municipalities receiving revenues for the purpose
of calculating distributions and estimating revenues. The
information which may be supplied to counties and municipalities
includes, but is not limited to, gross receipts, net taxable sales, and
tax liability by taxpayers. Information by taxpayer received by
appropriate county or municipal officials is considered confidential
and is governed by the provisions of Section 12-54-240. A person
violating this section is subject to the penalties provided in Section
12-54-240. The State Treasurer may correct misallocations from
the Property Tax Credit Fund and County/Municipal Revenue Fund
by adjusting subsequent allocations, but these adjustments may be
made only in allocations made in the same fiscal year as the
misallocation." SECTION 23. Section 4-29-67 of the 1976
Code, as last amended by Act 467 of 1994, is further amended to
read:
"Section 4-29-67. (A) Notwithstanding the provisions of
Section 4-29-60, in the case of a financing agreement in the form of
one or more lease agreements for a project qualifying under
subsection (B), the county and the investor may enter into an
inducement agreement which provides for payment in lieu of taxes
(fee) as provided in this section. All references in this section to a
lease agreement shall be deemed also to refer to a lease purchase
agreement.
(B) In order for property to qualify for the fee as provided in
subsection (D)(2):
(1) Title to the property must be held by the county or in the
case of a project located in an industrial development park as
defined in Section 4-1-170, title may be held by more than one
county, provided each county is a member of the industrial
development park. Any real property transferred to the county must
include a legal description and plat of the property.
(2) The investment must be a project which is located in a
single county or an industrial development park as defined in
Section 4-1-170. A project located on a contiguous tract of land in
more than one county, but not in such an industrial development
park, may qualify for the fee provided (a) the counties agree on the
terms of the fee and the distribution of the fee payment; (b) the
minimum millage rate cannot be lower than the millage rate
applicable to the county in which the greatest amount of investment
occurs; and (c) all such counties must be parties to all agreements
establishing the terms of the fee.
(3) The minimum level of investment must be at least
eighty-five million dollars and must be invested within the time
period provided in subsection (C).
(4) (a) Except as provided in subsection (B)(4)(b), the
investment must be made by a single entity. For purposes of this
section, (i) any partnership or other association which properly files
its South Carolina income tax returns as a partnership for South
Carolina income tax purposes will be treated as a single entity and
as a partnership, and (ii) any corporation or other association which
properly files its South Carolina income tax returns as a corporation
for South Carolina income tax purposes will be treated as a single
entity and as a corporation.
(b) (i) The members of the same controlled group of
corporations can qualify for the fee if the combined investment in
the county by the members meets the minimum investment
requirements. The county and the members who are part of the
inducement agreement may agree that any investments by other
members of the controlled group within the time periods provided
in subsections (C)(1) and (C)(2) shall qualify for the payment
regardless of whether the member was part of the inducement
agreement; provided, however, in order to qualify for the fee, such
other members of the controlled group must be specifically
approved by the county and must agree to be bound by agreements
with the county relating to the fee; provided, however, such
controlled group members need not be bound by agreements, or
portions of agreements, to the extent such agreements do not affect
the county; provided, further, that with the consent of the county,
such members will not be bound by agreements or portions of
agreements which do affect the county. Except as otherwise
provided in subsection (B)(2), the investments under this subsection
(B)(4)(b) must be within the same county or industrial park. Any
controlled group member which is claiming the fee must invest at
least ten million dollars in the county or industrial park.
(ii) The Department of Revenue and Taxation must
be notified in writing of all members which have investments
subject to the fee before or within thirty days after the execution of
the lease agreement covering the investment by the member. The
Department of Revenue and Taxation may extend the
thirty-day period upon written request. Failure to meet this notice
requirement will not adversely affect the fee, but a penalty may be
assessed by the Department of Revenue and Taxation for
late notification for up to ten thousand dollars a month or portion of
a month with the total penalty not to exceed one hundred twenty
thousand dollars. Members of the controlled group must provide
the information considered necessary by the Department of Revenue
and Taxation to ensure that the investors are part of a
controlled group.
(iii) If at any time the controlled group or any former
member (who has left the controlled group) no longer has the
minimum eighty-five million dollars of investment (without regard
to depreciation), that group or former member no longer holding
the minimum amount of investment as provided in subsection
(B)(3) (without regard to depreciation) will no longer qualify for
the fee.
(iv) For purposes of this section, "controlled
group" or "controlled group of corporations" shall
have the meaning provided under Section 1563(a) of the Internal
Revenue Code as defined in Chapter 7 of Title 12 as of the date of
the execution of the inducement agreement (without regard to
amendments or replacements thereof), without regard to subsection
(b) of such Section 1563.
(C) (1) From the end of the property tax year in which the
investor and the county execute an inducement agreement, the
investor has seven years in which to enter into an initial lease
agreement with the county.
(2) From the end of the property tax year in which the
investor and the county execute the initial lease agreement, the
investor has five years in which to complete its investment for
purposes of qualifying for this section. If the investor does not
anticipate completing the project within five years, the investor may
apply to the county before the end of the five-year period for an
extension of time to complete the project. If the county agrees to
grant the extension, the county must do so in writing and a copy
must be delivered to the Department of Revenue and
Taxation within thirty days of the date the extension was
granted. The extension may not exceed two years in which to
complete the project.
There is no extension allowed for the five-year period in which
to meet the minimum level of investment. If the minimum level of
investment is not met within five years, all property under the lease
agreement or agreements reverts retroactively to the payments
required by Section 4-29-60. The difference between the fee
actually paid by the investor and the payment which is due under
Section 4-29-60 is subject to interest as provided in Section
12-43-305.
Unless property qualifies as replacement property under a
contract provision enacted pursuant to subsection (F)(2), any
property placed in service after the five-year period, or seven years
in the case of a project which has received an extension, is not part
of the fee agreement under subsection (D)(2) and is subject to the
payments required by Section 4-29-60 if the county has title to the
property, or to property taxes as provided in Chapter 37 of Title 12
if the investor has title to the property.
(3) The annual fee provided by subsection (D)(2) is available
for no more than twenty years. For projects which are completed
and placed in service during more than one year, each year's
investment may be subject to the fee in subsection (D)(2) for
twenty years to a maximum total of twenty-seven years for the fee
for a single project which has been granted an extension.
(D) The inducement agreement must provide for fee payments,
to the extent applicable, as follows:
(1) (a) Any property, title to which is transferred to the
county, will be subject, before being placed in service, to an annual
fee payment as provided in Section 4-29-60.
(b) Any undeveloped land, title to which is transferred to
the county, will be subject, before being developed and placed in
service, to an annual fee payment as provided in Section 4-29-60.
The time during which fee payments are made under Section
4-29-60 will not be considered part of the maximum periods
provided in subsections (C)(2) and (C)(3), and no lease shall be
considered an "initial lease agreement" for purposes of
this section unless and until the first day of the calendar year for
which a fee payment is due under subsection (D)(2) in connection
with such lease.
(2) After property qualifying under subsection (B) is placed
in service, an annual fee payment determined in accordance with
one of the following is due:
(a) an annual payment in an amount not less than the
property taxes that would be due on the project if it were taxable,
but using an assessment ratio of not less than six percent, and a
fixed millage rate as provided in subsection (G), and a fair market
value estimate determined by the South Carolina Department of
Revenue and Taxation as follows:
(i) for real property using the original income tax basis
for South Carolina income tax purposes without regard to
depreciation (provided, however, if real property is constructed for
the fee or is purchased in an arm's length transaction, fair market
value will be deemed to equal the original income tax basis,
otherwise the Department of Revenue and Taxation will
determine fair market value by appraisal); and
(ii) for personal property using the original income tax
basis for South Carolina income tax purposes less depreciation
allowable for property tax purposes, except that the investor is not
entitled to any extraordinary obsolescence.
(b) an annual payment based on any alternative
arrangement yielding a net present value of the sum of the fees for
the life of the agreement not less than the net present value of the
fee schedule as calculated under subsection (D)(2)(a). Net present
value calculations performed under this subsection must use a
discount rate equivalent to the yield in effect for new or existing
United States Treasury bonds of similar maturity as published
during the month in which the inducement agreement is executed.
If no yield is available for the month in which the inducement
agreement is executed, the last published yield for the appropriate
maturity must be used. If there are no bonds of appropriate
maturity available, bonds of different maturities may be averaged to
obtain the appropriate maturity.
(c) an annual payment using a formula that results in a fee
not less than the amount required pursuant to subsection (D)(2)(a),
except that every fifth year the applicable millage rate is allowed to
increase or decrease in step with the average actual millage rate
applicable in the district where the project is located based on the
preceding five-year period.
(3) At the conclusion of the payments determined pursuant to
items (1) and (2) of this subsection, an annual payment equal to the
taxes due on the project as if it were taxable. When the property is
no longer subject to the fee under subsection (D)(2), the fee or
property taxes must be assessed:
(a) with respect to real property, based on the fair market
value as of the latest reassessment date for similar taxable property;
and
(b) with respect to personal property, based on the then
depreciated value applicable to such property under the fee, and
thereafter continuing with the South Carolina property tax
depreciation schedule.
(E) Calculations pursuant to subsection (D)(2) must be made on
the basis that the property, if taxable, is allowed all applicable
property tax exemptions except the exemption allowed under
Section 3(g) of Article X of the Constitution of this State and the
exemption allowed pursuant to Section 12-37-220B (32) and (34).
(F) With regard to calculation of the fee provided in subsection
(D)(2), the inducement agreement may provide for the disposal of
property and the replacement of property subject to the fee as
follows:
(1) (a) If an investor disposes of property subject to the fee,
the fee must be reduced by the amount of the fee applicable to that
property.
(b) Property is disposed of only when it is scrapped or sold
in accordance with the lease agreement.
(c) If the investor used any method to compute the fee
other than that provided in subsection (D)(2)(a), the fee on the
property which was disposed of must be recomputed in accordance
with subsection (D)(2)(a) and to the extent that the amount which
would have been paid under subsection (D)(2)(a) exceeds the fee
actually paid by the investor, the investor must pay the difference
with the next fee payment due after the property is disposed of. If
the investor used the method provided in subsection (D)(2)(c), the
millage rate provided in subsection (D)(2)(c) must be used to
calculate the amount which would have been paid under subsection
(D)(2)(a).
(d) If there is no provision in the agreement dealing with
the disposal of property in accordance with this subsection, the fee
remains fixed and no adjustment to the fee is allowed for disposed
property.
(2) Any property which is placed in service as a replacement
for property which is subject to the fee payment may become part
of the fee payment as provided in this item:
(a) Replacement property does not have to serve the same
function as the property it is replacing. Replacement property
qualifies for fee treatment provided in subsection (D)(2) only up to
the original income tax basis of fee property which is being
disposed of in the same property tax year. More than one piece of
property can replace a single piece of property. To the extent that
the income tax basis of the replacement property exceeds the
original income tax basis of the property which it is replacing, the
excess amount is subject to payments as provided in Section
4-29-60. Replacement property is entitled to the fee payment for
the period of time remaining on the twenty-year fee period for the
property which it is replacing; provided, however, that where a
single piece of property replaces two or more pieces of property,
such fee period shall be measured from the earliest of the dates on
which the replaced pieces of property were placed in service.
(b) The new replacement property which qualifies for the
fee provided in subsection (D)(2) is recorded using its income tax
basis and the fee is calculated using the millage rate and assessment
ratio provided on the original fee property. The fee payment for
replacement property must be based on subsection (D)(2)(a) or
(D)(2)(c), if the investor originally used this method, without regard
to present value.
(c) In order to qualify as replacement property title to the
replacement property must be held by the county.
(d) If there is no provision in the inducement agreement
dealing with replacement property, any property placed in service
after the five-year period, or seven years in the case of a project
which has received an extension, is subject to the payments required
by Section 4-29-60 if the county has title to the property, or to
property taxes as provided in Chapter 37 of Title 12 if the investor
has title to the property.
(G) (1) The county and the investor may enter into an
agreement to establish the millage rate (millage rate agreement) for
purposes of calculating payments under subsection (D)(2)(a) and the
first five years under subsection (D)(2)(c). This millage rate
agreement must be executed on the date of the inducement
agreement or anytime thereafter up to and including the date of the
initial lease agreement. This millage rate agreement may be a
separate agreement or may be made a part of either the inducement
agreement or the initial lease agreement.
(2) The millage rate cannot be lower than the cumulative
property tax millage rate legally levied by or on behalf of all taxing
entities within which the subject property is to be located which is
the cumulative rate applicable on the thirtieth day of June
preceding the calendar year in which the millage rate agreement is
executed. If no millage rate agreement is executed before the date
of the initial lease agreement, the millage rate is deemed to be the
cumulative property tax millage rate applicable on the thirtieth day
of June preceding the calendar year in which the initial lease
agreement is executed by the parties.
(H) (1) Upon agreement of the parties, and except as provided
in subsection (H)(2), an inducement agreement, a millage rate
agreement or both may be amended or terminated and replaced with
regard to all matters including, but not limited to, the addition or
removal of controlled group members; provided, however, that no
such amendment or termination and replacement may take place
after the initial lease agreement date.
(2) No amendment or replacement of an inducement
agreement or millage rate agreement may be used to change the
millage rate or discount rate under any such agreement.
(I) Any and all investment expenditures made or incurred by
any investor in connection with a project (or relevant phase thereof
in connection with a project completed and placed in service in
more than one year) shall qualify as expenditures subject to the fee
in subsection (D)(2), so long as such expenditures are made:
(1) after the county takes action reflecting or identifying the
project or proposed project or investment including, but not limited
to, the adoption of an inducement or similar resolution by county
council; and
(2) before the end of the applicable five or seven-year period
referenced in subsection (C)(2) and (C)(3).
An inducement agreement must be executed within two years
after the date on which the county takes action reflecting or
identifying the project or proposed project or investment including,
but not limited to, the adoption of an inducement or similar
resolution by county council; otherwise, only investment
expenditures made or incurred by any investor after the date of such
inducement agreement in connection with a project shall qualify as
expenditures subject to the fee in subsection (D)(2).
(J) (1) Subject to subsection (K), project investment
expenditures which are incurred within the applicable time period
provided in subsection (I) by an entity whose investments are not
being computed in the level of investment for purposes of
subsections (B) or (C) shall qualify as investment expenditures
subject to the fee in subsection (D)(2) where:
(a) such expenditures are part of the original cost of the
property which is transferred, within the applicable time period
provided in subsection (I), to one or more other entities which are
members of the same controlled group as the transferor entity and
whose investments are being computed in the level of investment
for purposes of subsections (B) or (C); and
(b) such property would have qualified for the fee in
subsection (D)(2) if it had been initially acquired by the transferee
entity rather than the transferor entity.
(2) The income tax basis of such property immediately before
such transfer must equal the income tax basis of such property
immediately after such transfer; provided, however, that to the
extent income tax basis of such property immediately after such
transfer unintentionally exceeds the income tax basis of such
property immediately before such transfer, such excess shall be
subject to payments under Section 4-29-60.
(3) The county must agree to any inclusion in the fee of the
property described in subsection (J)(1).
(K) (1) Property which has been previously subject to property
taxes in South Carolina will not qualify for the fee except as
provided in this subsection:
(a) Land, excluding improvements thereon, on which a
new project will be located may qualify for the fee even if it has
previously been subject to South Carolina property taxes;
(b) Property which has been subject to South Carolina
property taxes, but which has never been placed in service in South
Carolina, may qualify for the fee; and
(c) Property which has been placed in service in South
Carolina and subject to South Carolina property taxes which is
purchased in a transaction other than between any of the entities
specified in Section 267(b) of the Internal Revenue Code, as
defined under Chapter 7 of Title 12 as of the time of the transfer,
may qualify for the fee provided the fee-paying entity invests at
least an additional eighty-five million dollars in the project.
(2) Repairs, alterations, or modifications to real or personal
property which are not subject to a fee will not be eligible for a fee,
even if they are capitalized expenditures, except for modifications
to existing real property improvements which constitute an
expansion of such improvements.
(L) (1) For a project not located in an industrial development
park as defined in Section 4-1-170, distribution of the fee in lieu of
taxes on the project must be made in the same manner and
proportion that the millage levied for school and other purposes
would be distributed if the property were taxable. For this purpose,
the relative proportions must be calculated based on the following
procedure: holding constant the millage rate set in subsection (G)
and using all tax abatements automatically granted for taxable
property, a full schedule of the property taxes that would otherwise
have been distributed to each millage-levying entity in the county
must be prepared for the life of the agreement, up to twenty years
maximum. These separate schedules must then be reduced to
present value using the discount rate provided under subsection
(D)(2)(b). The resulting values for each millage-levying entity as a
percentage of the present value total for all such entities determines
each entity's relative shares of each year's fee payment for all
subsequent years of the agreement.
(2) For a project located in an industrial development park as
defined in Section 4-1-170, distribution of the fee in lieu of taxes
on the project must be made in the manner provided for by the
agreement establishing the industrial development park.
(M) As a directly foreseeable result of negotiating the fee, gross
revenue of a school district in which a project is located in any year
a fee negotiated pursuant to this section is paid, may not be less
than gross revenues of the district in the year before the first year
for which a fee in lieu of taxes is paid. In negotiating the fee, the
parties shall assume that the formulas for the distribution of state
aid at the time of the execution of the inducement agreement must
remain unchanged for the duration of the lease agreement.
(N) Projects on which a fee in lieu of taxes is paid pursuant to
this section are considered taxable property at the level of the
negotiated payments for purposes of bonded indebtedness pursuant
to Sections 14 and 15 of Article X of the Constitution of this State,
and for purposes of computing the index of taxpaying ability
pursuant to Section 59-20-20(3). However, for a project located in
an industrial development park as defined in Section 4-1-170,
projects are considered taxable property in the manner provided in
Section 4-1-170 for purposes of bonded indebtedness pursuant to
Sections 14 and 15 of Article X of the Constitution of this State,
and for purposes of computing the index of taxpaying ability
pursuant to Section 59-20-20(3). Provided, however, that the
computation of bonded indebtedness limitation is subject to the
requirements of Section 4-29-68(E).
(O) (1) (a) Any corresponding interest in each of an
inducement agreement, millage rate agreement, and lease agreement
(collectively referred to as a "fee interest"), representing
an investment of at least eighty-five million dollars (based on
income tax basis without regard to depreciation, and regardless of
whether such investment comprises all or part of a project), may be
transferred by any entity to any entity, whether or not such
transferee entity is a member of the same controlled group of which
the transferor entity is a member, and (b) any or all equity interests
in any partnership, corporation, or other association which properly
files its South Carolina income tax returns as a partnership or
corporation and which has an interest in an inducement agreement,
millage rate agreement, and lease agreement (such equity interests
collectively and individually referred to as an "entity
interest") may be transferred by any entity to any entity,
whether or not such transferee entity is a member of the same
controlled group of which the entity in which one or more interests
is being transferred is a member, provided that the entity or entities
whose entity interest is or are being transferred hold at least an
eighty-five million dollar investment (based on income tax basis
without regard to depreciation) in the project as of the time of the
transfer.
(2) Except for transfers pursuant to subsections (P) or (Q), no
transfer of a fee interest or entity interest may be undertaken:
(a) until twenty-four months after the project has been
placed in service, or relevant portion thereof in the case of a project
placed in service in more than one year; or
(b) within twenty-four months after a prior transfer of the
fee interest or entity interest to be transferred.
Provided, however, the running of such applicable twenty-four
month period shall be suspended for any period during which a
transferor's (under subsection (O)(2)(a)) or transferee's (under
subsection (O)(2)(b)) risk of loss with respect to the fee interest or
entity interest to be transferred is in fact substantially diminished
by:
(i) the holding by any entity of a contractual right to
require any transfer of such interest by an entity which is not a
member of the transferor's (under subsection (O)(2)(a)) or
transferee's (under subsection (O)(2)(b)) controlled group;
(ii) the holding by any entity which is not a member of
the transferor's (under subsection (O)(2)(a)) or transferee's (under
subsection (O)(2)(b)) controlled group of a right to acquire the
interest; or
(iii) a short sale or any similar transaction with respect to
the interest which is undertaken by the transferor (under subsection
(O)(2)(a)) or transferee (under subsection (O)(2)(b)) which is not a
member of any such transferee's or transferor's controlled group.
(3) All transfers of fee interests or entity interests authorized
under subsection (O)(1) must meet the following requirements:
(a) The county must approve such transfer within six
months prior to the transfer.
(b) The Department of Revenue and Taxation must
receive notification in writing of the identity of each transferee and
other information required by the Department of Revenue and
Taxation within thirty days after the transfer becomes effective.
The Department of Revenue and Taxation may extend the
thirty-day period upon written request. Failure to meet this notice
requirement will not adversely affect the fee, but a penalty may be
assessed by the Department of Revenue and Taxation for
late notification for up to ten thousand dollars a month or portion of
a month, with the total penalty not to exceed one hundred twenty
thousand dollars.
(c) No election under Internal Revenue Code of 1986, as
amended, Sections 338 or 754 may be made with respect to the
transfer.
(4) All transfers of fee interests authorized under subsection
(O)(1) must meet the following additional requirements:
(a) The transferor must pay the county any present value
fee differential (as defined under subsection (O)(5)) within ninety
days after the transfer. Failure to make this payment will result in
interest and penalties computed in the same manner and amounts
applicable to property tax.
(b) Each transferee must agree to be bound by the applicable
agreements constituting the fee arrangement as to that portion of the
project to which the transfer relates.
(c) The income tax basis of property interests which are
subject to the fee in the hands of the transferee immediately after
such transfer (i) cannot exceed the original income tax basis of
such property (without regard to depreciation) in the hands of the
transferor and (ii) cannot be less than the income tax basis of such
property (taking depreciation into account) in the hands of the
transferor immediately before transfer. The fee to be paid under
subsection (D) with respect to such transferred property interests for
the remaining term of the fee shall be recomputed using the
transferee's income tax basis immediately after the transfer; the
same millage rate and discount rate used by the transferor; and the
fee payment method provided under subsection (D)(2)(a); provided,
however, that if the pre-transfer fee payments were made under
subsection (D)(2)(c), then post-transfer fee payments must be made
under subsection (D)(2)(c), but without any present value method
applicable to such payments.
(5) The present value fee differential shall mean the amount by
which the fee that would have been paid under subsection
(D)(2)(a) with respect to the transferred fee interest until the time of
the transfer exceeds the amount which was paid under subsection
(D)(2)(b) or (D)(2)(c) until such time with respect to such fee
interest. If the investor used the method provided in subsection
(D)(2)(c), the millage rate provided in subsection (D)(2)(c) must be
used to calculate the amount which would have been paid under
subsection (D)(2)(a). If subsection (D)(2)(b) is not applicable to
such fee interest, or if no present value fee computation was used
under subsection (D)(2)(c), no present value fee differential shall be
required to be paid on a transfer thereof.
(P) (1) Any interests in an inducement agreement, millage rate
agreement, or lease agreement (collectively and individually
referred to as a "group fee interest") may be transferred
by any entity to:
(a) any corporation which is a member of the same
controlled group as the transferring corporation;
(b) any corporation which is a member of the same
controlled group as all of the partners comprising the transferring
partnership;
(c) any partnership all of the partners of which are
members of the same controlled group of which the transferring
corporation is a member; and
(d) any partnership all of the partners of which are
members of the same controlled group as all of the partners
comprising the transferring partnership.
(2) Transfers of group fee interests authorized under
subsection (P)(1) must meet the requirements set forth in
subsection (O)(3) and (O)(4); provided, however, in connection
with subsection (O)(4)(c), to the extent a present value fee payment
computation was used by the transferor, the transferee may, if the
county agrees, use a fee payment method based on any present
value fee payment method provided under subsection (D)(2). In
addition, such transfers must involve at least a ten million dollar
portion of the project investment or proposed investment (based on
income tax basis without regard to depreciation).
(3) Any transfer of an interest in an inducement agreement
must include a transfer of a corresponding interest in a millage rate
agreement, if any, and lease agreement, if any; any transfer of an
interest in a millage rate agreement must include a transfer of a
corresponding interest in an inducement agreement, and lease
agreement, if any; and any transfer of an interest in a lease
agreement must include a transfer of a corresponding interest in an
inducement agreement and millage rate agreement.
(4) One or more members of a controlled group, or a
partnership all of the partners of which are members of the same
controlled group, having an interest in a fee may enter into a
sublease, concerning some or all of the project, with any other
member of such controlled group, or with any partnership all the
partners of which are members of such controlled group, without
adversely affecting the fee and without regard to the other
provisions of this subsection (P); provided, however, that such
sublease may not transfer income tax ownership (as defined under
subsection (S)) to the portion of the project which is the subject of
the sublease, unless the applicable provisions of subsection (P) have
been met.
(Q) (1) Any or all equity interests in any partnership,
corporation, or other association which properly files its South
Carolina income tax returns as a partnership or corporation and
which has an interest in an inducement agreement, millage rate
agreement, lease agreement, or any or all of the foregoing (such
equity interests collectively and individually referred to as a
"group entity interest") may be transferred to:
(a) any corporation which is a member of the same
controlled group as the corporation in which an interest is being
transferred;
(b) any corporation which is a member of the same
controlled group as all of the partners comprising the partnership in
which an interest is being transferred;
(c) any partnership in which all of the partners are
members of the same controlled group as the corporation in which
an interest is being transferred; and
(d) any partnership in which all of the partners are
members of the same controlled group as all of the partners
comprising the partnership in which an interest is being transferred.
(2) Transfers of group entity interests authorized under
subsection (Q)(1) must meet the requirements set forth in subsection
(O)(3).
(R) For purposes of subsections (O)(1)(a) and (P), and subject to
subsection (U), each transferee shall, with respect to a project which
is the subject of a transfer, be considered to have made amounts of
qualified investments represented by the property interest which is
subject to the fee and which is transferred, without regard to
depreciation.
(S) (1) Notwithstanding anything in subsections (O), (P), and
(Q), a single entity, or two or more entities which are members of a
controlled group, may enter into any lending, financing, security or
similar arrangement, or succession of such arrangements, with any
financing entity, concerning all or part of a project, provided that
the income tax ownership of the property which is subject to the fee
payment under subsection (D)(2) is held, by the time the fee
payments relating to such property begin under subsection (D)(2),
by:
(a) the entity, or one or more members of the controlled
group, which entered into the inducement agreement with the
county;
(b) one or more transferees permitted under subsection
(O)(1)(a) or (P); or
(c) one or more of the entities referenced in items (a) and
(b).
Without limiting the foregoing, pursuant to any such arrangement
or arrangements, the inducement agreement may permit one or
more financing entities: (i) to make investments on behalf of such
income tax owner or owners which will qualify for the fee once the
property acquired by such investment is transferred to the county
and leased or subleased pursuant to the requirements of this section;
(ii) to transfer title to property to the county; and (iii) to enter into
a lease agreement with the county for the project or portion of the
project, provided the property which is subject to the fee is leased
or subleased, by the time the fee payments relating to such property
begin under subsection (D)(2), to the entity or entities which will be
treated as the income tax owners of the project. After the transfer
of title to the county and before subsection (D)(2) fee payments
begin, subsection (D)(1) fee payments must be made.
(2) Notwithstanding anything in subsections (B), (O), (P),
(Q), (S)(1), and (U), a single entity, or two or more entities which
are members of a controlled group (the "original
transferor"), may enter into any sale-leaseback arrangement
(including, without limitation, an assignment, a sublease, or similar
arrangement), or succession of such arrangements, with one or more
financing entities, concerning all or part of a project, regardless of
the identity of the income tax owner of the property which is
subject to the fee payment under subsection (D)(2), provided that
such sale-leaseback is executed prior to or contemporaneously with
the time that fee payments under subsection (D)(2) begin with
respect to property which is the subject of a sale-leaseback. Even
though income tax basis is changed for income tax purposes,
neither the original transfer to the financing entity nor the later
transfer from the financing entity back to the original transferor or
members of its controlled group, pursuant to terms in the
sale-leaseback agreement, will affect the amount of the fee due.
Nothing in this subsection (S)(2) shall prohibit a sale-leaseback
where income tax ownership of the property which is subject to the
fee payment under subsection (D)(2) is held only by the entities
identified in subsection (S)(1).
(3) All transfers undertaken with respect to the project to
effect a financing authorized under subsection (S)(2) must meet the
following requirements:
(a) The county must approve such transfer in advance.
(b) The Department of Revenue and Taxation must
receive notification in writing of the identity of each transferee and
other information required by the Department of Revenue and
Taxation within thirty days after the transfer becomes effective.
The Department of Revenue and Taxation may extend such
thirty-day period upon written request. Failure to meet this notice
requirement will not adversely affect the fee, but a penalty may be
assessed by the Department of Revenue and Taxation for
late notification for up to ten thousand dollars a month or portion of
a month up to a maximum penalty of one hundred twenty thousand
dollars.
(c) If the financing entity is the income tax owner of
property, the financing entity will be primarily liable for the fee as
to that portion of the project to which the transfer relates. The
original transferor must also agree to continue to be secondarily
liable for the payment of the fee as to that portion of the project to
which the transfer relates.
(d) Subsections (O) and (U) will apply to the extent:
(i) the financing entity transfers a fee interest to anyone
other than the original transferor or one or more members of its
controlled group, or
(ii) the lease to the original transferor is terminated and
the fee interest is not transferred back to the original transferor or
one or more members of its controlled group.
In addition, within ninety days of the occurrence of items (i) and
(ii) in the immediate preceding sentence, the original transferor
must pay the county any present value differential as defined in
subsection (O)(5).
(4) For purposes of this subsection (S):
(a) The income tax owner of property shall mean the entity
or entities which are entitled to depreciation deductions for such
property for South Carolina income tax purposes.
(b) Financing entity shall include any entity or entities.
(c) Fee interest shall include any fee interest as defined in
subsection (O) and any group fee interest as defined in subsection
(P). (5) The manner in which an arrangement is reported
under generally accepted accounting principles shall not adversely
affect the authorization of such an arrangement under this section.
(T) No inducement agreement, millage rate agreement, or lease
agreement, nor the rights of any entity pursuant to any such
agreement, including without limitation the availability of the
subsection (D)(2) fee, shall be adversely affected if the bonds issued
pursuant to any such agreement are purchased by one or more of
the entities which are or become parties to any such agreement.
(U) Notwithstanding any other provision of this section to the
contrary, if at any time following the period provided in subsection
(C)(2), the investment based on income tax basis without regard to
depreciation falls below the eighty-five million dollar minimum
investment to which the fee relates and is held by an entity or
controlled group of entities, the fee provided in subsection (D)(2) is
no longer available and the investor is required to make the
payments which are due under Section 4-29-60 for the remainder of
the lease period.
(V) The minimum amount of the initial investment provided in
subsection (B)(2) of this section may not be reduced except by a
special vote which, for purposes of this section, means an
affirmative vote in each branch of the General Assembly by
two-thirds of the members present and voting, but not less than
three-fifths of the total membership in each branch.
(W) (1) The investor shall file the returns, contracts, and other
information which may be required by the Department of Revenue
and Taxation.
(2) Fee payments, and returns calculating fee payments, are
due at the same time as property tax payments and property tax
returns would be due if the property were owned by the party
obligated to make such fee payments and file such returns.
(3) Failure to make a timely fee payment and file required
returns shall result in penalties being assessed as if the payment or
return was a property tax payment or return.
(4) The Department of Revenue and Taxation may
issue the rulings and promulgate regulations it determines necessary
or appropriate to carry out the purpose of this section.
(5) The provisions of Chapters 4 and 54 of Title 12
applicable to property taxes shall apply to this section; and for
purposes of such application, the fee shall be considered a property
tax. Sections 12-54-20, 12-54-80, and 12-54-155 do not apply to
this section.
(X) Except as otherwise expressly provided in subsection (C)(2),
any loss of fee benefits under this section shall be prospective only
from the date of noncompliance and, subject to subsection (U), only
with respect to that portion of the project to which such
noncompliance relates; provided, however, that such loss of fee
benefits cannot result in the recovery from the fee-paying entity of
fee payments for more than:
(1) three years from the date a return concerning the fee is
filed for the time period during which the noncompliance occurs,
absent a showing of bad faith noncompliance, in which case such
three-year period shall instead be a ten-year period; or
(2) ten years if no such return is filed for the time period
during which the noncompliance occurs.
(Y) Section 4-29-65 shall be inapplicable with respect to this
section. All references in this section to taxes shall be considered
to mean South Carolina taxes unless otherwise expressly stated.
(Z) Notwithstanding any provision of Section 4-29-60 or this
section:
(1) If at least two hundred new full-time jobs are created
within the time period for qualifying expenditures set forth in
subsection (I), the minimum level of investment required in order
for property to qualify for the payment in lieu of taxes (fee) as
provided in this section is sixty million dollars.
(2) If at least three hundred new full-time jobs are created
within the time period for qualifying expenditures set forth in
subsection (I), the minimum level of investment required in order
for property to qualify for the payment in lieu of taxes (fee) as
provided in this section is forty million dollars.
(3) If at least four hundred new full-time jobs are created
within the time period for qualifying expenditures set forth in
subsection (I), the minimum level of investment required in order
for property to qualify for the payment in lieu of taxes (fee) as
provided in this section is twenty million dollars.
(4) If the dollar amount in item (1), (2), or (3) applies, the
applicable amount is substituted for each reference in this section to
eighty-five million dollars.
(5) For purposes of this subsection, the terms `full-time'
and `new job' are defined as provided in Section 12-7-1220."
SECTION 24. Section 4-29-69(A)(2)(b) and (5) of the 1976
Code, as added by Act 123 of 1993, are amended to read:
"(2)(b) is located in a county which is designated at the
beginning of the consolidation period as a less-developed county by
the South Carolina Tax Commission Department of
Revenue pursuant to Section 12-7-1220.
(5) `Consolidation period' means the eighteen-month period
beginning on the first date that assets are transferred to the facility
in this State from the manufacturing facility in the other state. The
South Carolina Economic Development Board Division
of State Development of the South Carolina Department of
Commerce shall certify in writing to the South Carolina
Tax Commission Department of Revenue the
specific date that the consolidation period begins."
SECTION 25. Section 9-1-1535 of the 1976 Code is amended to
read:
"Section 9-1-1535. Conservation
Enforcement officers of the Law Natural
Resources Enforcement section Division of the
South Carolina Wildlife and Marine Resources Department
shall be of Natural Resources are retired no later
than the end of the fiscal year in which they reach their sixty-fifth
birthday."
SECTION 26. Section 10-1-100 of the 1976 Code is amended to
read:
"Section 10-1-100. All invitations for bid proposals for
construction projects (but not including South Carolina Highway
Department Department of Transportation projects)
issued by the State, its authorities, commissions, departments,
committees, or agencies, or any political subdivision of the
State, shall set forth in the contract documents, to the extent they
are reasonably obtainable by the public awarding authority, those
provisions of federal, state, and local statutes,
ordinances, and regulations dealing with the prevention of
environmental pollution and the preservation of public natural
resources that affect or are affected by the projects. If the
successful bidder must undertake additional work which was not
specified in the invitation for bid proposals or which are due to the
enactment of new or the amendment of existing statutes, ordinances,
rules, or regulations occurring after the submission of the
successful proposal, the awarding agency shall issue a change order,
setting forth the additional work that must be undertaken, which
shall may not invalidate the contract. The cost of
such a this change order to the awarding agency
shall must be determined in accordance with the
provisions of the contract for change orders or force accounts and
that such the additional costs to undertake work not
specified in the contract documents shall must not
be approved unless written authorization is given the successful
bidder/contractor prior to before his undertaking
such the additional activity. In the event of a
dispute between the awarding agency and the successful
bidder/contractor, arbitration procedures may be commenced under
the applicable terms of the construction contract under the
provisions of Chapter 47, Title 15."
SECTION 27. Section 11-9-825, as last amended by Act 181 of
1993, is further amended to read:
"Section 11-9-825. The staff of the Board of Economic
Advisors must be supplemented by the following officials who each
shall designate one professional from their individual staffs to assist
the BEA staff on a regular basis: the Governor, the Chairman of the
House Ways and Means Committee, the Chairman of the Senate
Finance Committee, the State Director of the
Department of Revenue and Taxation Chairman, and the
Director of the Budget Division of the Budget and Control Board.
The BEA staff shall meet monthly with these designees in order to
solicit their input."
SECTION 28. Section 12-4-15 of the 1976 Code, as added by
Act 181 of 1993, is amended to read:
"Section 12-4-15. (A) The Department of Revenue
and Taxation must be divided into such divisions as the
commissioner of the department or director may prescribe but
shall consist of at least the following principal divisions: tax, motor
vehicle titling, registration and licensing and commercial motor
vehicle services.
(B) Each division shall be supervised by a deputy director or
designee of the Department of Revenue and Taxation."
SECTION 29. Section 12-4-30(C) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(C) After February 1, 1995, the department will be
governed in matters of policy and administration by a director
appointed by the Governor with the advice and consent of the
Senate. The director shall possess sound moral character,
superior knowledge in taxation, and proven administrative ability
and must be an attorney experienced in tax matters or a certified
public accountant. The director may be removed from office
pursuant to the provisions of Section 1-3-240."
SECTION 30. Section 12-4-40 of the 1976 Code, as last
amended by Act 50 of 1991, is further amended to read:
"Section 12-4-40. Each commissioner The
director, within thirty days after notice of appointment and
before taking office, shall take and file with the Secretary of State
the oath of office prescribed by the State Constitution."
SECTION 31. Section 12-4-50 of the 1976 Code, as last
amended by Act 50 of 1991, is further amended to read:
"Section 12-4-50. The terms term of office
of the commissioners are director is six
four years each, with the term of one member expiring
every two years. Each commissioner The
director shall remain in office until his successor is appointed
and qualifies."
SECTION 32. Section 12-4-60 of the 1976 Code, as last
amended by Act 50 of 1991, is further amended to read:
"Section 12-4-60. The commissioners
director shall receive an annual salary set by the General
Assembly and reimbursement for their expenses incurred
while engaged in the work of the commission
department in the same manner as other state
officers."
SECTION 33. The first paragraph of Section 12-4-70 of the 1976
Code, as last amended by Act 50 of 1991, is further amended to
read:
"The chairman director of the
commission shall devote the time required to perform the duties
of the office and may not:"
SECTION 34. Section 12-4-340 of the 1976 Code, as last
amended by Section 101 of Act 164 of 1993, is further amended to
read:
"Section 12-4-340. The commission
department, for the purposes of collecting delinquent taxes
due from a taxpayer, may contract with a collection agency, within
or without the State, for the collection of delinquent taxes,
including penalties and interest as provided in Section
12-54-227."
SECTION 35. Section 12-4-760 of the 1976 Code is amended to
read:
"Section 12-4-760. In addition to any right of appeal
otherwise provided by law, a taxpayer may appeal from the decision
of the commission Administrative Law Judge
Division to the Tax Board of Review circuit
court for an interpretation of the Constitution or state laws
regarding his property tax exemption status upon payment of his
property taxes under protest. The county governing body may
appeal the decision of the commission Administrative
Law Judge Division to the Tax Board of Review
circuit court. Appeals under this section are confined to
the record."
SECTION 36. The first paragraph of Section 12-21-2423 of the
1976 Code, as amended by Section 22, Part II, Act 497 of 1994, is
further amended to read:
"An amount equal to one-fourth of the license tax on
admissions to a major tourism or recreation facility collected by the
Department of Revenue and Taxation beginning when the
facility is open to the general public and ending fifteen years
thereafter after that time must be paid to the county
or municipality in which the major tourism or recreation facility is
located to be used directly or indirectly for additional infrastructure
improvements. If the facility is located in an unincorporated area
of a county, the payment must be made to the county governing
body and, if located within the corporate limits of a municipality,
the payment must be made to the municipal governing body. The
county or municipal governing body may share funds received from
these payments with another county, special purpose district, or
municipal governing body to provide additional infrastructure
facilities or services in support of the tourism or recreation facility
that generates the admission tax revenues responsible for the
payments. An additional amount equal to one-fourth of the license
tax on admissions to a major tourism or recreation facility collected
by the Department of Revenue and Taxation
department beginning when the facility is open to the
general public and ending fifteen years thereafter after
that time must be transferred to the State Treasurer to be
deposited into a special tourism infrastructure development fund and
distributed pursuant to the approval of the Advisory
Coordinating Council for Economic Development of the Department
of Commerce as provided in this section. Deposits into the fund
must be separated into special accounts based on which facility
generated the transfer. Local units of governments within five
miles of a major tourism or recreation facility may apply to the
council for infrastructure development grants from the special
account for which they are eligible. The amount of the funds
received by each of the eligible local governments must be
determined by the council based upon its review of a grant
application submitted by each government. Preference must be
given to applications for projects which directly or indirectly serve
the generating facility or other development occurring as a result of
the generating facility. Grants may run for more than one year and
may be based upon a specified dollar amount or a percentage of the
funds annually deposited into the special account. After approval of
a grant application, the council may approve the release of
funds to eligible local governments. Funds must be used directly or
indirectly for additional infrastructure improvements provided in
this section. The council shall adopt guidelines to administer the
fund including, but not limited to, tourism infrastructure
development grant application criteria for review and approval of
grant applications. Expenses incurred by the council in
administering the fund may be paid from the fund."
SECTION 37. Section 12-21-2720(C) of the 1976 Code, as added
by Section 19, Part II, Act 164 of 1993, is amended to read:
"(C) In addition to any fees set forth under subsection
(A)(3), there is imposed a one-time nonrefundable fee of five
hundred dollars on all licenses issued on such the
machines for the period between July 1, 1993, and June 30,
1995. The revenue from this fee must be placed in a special
account and used exclusively for the purpose of monitoring these
machines on a twenty-four hour a day basis. The Tax
Commission Department of Revenue is responsible for
administering this account and implementing, through regulations as
approved by the General Assembly, its requirements."
SECTION 38. Section 12-21-2738 of the 1976 Code, as last
amended by Section 19, Part II, Act 164 of 1993, is further
amended to read:
"Section 12-21-2738. A person who fails, neglects, or
refuses to comply with the terms and provisions of this article or
who fails to attach the required license to any machine, apparatus,
billiard, or pocket billiard table, as herein required, is subject to a
penalty of fifty dollars for each failure, and the penalty must be
assessed and collected by the commission
department.
If the violation under this section relates to a machine licensed
pursuant to Section 12-21-2720(A)(3), the applicable penalty
amount is two thousand five hundred dollars, no part of which may
be suspended, and one-half of this penalty must be deposited to the
credit of the general fund of the State and one-half must be retained
by or forwarded to the law enforcement or administrative agency
charging the violation."
SECTION 39. Article 20, Chapter 21, Title 12 of the 1976 Code,
as added by Section 19, Part II, Act 164 of 1993, is amended to
read:
"Article 20
Video Game Machines Act
Section 12-21-2770. This article may be cited as the Video
Game Machines Act.
Section 12-21-2772. As used in this article:
(1) `Associated equipment' means a proprietary device,
machine, or part used in the manufacture or maintenance of a video
game machine including, but not limited to, integrated circuit chips,
printed wired assembly, printed wired boards, printing mechanisms,
video display monitors, and metering devices.
(2) `Commission Department' means the South
Carolina Tax Commission Department of Revenue.
(3) `Distributor' means any person who buys and sells or leases
video machines or associated equipment in this State. A distributor
may also own, operate, service, or repair video machines in this
State.
(4) `Licensed establishment' means an establishment owned or
managed by a person who is licensed pursuant to Article 19 of this
chapter for the location of coin-operated nonpayout video machines
with a free play feature.
(5) `Machine' means an electronic video games machine that,
upon insertion of cash, is available to play or simulate the play of
games as authorized by the commission department
utilizing a video display and microprocessors in which the player
may receive free games or credits that can be redeemed for cash.
(6) `Manufacturer' means any person that manufactures or
assembles and programs machines or associated replacement
equipment authorized for sale or use in this State.
(7) `Net machine income' means money put into the machine
minus money paid out in cash. `Gross machine income' means the
sum of all cash/money put into the machine.
(8) `Machine owner' means any person, other than a distributor,
who owns and operates, maintains, repairs, or services one or more
machines in licensed establishments. For purposes of this article
`owner/operator' is defined the same as `machine owner'.
(9) `Contraband device/equipment' or `gray area machine'
means any unlicensed machine.
Section 12-21-2774. Each machine licensed under this chapter:
(1) may not have any means of manipulation that affect the
random probabilities of winning a video game;
(2) shall have one or more mechanisms that accept only coins
or cash in the form of bills. The mechanisms must be designed to
prevent obtaining credits without paying by stringing, slamming,
drilling, or other means;
(3) must have a commission department
approved metering device that keeps a record of all cash (total coin
accepted and total credit generated by the bill acceptor) inserted into
the machine, credits played for video games, and credits won by
video players and refunds of winnings and other information as
prescribed by the commission department;
(4) must be capable of being accessed on demand by
telecommunication from a central computer for purposes of polling
or reading device activities and for central computer remote
shutdown of machine operations.
Section 12-21-2776. (A) All machines must be registered and
licensed by the commission department under
procedures and guidelines issued by the commission
department.
(B) By July 1, 1995, all machines registered and licensed by the
commission department must be equipped with a
commission department approved metering device.
Each machine owner, operator, or licensed establishment must
establish and implement cash controls required by the
commission department.
Section 12-21-2778. Each machine must be licensed pursuant to
Article 19 of this chapter by the commission
department before placement or operation on the premises
of a licensed establishment. Each machine must have the license
prominently displayed pursuant to Article 19 of this chapter.
Section 12-21-2780. A seal must be affixed to the
commission department approved metering device
which corresponds to the license as set forth in Section 12-21-2778.
Section 12-21-2782. The commission
department shall promulgate rules and regulations regarding
the types of machines and equipment that must be licensed and the
costs associated with inspection. Notwithstanding the provisions of
Section 12-21-2774(1), any machine of a type licensed as of July 1,
1993, in this State and which satisfies the conditions of Section
12-21-2776(B) may continue to operate for five years from July 1,
1993. This section may must not be construed as
authorizing cash payouts for credits earned after the effective date
of a referendum prohibiting such the payouts.
Section 12-21-2784. Each machine manufacturer, distributor,
operator, and licensed establishment must be licensed by the
commission department pursuant to Article 19 of
this chapter and this article before a machine or associated
equipment is manufactured, distributed, sold, or placed for public
use in this State.
Section 12-21-2786. The placement of machines in licensed
establishments is subject to the provisions of Article 19 of this
chapter and the rules and regulations promulgated by the
commission department.
Section 12-21-2788. The commission
department shall deny or revoke an establishment license
for machine placement that does not meet the requirements of
Section 12-21-2786 pursuant to the provisions of Section 12-54-90.
Section 12-21-2790. It is unlawful to tamper with a machine
with intent to interfere with its proper operation. A person who
violates this section is guilty of a felony and, upon conviction, must
be imprisoned not more than one year or fined not more than five
thousand dollars, or both.
Section 12-21-2791. Any location which operates or allows the
operation of coin-operated machines pursuant to Section
12-21-2720(A)(3) which provides payouts authorized pursuant to
Section 16-19-60 shall limit the cash payout for credits earned for
free games to two thousand five hundred credits per for
each player per for each location during any
twenty-four hour period. The cash value of credits for each free
game shall be is limited to five cents.
Section 12-21-2792. Skimming of machine proceeds is the
intentional excluding, or the taking of any action in an attempt to
exclude anything or its value from the deposit, counting, collection,
or computation of revenues from machines. Whoever commits
skimming of machine proceeds is guilty of a felony and, upon
conviction, must be imprisoned for not less than one year nor more
than ten years, without benefit of probation, parole, or suspension
of sentence, and may be fined not more than twenty-five thousand
dollars.
Section 12-21-2793. Any location which operates or allows the
operation of coin-operated machines pursuant to Section
12-21-2720(A)(3) which provides payouts authorized pursuant to
Section 16-19-60 may must not be located within
five hundred feet within a county and within three hundred feet in a
municipality of a public or private elementary, middle, or secondary
school; a public or private kindergarten; a public playground or
park; a public vocational or trade school or technical educational
center; a public or private college or university; or house of
worship. The owner of any location operating in violation of the
provisions of this section shall be is guilty of a
misdemeanor and shall, upon conviction, must be
fined not less than one hundred dollars and not nor
more than two hundred dollars or imprisoned for not more
than sixty days. Each day of operation shall constitute
constitutes a separate violation.
The penalty imposed by this section shall is not
be effective until after September 1, 1993. Any location
relocating pursuant to this section may apply to the Tax
Commission department for the reissuance of a license
without charge.
The provisions of this section do not apply with respect to any
location with machines with licenses issued before May 30, 1993.
Section 12-21-2794. A person who, with intent to manipulate
the outcome, payoff, or operation of a machine by physical
tampering or any other means is guilty of a felony and, upon
conviction, must be imprisoned not less than one year nor more
than five years or fined not more than one thousand dollars, or
both.
Section 12-21-2796. A machine owner or distributor who
wilfully places a machine on location or who wilfully causes a
machine to be operated without the state approved metering device
is guilty of a felony and, upon conviction, must be imprisoned
for not less than one year nor more than ten years, without
benefit of probation, parole, or suspension of sentence, and may be
fined not more than twenty-five thousand dollars.
Section 12-21-2798. The commission
department shall promulgate rules and regulations
pertaining to the machines and persons licensed by it.
Section 12-21-2802. Each machine licensed under this article or
Article 19 must have a prominently displayed sign citing the
penalties provided by Sections 12-21-2790, 12-21-2792, and
12-21-2794 on the wall above the machine or affixed prominently
to the machine. The commission department shall
make these signs available free of charge.
Section 12-21-2804. (A) No person shall may
apply for, receive, maintain, or permit to be used, and the
commission shall department may not allow to be
maintained, permits or licenses for the operation of more than eight
machines authorized under Section 12-21-2720(A)(3) at a single
place or premises for the period beginning July 1, 1993, and ending
July 1, 1994. After July 1, 1994, the commission
department may not issue nor authorize to be maintained
any licenses or permits for more than five machines authorized
under Section 12-21-2720(A)(3) at a single place or premises. Any
licenses or permits issued for the operation of machines authorized
under Section 12-21-2720(A)(3) during the period of July 1, 1993,
and July 1, 1994, for a two-year period shall continue in
effect after July 1, 1994, provided that.
However, during the period of July 1, 1994, and July 1,
1995, no person shall may maintain at a single
place or premises more than eight machines authorized under
Section 12-21-2720(A)(3). No machine may be licensed or
relicensed in any location where the primary and substantial portion
of the establishment's gross proceeds is from machines licensed
under Section 12-21-2720(A)(3). The commission
department shall revoke the licenses of machines located in
an establishment which fails to meet the requirements of this
section. No license may be issued for a machine in an
establishment in which a license has been revoked for a period of
six months from the date of the revocation. The term `gross
proceeds' from the machines means the establishment's portion.
(B) No person who maintains a place or premises for the
operation of machines licensed under Section 12-21-2720(A)(3)
may advertise in any manner for the playing of the machines nor
may a person offer or allow to be offered any special inducement to
a person for the playing of machines permitted under Section
12-21-2720(A)(3).
(C) No person under twenty-one years of age may receive a
payout as a result of the operation of the machines licensed under
Section 12-21-2720(A)(3).
(D) No owner, operator, or marketer may be issued a permit by
the commission department for machines pursuant
to Section 12-21-2720(A)(3) unless the owner, operator, or
marketer has been a resident of the State for two years. The
commission department shall require a statement of
residency to be filed with the commission
department as part of the application process for permits
issued under Section 12-21-2720(A)(3) on forms and in a manner
the commission department considers appropriate.
(E) It is unlawful to operate machines licensed under Section
12-21-2720(A)(3) between the hours of midnight Saturday
night and six o'clock a.m. Monday morning.
(F) A person violating subsections (A), (B), (D), or (E) of
this section is subject to a fine of up to five thousand dollars to
be imposed by the commission department. The
commission department, upon a determination that
the violation is wilful, may refer the violation to the Attorney
General or to the appropriate circuit solicitor for criminal
prosecution, and, upon conviction, the person must be fined not
more than ten thousand dollars or imprisoned not more than two
years, or both. The commission department shall
revoke the licenses of any person issued pursuant to the provisions
of Article 19 of this chapter for a violation of subsection (C) of this
section. Revocation is pursuant to the procedures set forth in
Section 12-54-90.
Section 12-21-2806. The cash payouts authorized by Section
16-19-60 of the 1976 Code relating to coin-operated devices may
only be continued in any county in South Carolina after June 30,
1995, if a majority of the qualified electors of the county voting in
a statewide referendum at the time of the 1994 general election vote
in favor of the continued regulation and issuance of these licenses.
The State Election Commission must place the question contained
herein on the general election ballot in November, 1994. The state
election laws shall apply to the referendum, mutatis mutandis. The
State Board of Canvassers shall publish the results of the
referendum within each county and certify them to the Secretary of
State. If the result of this referendum is not in favor of a
continuation of cash payouts for credits earned on coin-operated
devices within the county, Section 16-19-60 of the 1976 Code shall
not apply within such the county after July 1, 1995.
If a majority of the qualified electors within a county vote to
terminate cash payoffs for credits earned on coin-operated devices
after July 1, 1995, the Tax Commission Department of
Revenue shall refund to any person holding a license for the
operation of coin-operated devices, on a pro-rata basis, the portion
of any license fees previously paid the commission
department for licenses which extend beyond July 1, 1995.
The question put before the voters shall read as follows:
`Shall cash payouts for credits earned on coin-operated video
game machines remain legal and subject to licensure and
regulation by the State of South Carolina after June 30, 1995?'
[] Yes
[] No
Section 12-21-2808. In addition to the referendum to be held
at the 1994 general election, counties are authorized to hold a
referendum to determine whether or not cash payoffs provided for
under Section 16-19-60 of the 1976 Code relating to coin-operated
devices shall be authorized. The counties are authorized to hold
such a referendum in the manner provided in this section except
that no such referendum may be held until the 1998 general election
and may also be held in subsequent general elections as provided
herein.
(1) The referendum must be held:
(a) upon the passage of an ordinance of the governing body
of a county providing for a referendum if the ordinance is passed at
least ninety days before a general election; or
(b) upon a petition so requesting filed with the county
election commission more than ninety days before the general
election containing the signatures of at least ten percent, but not
more than two thousand five hundred, of the qualified electors of
the county as of the time of the preceding general election.
(2) In any county in which cash payoffs are authorized by
Section 16-19-60 of the 1976 Code relating to coin-operated devices
at the time of the referendum provided for in this section, the
question put before the voters shall read as follows:
`Shall cash payoffs for credits earned on coin-operated video
game machines remain legal and subject to licensure and regulation
by the State of South Carolina?'
[] Yes
[] No
(3) In any county in which, at the time of the referendum
provided for in this section, cash payoffs as provided for by Section
16-19-60 of the 1976 Code relating to coin-operated devices are not
authorized, the question put before the voters shall read as follows:
`Shall cash payoffs for credits earned on coin-operated video
game machines be allowed and subject to licensure and regulation
by the State of South Carolina?'
[] Yes
[] No
(4) If the result of the referendum provided for in this section is
not in favor of a continuation of cash payoffs for credits earned on
coin-operated devices within the county, Section 16-19-60 of the
1976 Code shall not apply within the county after July first of the
year following the referendum.
(5) If the results of the referendum provided for in this section
are to authorize cash payoffs relating to coin-operated devices,
Section 16-19-60 shall apply within such county after January first
of the year following the referendum.
(6) The state election laws apply to the referendum provided in
this section, mutatis mutandis.
(7) If a majority of the qualified electors within a county vote
to terminate cash payoffs for credits earned on coin-operated
devices, in a referendum as authorized in this section, the Tax
Commission Department of Revenue shall refund to
any person holding a license for the operation of coin-operated
devices on a pro rata basis, the portion of any license fees
previously paid the commission department for
licenses which extend beyond July first of the year after the
referendum."
SECTION 40. Section 12-21-5020(4) of the 1976 Code, as added
by Section 70, Part II, Act 164 of 1993, is amended to read:
"(4) `Commission Department' means the
South Carolina Tax Commission Department of
Revenue."
SECTION 41. Section 12-21-5030 of the 1976 Code, as added by
Section 70, Part II, Act 164 of 1993, is amended to read:
"Section 12-21-5030. The commission
department shall administer the provisions of this article.
Payments required by this article must be made to the
commission department on the form provided by it.
Dealers are not required to give their name, address, social security
number, or other identifying information on the form. The
commission department shall collect all taxes under
this article."
SECTION 42. Section 12-21-5040 of the 1976 Code, as added by
Section 70, Part II, Act 164 of 1993, is amended to read:
"Section 12-21-5040. The commission
department may promulgate regulations necessary to
enforce this article. The commission department
shall adopt a uniform system of providing, affixing, and displaying
official stamps, official labels, or other official indicia for marijuana
and controlled substances on which a tax is imposed."
SECTION 43. Section 12-21-6010 of the 1976 Code, as added by
Section 70, Part II, Act 164 of 1993, is amended to read:
"Section 12-21-6010. Official stamps, labels, or other
indicia to be affixed to all marijuana or controlled substances must
be purchased from the commission department.
The purchaser shall pay one hundred percent of face value for each
stamp, label, or other indicia at the time of the purchase."
SECTION 44. Section 12-21-6040(A) of the 1976 Code, as
added by Section 70, Part II, Act 164 of 1993, is amended to read:
"(A) The commission department or a
public employee may not reveal facts contained in a report or return
required by this article or any information obtained from a dealer.
Information contained in a report or return or obtained from a
dealer may must not be used against the dealer in a
criminal proceeding, unless independently obtained, except in
connection with a proceeding involving taxes due under this article
from the dealer making the return."
SECTION 45. Section 12-21-6050 of the 1976 Code, as added by
Section 70, Part II, Act 164 of 1993, is amended to read:
"Section 12-21-6050. The commission
department shall credit the proceeds of the tax levied by
this article to the general fund of the State."
SECTION 46. Section 12-27-390 of the 1976 Code, as last
amended by Section 15, Part II, Act 164 of 1993, is further
amended to read:
"Section 12-27-390. (A) One percent of the proceeds
from the gasoline tax imposed pursuant to Sections 12-27-230 and
12-27-240 must be transmitted to the Department of Wildlife
and Marine Natural Resources to be placed to the credit
of a special water recreational resources fund of the state
treasury, and all balances in the fund must be carried
forward each year so that no part of it reverts to the general fund of
the State. All of the funds must be allocated based upon the
number of boats or other watercraft registered in each county
pursuant to law and expended, subject to the approval of a majority
of the county legislative delegation, including a majority of the
resident senators, if any, for the purpose of water recreational
resources. The amounts allocated must be deducted from the gross
proceeds of the gasoline tax imposed under Sections 12-27-230 and
12-27-240 before net proceeds to be distributed pursuant to Section
12-27-380 are determined. This section does not reduce the one
cent a gallon license tax credited to the general fund of the State
pursuant to Section 12-27-380.
(B) The governing body of any coastal county, upon
recommendation of a majority of the legislative delegation,
including a majority of the resident senators, shall refund to any
person purchasing gasoline for use in commercial or charter fishing
boats operated exclusively in the coastal waters of this State all or a
portion of the state tax on the gasoline returned to the county
pursuant to this section. The refund, if any, must be made pursuant
to regulations established by the governing body of the county.
(C) The South Carolina Wildlife and Marine Resources
Department of Natural Resources must be reimbursed for
engineering, design, rehabilitation, and law enforcement costs
incurred in the administration of the provisions of this section, but
funds for law enforcement may not exceed one-third of revenues to
the special water recreational resources fund. Funds for
reimbursement must be transferred from funds collected under the
provisions of this section."
SECTION 47. Section 12-27-400 of the 1976 Code, as last
amended by Section 17, Part II, Act 497 of 1994, is further
amended to read:
"Section 12-27-400. (A) The monies collected pursuant to
Section 12-27-240 must be deposited with the State Treasurer and
expended for purposes set forth in this section. The monies must
be apportioned among the counties of the State in the following
manner:
(1) one-third in the ratio which the land area of the county
bears to the total land area of the State;
(2) one-third in the ratio which the population of the county
bears to the total population of the State as shown by the latest
official decennial census; and
(3) one-third in the ratio which the mileage of all rural roads
in the county bears to the total rural road mileage in the State as
shown by the latest official records of the Department of
Transportation. The Department of Revenue and Taxation
shall add a line in the sales, use, and local option sales tax return
form for the collection of information regarding the number of
gallons of gasoline sold in each county for use in making
allocations of `C' funds as provided in this section. The
Department of Revenue and Taxation shall submit the
percentage of the total represented by each county to the
Department of Transportation and to each county transportation
committee by the twenty-fifth day of the month following the end
of the calendar quarter.
Upon request of a county transportation committee, the
Department of Transportation shall continue to administer the funds
allocated to the county.
(B) The funds expended must be approved by and used in
furtherance of a countywide transportation plan adopted by a county
transportation committee. The county transportation committee
must be appointed by the county legislative delegation and must be
made up of fair representation from municipalities and
unincorporated areas of the county. The members of a county
transportation committee, in performing its duties under this section,
shall be allowed and paid from `C' fund revenues such subsistence
expense and mileage as is paid to members of other state boards
and commissions. County transportation committees may join
in approving a regional transportation plan, and the funds must be
used in furtherance of the regional transportation plan. This
subsection does not prohibit the county legislative delegation from
making project recommendations to the county transportation
committee. A county transportation committee may expend from
the funds allocated under this section an amount not to exceed one
thousand dollars for reasonable administrative expenses directly
related to the activities of the committee. Administrative expenses
may include costs associated with copying, mailings, public notices,
correspondence, and recordkeeping but do not include the payment
of per diem or salaries for members of the committee.
(C) At least twenty-five percent of a county's apportionment of
`C' funds must be expended on the state highway system for
construction, improvements, and maintenance. The county
transportation committee, at its discretion, may expend up to
seventy-five percent of `C' construction funds for activities
including, but not limited to, local paving or improving county
roads, for street and traffic signs, and for other paving projects.
Roads constructed of rock must consist of not less than one inch
nor more than two and one-half inches of rock or its equivalent.
(D) The funds allocated to the county also may be used to issue
county bonds or state highway bonds as provided in subsection (J) ,
pay directly for appropriate projects, including engineering,
contracting, and project supervision, and match federal funds
available for appropriate projects.
(E) All unexpended `C' funds allocated to a county remain in
the account allocated to the county for the succeeding fiscal year
and must be expended as provided in this section.
(F) The countywide and regional transportation plans provided
for in this section must be reviewed and approved by the
Department of Transportation. Before the expenditure of funds by
a county transportation committee, the committee shall adopt
specifications for local road projects. In counties electing to expend
their allocation directly pursuant to subsection (A), specifications of
roads built with `C' funds are to be established by the countywide
or regional transportation committee. In counties in which the
county transportation committee elects to have `C' funds
administered by the Department of Transportation, primary and
secondary roads built using `C' funds must meet Department of
Transportation specifications.
(G) This section must not be construed as affecting the plans
and implementation of plans for a Statewide Surface Transportation
System as developed by the Department of Transportation.
(H) For purposes of this subsection, `donor county' means a
county that contributes to the `C' fund an amount in excess of what
it receives under the allocation formula as stated in subsection (A).
In addition to the allocation to the counties pursuant to subsection
(A), the Department of Transportation annually shall transfer from
the state highway fund to the donor counties an amount equal to
nine and one-half million dollars in the ratio of the individual donor
county's contribution in excess of `C' fund revenue allocated to the
county under subsection (A) to the total excess contributions of all
donor counties.
(I) In expending funds under this section, counties that provide
for engineering, contracting, and project supervision shall use a
procurement system which requires competitive sealed bids and
public advertisement of all projects. All bids for contracts in excess
of one hundred thousand dollars must be accompanied by certified
bid bonds, and all work awarded under the contracts must be
covered by performance and payment bonds for one hundred
percent of the contract value. Bid summaries must be published in
a newspaper of general distribution following each award.
(J) State highway bonds may be issued for the completion of
projects for which `C' funds may be expended for projects as
determined by the county transportation committee. The applicable
source for payment of principal and interest on the bonds is the
share of `C' fund revenues available for use by the county
transportation committee. The application for the bonds must be
filed by the county transportation committee with the Commission
of the Department of Transportation and the State Treasurer, which
shall forward the application to the State Budget and Control Board.
The Budget and Control Board shall consider the application in the
same manner that it considers state highway bonds, mutatis
mutandis.
(K) Members of the committee are insulated from all personal
liability arising out of matters related directly to and within the
scope of the performance of official duties and functions conferred
upon the committee pursuant to this section."
SECTION 48. Section 12-27-1270 of the 1976 Code, as last
amended by Section 49, Part II, Act 164 of 1993, is further
amended to read:
"Section 12-27-1270. The first eighteen million dollars
generated from the tax levied in Sections 12-27-1210, 12-27-1220,
12-27-1230, and 12-27-1240 must be segregated in a separate
account for economic development. This account may be expended
only upon the authorization of the South Carolina
Coordinating Council for Economic Development of the
Department of Commerce which shall establish project
priorities. Funds devoted to the economic development account
must remain in the account if not expended in the previous fiscal
year. Annually, funds from the tax levied in Section 12-27-1210
must be deposited to replenish the account to the extent and in an
amount necessary to maintain an uncommitted and/or an
unobligated, or both, fund balance of eighteen million
dollars but not to exceed eighteen million dollars for the ensuing
fiscal year. The council may spend no more than two hundred
fifty thousand dollars, in the first year only, for a long-term
economic development plan which must be submitted to the General
Assembly on completion of the plan. The council may spend
not more than sixty thousand dollars annually for a state
infrastructure model."
SECTION 49. Section 12-36-1710(G) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(G) The Department of Revenue and Taxation
and the Division of Aeronautics of the Department of Commerce
may not issue a license or transfer of title without first procuring
from the Department of Revenue and Taxation information
showing that the excise tax has been collected. The Department of
Natural Resources may not license any boat or register any motor
without first procuring from the Department of Revenue and
Taxation information showing that the excise tax has been
collected."
SECTION 50. Section 12-36-2570 of the 1976 Code, as last
amended by Section 103, Part II, Act 164 of 1993, is further
amended to read:
"Section 12-36-2570. (A) The taxes imposed under the
provisions of this chapter, except as otherwise provided, are due
and payable in monthly installments on or before the twentieth day
of the month following the month in which the tax accrues.
(B) On or before the twentieth day of each month, every person
on whom the taxes under this chapter are imposed shall render to
the commission department, on a form prescribed
by it, a true and correct statement showing, by location, the gross
proceeds of wholesale and retail sales of his business, and sales
price of the property purchased for storage, use, or consumption in
this State, together with other information the commission
department may require.
(C) At the time of making a monthly report, the person shall
compute the taxes due and pay to the commission
department the amount of taxes shown to be due. A return
is considered to be timely filed if the return is mailed and has a
postmark dated on or before the date the return is required by law
to be filed.
(D) The commission department may permit the
filing of returns every twenty-eight days. These returns must be
filed within twenty days following the period covered by the return.
(E) The commission department may enter into
an agreement with a taxpayer which allows the taxpayer to remit
the tax on statistical factors as set forth in the agreement. This
method of reporting only applies to purchases by the taxpayer for
its use, storage, or consumption, and not to purchases by the
taxpayer for resale."
SECTION 51. The second paragraph of Section 12-36-2610 of
the 1976 Code, as last amended by Section 98, Part II, Act 164 of
1993, is further amended to read:
"In no case is a discount allowed if the return, or the tax on
it is received after the due date, pursuant to Section 12-36-2570, or
after the expiration of any extension granted by the
commission department. The discount permitted a
taxpayer under this section may not exceed three thousand dollars
during any one state fiscal year. However, a person making sales
into this State who cannot be required to register for sales and use
tax under applicable law but who nevertheless voluntarily registers
to collect and remit use tax on items of tangible personal property
sold to customers in this State is entitled to a discount on returns
filed as otherwise provided in this section not to exceed ten
thousand dollars during any one state fiscal year."
SECTION 52. The first paragraph of Section 12-37-930 of the
1976 Code is amended to read:
"All property shall must be valued for
taxation at its true value in money which in all cases shall be
held to be is the price which the property would bring
following reasonable exposure to the market, where both the seller
and the buyer are willing, are not acting under compulsion, and are
reasonably well informed as to the uses and purposes for which it is
adapted and for which it is capable of being used. Provided,
however, that Acreage allotments or marketing quota allotments
for any a commodity as established under
any a program of the United States Department of
Agriculture shall be are classified as incorporeal
hereditaments, and the market value of any real
property to which they are attached shall may not
include the value, if any, of such the acreage
allotment or marketing quota. Provided, further, Fair
market value of manufacturer's machinery and equipment used in
the conduct of the manufacturing business, excluding, however,
vehicles licensed by the Highway Department
Department of Revenue, boats, and airplanes
shall must be determined by reducing the original
cost by an annual allowance for depreciation as stated in the
following schedule."
SECTION 53. The last paragraph of Section 12-37-930 of the
1976 Code, as last amended by Section 81, Part II, Act 164 of
1993, is further amended to read:
"Notwithstanding the percentage allowance stated in the
schedule above, the commission department, after
examination of the relevant facts, may permit an adjustment in the
percentage allowance, with the total allowance not to exceed
twenty-five percent, on account of extraordinary obsolescence. The
commission department may set forth a depreciation
allowance, instead of the depreciation allowance provided in this
section, not to exceed twenty-five percent where the taxpayer can
provide relevant data concerning a useful life of the machinery and
equipment which is different from the period shown in this
section."
SECTION 54. Section 12-37-2680 of the 1976 Code, as last
amended by Section 214, Act 181 of 1993 and Section 22UU, Part
II, Act 164 of 1993, is further amended to read:
"Section 12-37-2680. The assessed value of the vehicle
must be determined as of the first day of the month preceding the
beginning of the tax year for the vehicles. The assessed values
must be published in guides or manuals by the South Carolina
Department of Revenue and Taxation and provided to the
auditor of each county as often as may be necessary to provide for
current values. When the value of any vehicle is not set forth in
the guide or manual, the auditor shall determine the value
from other available information. Any person aggrieved by the
valuation of his motor vehicle may appeal, within thirty days of
the auditor's decision, to the South Carolina Department of
Revenue and Taxation Administrative Law Judge
Division and the department presiding
administrative law judge may increase, decrease, or
affirm the value so determined. Appeals under this section are
confined to the record."
SECTION 55. Subsection (A) of Section 12-43-300 of the 1976
Code, as last amended by Act 181 of 1993, is further amended to
read:
"Section 12-43-300. (A) Whenever the market value
estimate of any property is fixed by the assessor at a sum greater by
one thousand dollars or more than the amount returned by the
owner or his agent, or whenever any property is valued and
assessed for taxation which has not been returned or assessed
previously, the assessor shall, on or before July first, or as soon
thereafter as may be practicable, in the year in which the valuation
and assessment is made give written notice thereof to the owner of
the property or his agent. In reassessment years, the written
reassessment notice to owners or agents must be given by July first.
If there is no timely written notice, the prior year's assessed value
must be the basis for assessment for the current taxable year. The
notice must include the prior market value, the total market value
estimate, the value estimate if applicable, the assessment ratio, the
total new assessment, the percentage changes over the prior market
value, if there is no change in use or physical characteristics of the
property, number of acres or lots, location of property, tax map,
appeal procedure, and other pertinent ownership and legal
description data required by the South Carolina Department of
Revenue and Taxation. The notice may be served upon the
owner or his agent personally or by mailing it to the owner or his
agent at his last known place of residence which may be determined
from the most recent listing in the applicable telephone directory,
Department of Revenue and Taxation Motor Vehicle
Registration List, county treasurer's records, or official notice from
the property owner or his agent. The owner or his agent, if he
objects to the valuation and assessment, shall serve written notice of
his objection upon the assessor within thirty days of the date of the
mailing of the notice. In years when there is no notice of appraisal
because of a less than one thousand dollar change or no change in
the appraised or assessed value, the owner or agent has until March
first to serve written notice of objection upon the assessor of the
appraised or assessed value. In those years, failure to serve written
notice of objection by March first constitutes a waiver of the
owner's right of appeal for that tax year and the assessor is not
required to review any request filed after March first. The assessor
shall then schedule a conference with the owner or agent within
twenty days of receipt of the notice. If the assessor requests it, the
owner, within thirty days after the conference, shall complete and
return to the assessor the form as may be approved by the
Department of Revenue and Taxation relating to the owner's
property and the reasons for his objection. Within thirty days after
the conference, or as soon thereafter as practicable, the assessor
shall mail written notice of his action upon the objection to the
owner. The owner or agent, if still aggrieved by the valuation and
assessment, may appeal from the action to the Board of Assessment
Appeals by giving written notice of the appeal and the grounds
thereof to the assessor within thirty days from the date of the
mailing of the notice. The assessor shall notify promptly the Board
of Assessment Appeals of the appeal.
Any property owner, his agent, or the assessor may appeal
from the finding of the board upon written notice to the
Administrative Law Judge Division within thirty days from the date
of the board's finding. The grounds for the appeal shall be filed
with the board. The board, shall, upon receipt of the Notice of
Appeal, deliver a copy thereof to the assessor or the owner.
Appeals under this section are confined to the record."
SECTION 56. Section 12-53-220 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 12-53-220. When a jeopardy assessment has been
made pursuant to Section 12-53-210, the collection of the whole or
any amount of such the assessment may be stayed
by filing with the Department of Revenue and Taxation,
within such a time as may be fixed by regulations
prescribed by the department, a bond in an amount as to which a
stay is desired, conditioned for the payment of the amount
hereinafter specified at the time when such
the tax would be due if such a tax is not
due at the time of the making of such a jeopardy
assessment, or if such the tax is due or overdue at
the time of the making of such a jeopardy
assessment, at such the time as may be fixed
by such regulations. A bond as contemplated in this article
shall must be in the form of a surety bond issued by
a surety company licensed to do business in South Carolina by the
insurance department Department of Insurance of
this State, or cash which shall may not bear interest,
or negotiable securities subject to the approval of the State
Treasurer. The bond in all instances would be conditioned upon the
payment of the full amount of the assessment together with
applicable interest, penalties, and costs of collection."
SECTION 57. Section 13-1-10, as added by Act 181 of 1993, is
amended to read:
"Section 13-1-10. (A) The Department of Commerce is
established as an administrative agency of state government which
is comprised of a Division of State Development, a Division of
Savannah Valley Development, a Division of Aeronautics, a
Division of Public Railways, and an Advisory a
Coordinating Council for Economic Development. Each division of
the Department of Commerce shall have such functions and powers
as provided for by law.
(B) All functions, powers, and duties provided by law to the
State Development Board, the Savannah Valley Authority, the
South Carolina Aeronautics Commission, the South Carolina Public
Railways Commission, and the Coordinating Council for Economic
Development, its officers or agencies, are hereby transferred to the
Department of Commerce together with all records, property,
personnel, and unexpended appropriations. All rules, regulations,
standards, orders, or other actions of these entities shall remain in
effect unless specifically changed or voided by the department in
accordance with the Administrative Procedures Act."
SECTION 58. Article 7, Chapter 1, Title 13 of the 1976 Code, as
added by Act 181 of 1993, is amended to read:
"Article 7
Division of Aeronautics
Section 13-1-1110. The organization and objectives of the
Division of Aeronautics, a division of the Department
of Commerce are stated in Chapters 1 through 9 of Title
55."
SECTION 59. Article 11, Chapter 1, Title 13 of the 1976 Code,
as last amended by Section 22, Part II, Act 497 of 1994, is further
amended to read:
"Article 11
Advisory Coordinating Council
for Economic Development
Section 13-1-1710. There is hereby created the Advisory
Coordinating Council for Economic Development. The membership
shall consist of the Director of the Department
Secretary of Commerce, the Commissioner of Agriculture,
the Chairman of the South Carolina Employment Security
Commission, the Director of the South Carolina Department of
Parks, Recreation and Tourism, the Chairman of the State Board for
Technical and Comprehensive Education, the Chairman of the
South Carolina Ports Authority, the Chairman of the South Carolina
Public Service Authority, the Chairman of the South Carolina Jobs
Economic Development Authority, the Chairman
Director of the South Carolina Department of Revenue
and Taxation, and the Chairman of the Small and Minority
Business Expansion Council, and the Chairman of the South
Carolina Research Authority. The Director of the
Department Secretary of Commerce shall serve as the
chairman of the advisory coordinating council.
Section 13-1-1720. (A) The advisory coordinating
council shall meet at least quarterly. It shall enhance the economic
growth and development of the State through strategic planning and
coordinating activities which must include:
(1) development and revision of a strategic state plan for
economic development. `Strategic state plan for economic
development' means a planning document that outlines strategies
and activities designed to continue, diversify, or expand the
economic base of South Carolina, based on the natural, physical,
social, and economic needs of the State;
(2) monitoring implementation of a strategic plan for
economic development through an annual review of economic
development activities or the previous year and modifying the plan
as necessary;
(3) coordination of economic development activities of
member agencies of the advisory coordinating council and
its advisory committees;
(4) use of federal funds, foundation grants, and private funds
in the development, implementation, revision, and promotion of a
strategic plan for economic development;
(5) evaluation of plans and programs in terms of their
compatibility with state objectives and priorities as outlined in the
strategic plan for economic development.;
(6) approval of infrastructure development grants for local
units of government pursuant to Section
12-21-2423.;
(7) authorization of expenditures from the
economic development account as provided in Section
12-27-1270.
(B) The advisory coordinating council may not engage in
the delivery of services.
Section 13-1-1730. The advisory coordinating council
shall make reports to the Governor, the chairmen of the Senate
Finance and House Ways and Means Committees, and the General
Assembly at least annually in the Department of Commerce's
annual report on the status and progress of economic development
goals which have been set for the State as a part of the ongoing
planning process and on the commitments, expenditures, and
balance of the Economic Development Account, with appropriate
recommendations.
Section 13-1-1740. (A) The advisory coordinating
council shall make recommendations to the Governor, the General
Assembly, and the State Budget and Control Board as to the
policies and programs involved in the state's economic development
it considers necessary to carry out the objectives of the strategic
plan.
(B) The advisory coordinating council shall review
agency requests for legislative appropriations for economic
development and may make recommendations to the Budget and
Control Board and the General Assembly concerning requests
compatible with the objectives of the strategic plan. Nothing in this
section limits an agency's direct access to the General Assembly,
and comment by the advisory coordinating council is not a
part of the budget process.
Section 13-1-1750. Funds for technical, administrative, and
clerical assistance and other expenses of the advisory
coordinating council must be provided by the member agencies.
The advisory coordinating council may establish technical
advisory committees in order to assist in the development of a
strategic plan for economic development. The advisory
coordinating council shall seek to utilize data relevant to the
economic growth and development of the State which is available
from the Department of Transportation, the University of South
Carolina, Clemson University, and other state agencies and
organizations.
Section 13-1-1760. If any provision of Sections 13-1-1710
through 13-1-1760 is in conflict with any existing provisions of law
pertaining to the member agencies of the advisory
coordinating council, notwithstanding the fact that the provisions of
law contained in Sections 13-1-1710 through 13-1-1760 have a later
effective date, the prior provision controls. Neither Sections
13-1-1710 through 13-1-1760 nor the advisory coordinating
council shall infringe upon nor diminish the self-governing
autonomy of the agencies involved."
SECTION 60. Section 13-17-40 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 13-17-40. The authority shall consist
consists of a board of twenty-two trustees that includes the
following ex officio members: President of the Council of Private
Colleges of South Carolina, Chairman of the South Carolina
Commission on Higher Education, President of Clemson University,
President of the Medical University of South Carolina, President of
South Carolina State College, President of the University of South
Carolina, President of Francis Marion College, Chairman of the
State Board for Technical and Comprehensive Education,
Chairman of the State Development Board Secretary of
Commerce or his designee, Governor of South Carolina or his
designee, and Chairman of the Technical Advisory Board of the
Authority.
The Governor shall name the chairman who must not be a public
official and who shall serve at the pleasure of the Governor.
The remaining ten trustees must be elected by the board of
trustees from a list of nominees submitted by an ad hoc committee
named by the chairman and composed of the members serving as
elected trustees. The original elected trustees must be the same
members serving as elected trustees on the authority's predecessor
organization on January 1, 1983, for the terms specified by the
bylaws of the authority's predecessor. Each of the Congressional
Districts of South Carolina shall must have at least
one of the ten trustees.
Terms of elected trustees are for four years, and half shall
expire every two years. No elected trustee shall
may serve more than two consecutive four-year elected
terms. Vacancies must be filled for the unexpired term in the
manner of original appointment.
Ex officio trustees shall serve as long as they are elected
or appointed to their respective offices. In the event of a vacancy
of a public sector trustee, the person who temporarily performs the
official's functions shall serve as an interim trustee until a new
official is elected or appointed.
A vacancy occurs upon the expiration of the term of service,
death, resignation, disqualification, or removal of any
a trustee. No trustee shall may receive a
salary for his services as a trustee;. However, all
shall must be reimbursed for actual expenses
incurred in service to the authority.
The board annually shall annually submit a report
to the General Assembly including information on all acts of the
board of trustees together with a financial statement and full
information as to the work of the authority. The board shall hire a
director who shall maintain through a designated agent accurate and
complete books and records of account, custody, and responsibility
for the property and funds of the authority and control over the
authority bank account. The director, with the approval of the
board, has the power to appoint officers and employees, to prescribe
their duties, and to fix their compensation. The board of trustees
shall select a reputable certified public accountant to audit the books
of account at least once each year.
Regular meetings of the board of trustees must be held at
such the time and place as the board of
trustees may determine. Special meetings of the board of trustees
may be called by the chairman when reasonable notice is
given."
SECTION 61. The first two unnumbered paragraphs of Section
16-3-1120 of the 1976 Code, as last amended by Act 181 of 1993,
are further amended to read:
"Section 16-3-1120. A director of the Victim's
Compensation Fund must be appointed by the Governor and shall
serve at his pleasure. The director is responsible for administering
the provisions of this article. Included among the duties of the
director is the responsibility, with approval of after
consultation with the South Carolina Crime Victim's Advisory
Board as established in this article, for developing and
administering a plan for informing the public of the availability of
the benefits provided under this article and procedures for filing
claims for the benefits.
The director, upon approval by the South Carolina Crime
Victim's Advisory Board, has the following additional powers
and duties:"
SECTION 62. Section 16-3-1130(3) of the 1976 Code, as last
amended by Act 181 of 1989, is further amended to read:
"(3) The field representative conducting the investigation
shall file with the deputy director a written report setting
forth a recommendation and his reason for the recommendation.
The deputy director shall render a written decision and
furnish the claimant with a copy of the decision."
SECTION 63. Section 16-3-1140 of the 1976 Code, as last
amended by Act 181 of 1989, is further amended to read:
"Section 16-3-1140. (1) The claimant may, within thirty
days after receipt of the report of the decision of the Deputy
Director director make an application in writing to the
Deputy Director director for review of the decision.
(2) Upon receipt of an application for review pursuant to
subsection (1) of this section, the Deputy Director
director shall forward all relevant documents and
information to the Chairman of the Crime Victim's Advisory Board.
The Chairman chairman shall appoint a
three-member panel of the Board board which shall
review the records and affirm or modify the decision of the
Deputy Director director; provided, that the
Chairman chairman may order, in his discretion,
that any particular case must be heard by the full Board
board. If considered necessary by the Board
board or its panel or if requested by the claimant, the
Board board or its panel shall order a hearing prior
to rendering a decision. At the hearing any relevant evidence, not
legally privileged, is admissible. The Board board
or its panel shall render a decision within ninety days after
completion of the investigation. The action of the Board
board or its panel is final and nonappealable. If the
Deputy Director director receives no application for
review pursuant to subsection (1), his decision becomes the final
decision of the Victim's Compensation Fund.
(3) The Board board or its panel, for purposes
of this article, may subpoena witnesses, administer or cause to be
administered oaths, and examine such parts of the books and
records of the parties to proceedings as relate to questions in
dispute.
(4) The Deputy Director director shall within
ten days after receipt of the Board's board's or
panel's final decision make a report to the claimant including a
copy of the final decision and the reasons why the decision was
made."
SECTION 64. Section 16-3-1150 of the 1976 Code, as last
amended by Act 181 of 1989, is further amended to read:
"Section 16-3-1150. Notwithstanding the provisions of
Section 16-3-1130, if it appears to the deputy director that
the claim is one with respect to which an award probably will be
made and undue hardship will result to the claimant, if immediate
payment is not made, the deputy director may make one or
more emergency awards to the claimant pending a final decision in
the case, provided that (a) the amount of each emergency award
shall not exceed five hundred dollars, (b) the total amount of such
emergency awards shall not exceed one thousand dollars, (c) the
amount of such emergency awards must be deducted from any final
award made to the claimant, and (d) the excess of the amount of
any emergency award over the amount of the final award, or the
full amount of any emergency award if no final award is made,
must be repaid by the claimant to the Victim's Compensation Fund
as created by this article."
SECTION 65. Section 16-3-1200 of the 1976 Code is amended
to read:
"Section 16-3-1200. In determining the amount of an
award, the Deputy Director director, the board, or
its panel shall determine whether because of his conduct the victim
or intervenor of such crime contributed to the infliction of his
injury, and the Deputy Director director, the
Board board, or its panel may reduce the amount of
the award or reject the claim altogether in accordance with such
determination; provided, however, the Deputy Director
director, the Board board, or its panel may
disregard for this purpose the contribution of an intervenor for his
own injury or death where the record shows that the contribution
was attributable to efforts by the intervenor as set forth in
subsection (8) of Section 16-3-1110."
SECTION 66. Section 16-3-1230(3) of the 1976 Code is
amended to read:
"(3) Claims must be filed in the office of the Deputy
Director director by mail or in person. The Deputy
Director director shall accept for filing all claims
submitted by persons eligible under subsection (1) of this section
and meeting the requirements as to the form of the claim contained
in the regulations of the Board board."
SECTION 67. Section 16-3-1260 of the 1976 Code is amended
to read:
"Section 16-3-1260. (1)Any A payment of
benefits to, or on behalf of, a victim or intervenor or eligible family
member under this article shall create creates a debt
due and owing to the State by any a person found
in a court of competent jurisdiction of this State to have committed
such the criminal act.
(2) The circuit court, when placing on probation any
a person who owes a debt to the State as a consequence of
a criminal act, may set as a condition of probation the payment of
the debt or a portion of the debt to the State. The court
also may also set the schedule or amounts of
payments subject to modification based on change of circumstances.
(3) The Department of Probation, Parole and
Community Corrections shall Pardon Services also
have has the right to make payment of the debt or a
portion of the debt to the State a condition of parole.
(4) When a juvenile is adjudicated delinquent in a family court
proceeding involving a crime upon which a claim under this article
can be made, the family court in its discretion may order that the
juvenile pay the debt to the Victim's Compensation Fund as created
by this article as an adult would have to pay had an adult
committed the crime. Any assessments so ordered may be
made a condition of probation as provided in Section 20-7-1330.
(5) Payments authorized or required under this section must be
paid to the Victim's Compensation Fund. The Director of the
Victim's Compensation Fund shall coordinate the development of
policies and procedures for the South Carolina Department of
Corrections, the South Carolina Office of Court
Administration, and the South Carolina Board
Department of Probation, Parole and
Community Corrections Pardon Services to assure
that victim restitution programs are administered in an effective
manner to increase payments into the Compensation Fund.
(6) Restitution payments to the Victim's Compensation Fund
may be made by the Department of Corrections from wages
accumulated by offenders in its custody who are subject to this
article, except that offenders wages shall must not
be used for this purpose if such the monthly wages
are at or below minimums required to purchase basic
necessities."
SECTION 68. Section 16-3-1300 of the 1976 Code, as last
amended by Act 489 of 1984, is further amended to read:
"Section 16-3-1300. Any award made under this article
must be paid in accordance with the discretion and decision of the
Deputy Director director as to the manner of
payment, subject to the regulations of the board and not inconsistent
with the Board's board's or panel's award. No
award made pursuant to this article is subject to garnishment,
execution, or attachment other than for expenses resulting from the
injury which is the basis for the claim. In every case providing for
an award to a claimant under this article, the Deputy
Director director, the Board board, or
its panel may, if in its opinion the facts and circumstances of the
case warrant it, convert the award to be paid into a partial or total
lump sum, without discount."
SECTION 69. Section 16-3-1340 of the 1976 Code, as last
amended by Act 181 of 1989, is further amended to read:
"Section 16-3-1340. A claimant may be represented by an
attorney in proceedings under this article. Fees for such attorney
must be paid from the Victim's Compensation Fund, subject to the
approval of the Director director, except that in the
event of an appeal pursuant to Section 16-3-1140, attorneys' fees
are subject to the approval of the Board board or its
panel hearing the appeal. Attorneys for the South Carolina
Workers' Compensation Fund shall represent the South Carolina
Victim's Compensation Fund in proceedings under this article.
Any person who receives any fee or other consideration or any
gratuity on account of services so rendered, unless such
consideration or gratuity is approved by the Deputy Director
director, or who makes it a business to solicit employment
for a lawyer or for himself in respect to any claim or award for
compensation is guilty of a misdemeanor and, upon
conviction, must for each offense, be punished by a
fine of not more than five hundred dollars or by imprisonment not
to exceed one year, or by both such fine and imprisonment."
SECTION 70. Section 16-3-1410 of the 1976 Code is amended
to read:
"Section 16-3-1410. The Victim Victim's
Compensation Fund is authorized to provide the following victim
assistance services, contingent upon an appropriation of funds
therefor by the General Assembly:
(A) Provide information, training, and technical assistance to
state and local agencies and groups involved in victim/witness and
domestic violence assistance, such as the Attorney General's Office,
the solicitors' offices, law enforcement agencies, judges,
hospital staff, rape crisis centers, and spouse abuse shelters.
(B) Provide recommendations to the Governor and General
Assembly on needed legislation and services for victims.
(C) Serve as a clearinghouse of victim/witness information.
(D) Develop guidelines for the implementation of victim/witness
assistance programs.
(E) Develop ongoing public awareness and programs to assist
victims, such as newsletters, brochures, television and radio spots
and programs, and news articles.
(F) Provide staff support for a state level advisory group
representative of all agencies and groups involved in victim/witness
and domestic violence services to improve coordination efforts.
(G) Coordinate the development and implementation of policy
and guidelines for the treatment of victims/witnesses with
appropriate agencies, with initial emphasis in the following three
areas:
(1) The State Victim/Witness Program shall work with the
solicitors of this State, the Attorney General's Office, and relevant
professional organizations to develop guidelines for
solicitors to follow in the handling of victims, to include but
not be limited to:
(a) Periodically informing victims of the status of a case.
(b) Providing information to the court on the views of
victims of violent crime on bail decisions, continuances, plea
bargains, dismissals, sentencing, and restitution.
(c) Pursuing charges of defendants who harass, threaten,
injure, or otherwise attempt to intimidate or retaliate against victims
or witnesses.
(d) Utilizing a victim and witness on-call system.
(e) Developing procedures for the prompt return of
victims' property.
(f) Considering the views of victims and witnesses
concerning the use of case continuances.
(g) Informing the solicitors' offices about victim assistance
units and their effectiveness.
(h) Informing victims of the availability of civil as well as
criminal redress.
(2) The State Victim/Witness Program shall assist the Office
of Court Administration and South Carolina Sentencing Guidelines
Commission in developing guidelines for all judges to follow in the
handling of victims, to include but not be limited to:
(a) Scheduling of court proceedings and an on-call
notification system.
(b) Separate waiting rooms for prosecution and defense
witnesses.
(c) Special weight for a victim's interests when
considering requests for continuances.
(d) Special weight must be given to the victim's interest in
speedy return of property before trial in ruling on the admissibility
of photographs of that property.
(e) Child sexual assault/incest victims must be given
practical legal support by allowing them videotape, legal transcript,
or closed session testimony.
(3) The State Victim/Witness Program shall work with the
appropriate law enforcement officers' associations and other
relevant organizations to develop guidelines and model policies for
law enforcement agencies to utilize in handling and working with
victims of crime."
SECTION 71. Section 16-3-1550 of the 1976 Code, as last
amended by Act 579 of 1988, is further amended to read:
"Section 16-3-1550. (A) The provisions of this section
govern the disposition of any offense within the jurisdiction of the
General Sessions Court general sessions court,
excluding any crime for which a sentence of death is sought, in any
case which involves an identified victim whose whereabouts are
known. At the option of the solicitor, the provisions of this
section also may be extended into the family court in conjunction
with the prosecution of juvenile offenders.
(B) It is the responsibility of the solicitor's Victim
or/Witness Assistance Unit unit in
each judicial circuit or a representative designated by the solicitor
or law enforcement agency handling the case to advise
all victims of their right to submit to the court, orally or in
writing at the victim's option, a victim impact statement to be
considered by the judge at the sentencing or disposition hearing in
general sessions court and at a parole hearing. The solicitor's office
or law enforcement agency shall provide a copy of the
written form to any victim who wishes to make a written report. In
those cases which the solicitor determines that there has been
extensive or significant impact on the life of the victim, the Victim
or/Witness Assistance Unit unit
shall assist the victim in completing the form. The victim shall
submit this statement to the solicitor's office within appropriate
time limits set by the solicitor to be filed in the court records by the
solicitor's office so it may be available to the defense for a
reasonable period of time prior to sentencing. The court shall allow
the defendant to have the opportunity to rebut the victim's written
statement if the court decides to review any part of the statement
before sentencing. If the defendant is incarcerated, the solicitor
shall forward a copy of the impact statement and copies of all
completed Victim/Witness Notification Requests to the
Department of Corrections and to the Parole and Community
Corrections Board Department of Probation, Parole and
Pardon Services. In the case of juvenile offenders, if the
solicitor so opts, a copy shall be forwarded to the appropriate office
of the Department of Juvenile Justice if the disposition of the case
involves any level of supervision by that agency. Solicitors
shall begin using these victim impact statements no later than
January 1, 1985.
(C) The Attorney General's Office Executive
Director of the Commission on Prosecution Coordination, in
coordination with the solicitors, shall develop a standard
form forms for the victim impact statement. For
this purpose, the Attorney General executive
director may seek the assistance of any other state agency or
department in developing this form. The Attorney General's
office shall distribute this form to all solicitor's offices no later than
November 1, 1984.
(D) The victim impact statement shall:
(1) Identify the victim of the offense;
(2) Itemize any economic loss suffered by the victim as a
result of the offense;
(3) Identify any physical and psychological injury suffered by
the victim as a result of the offense, along with its seriousness and
permanence;
(4) Describe any changes in the victim's personal welfare or
familial relationships as a result of the offense;
(5) Identify any request for psychological services initiated by
the victim or the victim's family as a result of the offense;
(6) Contain any other information related to the impact of the
offense upon the victim; and
(7) The original of the statement must be included in the
court file with one copy for the solicitor and one copy for the
victim upon request.
(E)(F) No sentence may be invalidated because of failure
to comply with the provisions of this section. This section must not
be construed to create any cause of action for monetary
damages."
SECTION 72. Section 17-17-100 of the 1976 Code is amended
to read:
"Section 17-17-100. Any A judge before
whom a petition for a writ of habeas corpus is made by any
a person confined by the State Board
Department of Corrections in any of its places of
confinement who has been tried and convicted by a court of
competent jurisdiction, shall upon issuance of the writ of
habeas corpus, shall transfer the matter for hearing
to any a judge of any a court of
competent jurisdiction in the county where the person was
convicted."
SECTION 73. Section 17-22-120 of the 1976 Code, as last
amended by Act 499 of 1992, is further amended to read:
"Section 17-22-120. In any a case in
which an offender agrees to an intervention program, a specific
agreement must be made between the solicitor and the offender.
This agreement shall must include the terms of the
intervention program, the length of the program and a section
stating the period of time after which the prosecutor will either
dismiss the charge or seek a conviction based upon that charge.
The agreement must be signed by the offender and his or her
counsel, if represented by counsel, and filed in the solicitor's office.
The Commission on Department of Alcohol and
Other Drug Abuse Services shall provide training
if requested on the recognition of alcohol and drug abuse to
counselor employees of local pretrial intervention
programs, and the local agency authorized by Section
61-5-320 shall provide services to alcohol and drug abusers if
referred by pretrial intervention programs. However, no services
may be denied due to an offender's inability to pay."
SECTION 74. Section 17-25-80 of the 1976 Code is amended to
read:
"Section 17-25-80. Notwithstanding the specific language
of the sentence which confines an inmate to `hard labor' in the
custody of the State Department of Corrections, the
Commissioner thereof director may assign
such the inmate to the type of labor he
deems considers appropriate and necessary for the
benefit of the department and the inmate concerned, and
such the assignment shall fulfill the conditions of
the sentence."
SECTION 75. Section 17-25-145 of the 1976 Code is amended
to read:
"Section 17-25-145. The Department of Probation,
Parole and Community Corrections Pardon Services
must implement a community penalties program in each judicial
circuit of the State. The department at its discretion may operate
the program or contract with public or private agencies for
necessary services. Agencies or individuals may contract to prepare
individual community penalty program plans for offenders in a
particular judicial circuit as prescribed by the department."
SECTION 76. Section 17-25-370 of the 1976 Code is amended
to read:
"Section 17-25-370. In all criminal cases in which the
sentence of death is imposed and which are appealed to the
Supreme Court or in which notice of intention to appeal is given,
when the judgment below has been affirmed or the appeal dismissed
or abandoned, the clerk of the Supreme Court, when the remittitur
is sent down or the appeal is dismissed or abandoned, shall notify
the Commissioner director of the prison system or
his duly appointed officer in charge of the State Penitentiary
of the final disposition of such the appeal and, on
the fourth Friday after the receipt of such the notice
the sentence appealed from shall must be
duly carried out as provided by law in such cases,
unless stayed by order of the Supreme Court or respite or
commutation of the Governor."
SECTION 77. Section 17-25-380 of the 1976 Code is amended
to read:
"Section 17-25-380. Two copies of the notice shall
must be served or sent by registered mail to the
Commissioner director of the prison system or his
duly appointed officer in charge of the State Penitentiary.
The notice, when the sentence has been affirmed, shall
must read substantially as follows: `This is to notify you
that the sentence of death imposed in the case of State vs.
from which an appeal has been taken has been affirmed and
finally disposed of by the Supreme Court and the remittitur has
been sent down to the clerk of the court of general sessions of
County. It is, therefore, required of you by Section
17-25-370 of the Code of Laws of South Carolina to execute the
judgment and sentence of death imposed on said defendant or
defendants (if more than one) on the fourth Friday after the service
upon you or receipt of this notice.'
When the appeal has been dismissed or abandoned the notice
shall must be substantially the same as when the
sentence has been affirmed except that the first sentence
thereof of the notice shall read as follows:
`This is to notify you that the appeal from the sentence of death
imposed in the case of State vs. has been dismissed
(or abandoned) and the notice has been sent down to the clerk of
the court of general sessions of County.'"
SECTION 78. Section 17-25-400 of the 1976 Code is amended
to read:
"Section 17-25-400. The Commissioner
director of the prison system or his duly appointed
officer shall immediately serve immediately one of
the copies of the notice upon the defendant personally."
SECTION 79. Section 20-7-640(D) of the 1976 Code is amended
to read:
"(D) The County Department of Social Services in each
county is designated as the Child Protective Service Agency, whose
duties are set forth in Section 20-7-650. The county in which the
child resides shall be the legal place of venue; provided, that in
conjunction with the powers enumerated in this section, each
County Board of Social Services shall appoint an advisory board to
be composed of resident professionals in the county in which the
child resides in the fields of medicine, including nurses, education,
health, social workers, members of the clergy and law enforcement
officials, if available for the purpose of determining the course of
protective action to be taken by the County Department of Social
Services. These recommendations are to be deemed advisory only.
These appointments to the advisory board shall be made in a
nondiscriminatory manner."
SECTION 80. Section 20-7-690(C)(4) of the 1976 Code is
amended to read:
"(4) any person engaged in a bona fide research purpose,
with written permission of and with any limitations imposed by the
Commissioner Director of the State Department of
Social Services;"
SECTION 81. Section 20-7-2020 of the 1976 Code is amended
to read:
"Section 20-7-2020. The officers and agencies of this State
and its subdivisions having authority to place children are
empowered to enter into agreements with appropriate officers or
agencies of or in other party states pursuant to item (b) of
subsection 5 of the Interstate Compact on the Placement of
Children. Any agreement which contains a financial commitment
or imposes a financial obligation of this State or subdivision or
agency of it is not binding unless it has the approval in writing of
the State Treasurer in the case of the State and of the
Commissioner Director of the Department of Social
Services in the case of a subdivision of the State, as their respective
functions and duties may appear and be appropriate pursuant to this
subarticle."
SECTION 82. The first paragraph of Section 20-7-2340 of the
1976 Code is amended to read:
"The department shall establish fees for certain adoption
and related services. The fees must be charged on a scale related to
income as established by the state board department,
but the inability to pay a fee does not preclude the providing of any
service."
SECTION 83. Section 20-7-2379 of the 1976 Code, as last
amended by Section 11, Part II, Act 497 of 1994, is further
amended to read:
"Section 20-7-2379. (A) There is created, as part
of the Office of the Governor, the Division for Review of the
Foster Care of Children. The division must be supported by a
board consisting of seven members, all of whom must be past or
present members of local review boards. There must be one
member from each congressional district and one member from the
State at large, all appointed by the Governor with the advice and
consent of the Senate. Terms of office for the members of the
board are for four years and until their successors are appointed and
qualify. Of the initial appointments, the Governor shall designate
two members to serve for one year, two for a term of two years,
two for a term of three years, and one for a term of four years.
Thereafter After the initial appointments,
appointments must be made by the Governor in the manner as
prescribed above in this section for terms of four
years to expire on June thirtieth of the appropriate year. The board
shall elect from its members a chairman who shall serve for two
years. Four members of the board constitute a quorum for the
transaction of business. Members of the board shall receive per
diem, mileage, and subsistence as provided by law for members of
boards, commissions, and committees while engaged in the work of
the board.
(B) The board shall meet at least quarterly and more
frequently upon the call of the division director to review and
coordinate the activities of the local review boards and make
recommendations to the General Assembly with regard to foster
care policies, procedures, and deficiencies of public and private
agencies which arrange for foster care of children as determined by
the review of cases provided for in items (A) and (B) of
Section 20-7-2376(A) and (B). These recommendations
must be included in an annual report, filed with the General
Assembly, of the activities of the state office and local review
boards. The board, upon recommendation of the division director,
shall promulgate regulations to carry out the provisions of this
subarticle. These regulations shall provide for and must be limited
to procedures for:
(1) reviewing reports and other necessary
information at state, county, and private agencies and facilities;
(2) scheduling of reviews and notification of
interested parties;
(3) conducting local review board and board of
directors' meetings;
(4) disseminating local review board
recommendations, including reporting to the appropriate Family
Court family court judges the status of judicially
approved treatment plans; and
(5) developing policies for summary review of
children privately placed in privately-owned facilities or group
homes.
(C) The Governor may employ a division director to
serve at his pleasure who may be paid an annual salary to be
determined by the Governor. The director may be removed
pursuant to the provisions of Section 1-3-240. The director shall
employ staff as is necessary to carry out the provisions of
this subarticle, and the staff must be compensated in an amount and
in a manner as may be determined by the Governor. The
provisions of this subarticle may must not be
construed to provide for subpoena authority."
SECTION 84. Section 20-7-2640(C) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(C) The Department of Health and Human Services or
the Department of Social Services shall provide coverage and
benefits for a child who is in another state and who is covered by
an adoption assistance agreement made by the department
Department of Social Services for the coverage or benefits,
if any, not provided by the residence state. To this end, the
adoptive parents acting for the child may submit evidence of
payment for services or benefit amounts not payable in the
residence state and must be reimbursed for them. However, there is
no reimbursement for services or benefit amounts covered under
insurance or other third party medical contract or arrangement held
by the child or the adoptive parents. The department
Department of Social Services shall promulgate regulations
implementing this subsection. The additional coverages and benefit
amounts provided pursuant to this subsection are for the costs of
services for which there is no federal contribution, or which, if
federally aided, are not provided by the residence state. The
regulations must include, but are not limited to, procedures to be
followed in obtaining prior approval for services in those instances
where required for the assistance."
SECTION 85. Section 20-7-2880(c) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(c) The decision of the department is final unless
appealed by a party to an administrative law judge pursuant
to the Administrative Procedures Act."
SECTION 86. Section 20-7-2930 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 20-7-2930. Whenever the health or fire safety
agency finds upon inspection that a child day care center or group
day care home is not complying with the applicable regulations, the
appropriate agency shall notify the department. The department
shall then request the operator to correct such deficiencies.
a. Every correction notice shall be in writing and shall include
a statement of the deficiencies found, the period within which the
deficiencies must be corrected and the provision of the subarticle
and regulations relied upon. The period shall be reasonable and,
except when the appropriate agency finds an emergency dangerous
to the health or safety of children, not less than thirty days from the
receipt of such notices.
b. Within two weeks of receipt of such notice, the operator of
the facility may file a written request with the department for
administrative reconsideration of the notice or any portion thereof.
c. The department shall grant or deny a written request and
shall notify the operator of action taken.
d. In the event that the operator of the facility fails to correct
deficiencies within the period prescribed, the department may
suspend the registration of the facility to be effective thirty days
after date of notice. An appeal may be taken to an
administrative law judge pursuant to the Administrative
Procedures Act."
SECTION 87. Section 20-7-2940 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 20-7-2940. a. When the registration of a
facility has been suspended, the operator must be given prompt
written notice. The notice must indicate the reasons for the
suspension and inform the operator of the right to appeal the
decision through administrative channels to the department and
according to established appeals procedure for the department.
b. Upon appeal, the decision of the department is final unless
appealed by a party to an administrative law judge pursuant
to the Administrative Procedures Act."
SECTION 88. Section 20-7-3230(A)(4) of the 1976 Code, as last
amended by an Act of 1994 bearing Ratification No. 585, is further
amended to read:
"(4) providing juvenile detention services for juveniles
charged with having committed a criminal offense who are found,
after a detention screening or detention hearing, to require detention
or placement outside the home pending an adjudication of
delinquency or dispositional hearing. Detention services provided
by the department for the benefit of the counties of this State must
include secure juvenile detention centers. The size and capacity of
the juvenile detention facilities needed shall must be
determined by the department after its consideration and review of
American Correctional Association standards for the design,
construction, and operation of juvenile detention facilities. These
recognized national standards must be met or exceeded by the
department in determining the size and capacity of the juvenile
detention centers and in planning for the construction and operation
of the facilities. The department shall determine and announce the
anticipated maximum operational capacity of each facility and shall
contact each county governmental body in this State for the purpose
of determining which counties anticipate utilizing these facilities
upon each facility becoming operational. The department shall
inform each county governmental body of the existing state and
federal laws regarding the confinement of juveniles charged with
committing criminal offenses, of each county's ability to develop its
own facility or to contract with other counties for the development
of a regional facility, and of the availability of the department's
facilities. This notice must be provided to each county for the
purpose of determining which county governmental bodies desire to
enter into an intergovernmental agreement with the department for
the detention of juveniles from their particular county who are
charged with committing a criminal offense for which pretrial
detention is both authorized and appropriate. No later than
September 1, 1993, the department shall report to the Budget and
Control Board on the strategy of each county to comply with
Sections 20-7-600 and 20-7-605. The department must include with
its report a plan for the construction and the operation of those
facilities which are projected to be necessary for the preadjudicatory
detention of juveniles in this State. No later than September first of
each subsequent year, the department shall report to the board on
the status of all preadjudicatory juvenile detention facilities known
to be operational or planned, regardless of ownership or
management. The board then will coordinate with all responsible
and affected agencies and entities to ensure that adequate funding is
identified to prevent the detention or incarceration of juveniles in
adult jails anywhere within the State of South Carolina. Upon
completion of each facility and upon the determination by the Jail
and Prison Inspection Division of the Department of Corrections
that each facility is staffed in accordance with relevant standards
and can be operated in accordance with these standards, the division
shall determine and announce the rated capacity of each facility. A
facility operated by the Department of Youth Services
Juvenile Justice for the preadjudicatory detention of
juveniles must be maintained and continued in operation for that
purpose until approved for conversion or closure by the Budget and
Control Board. However, a county which decides to maintain its
own approved facilities or which has entered into a regional
intergovernmental agreement, which has provided secure facilities
for preadjudicatory juveniles, and which meets the standards set
forth above, may continue to operate these facilities. County and
regionally operated facilities are subject to inspection by the Jail
and Prison Inspection Division of the Department of Corrections for
compliance with the standards set forth above and those created
pursuant to Section 24-9-20. The division has the same
enforcement authority over county and regionally operated secure
juvenile detention facilities as that which is provided in Section
24-9-30. A juvenile ordered detained in a facility must be screened
within twenty-four hours by a social worker or, if considered
appropriate, by a psychologist, in order to determine whether the
juvenile is emotionally disturbed, mentally ill, or otherwise in need
of services. The services must be provided immediately. In
Department of Youth Services Juvenile Justice
operated facilities, the department shall determine an amount of per
diem for each child detained in a center, which must be paid by the
committing county. The per diem paid by the county must be
based on the average operating cost among all preadjudicatory state
facilities. The Department of Youth Services Juvenile
Justice must assume one-third of the per diem cost and the
committing county must assume two-thirds of the cost. Per diem
funds received by the department must be placed in a separate
account by the department for operation of all preadjudicatory state
facilities. Transportation of the juvenile to and from a facility is
the responsibility of the local law enforcement agency which takes
the juvenile into custody. Transportation of juveniles between
department facilities, if necessary, is the responsibility of the
department."
SECTION 89. Section 20-7-5420(A) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(A) The State Council on Maternal, Infant, and Child
Health shall consist of the following members:
(1) the Director Commissioner of the South
Carolina Department of Health and Environmental Control; the
State Superintendent of Education or his designee; the State
Director of Social Services; the Director of the South
Carolina Department of Alcohol and Other Drug Abuse Services;
the State Director of Mental Health; the State Director of the
Department of Disabilities and Special Needs; the Director of the
Department of Health and Human Services; and the
Commissioner of the South Carolina Commission for the Blind;
and the Chairman of the Statewide Health Coordinating
Council; and
(2) a member of the Health Care Planning and Oversight
Committee, to be appointed by the chairman; and a member of
the Joint Legislative Committee on Children and Families,
to be appointed by the chairman.
The Governor shall appoint one representative of each of the
following organizations as a member of the council: South
Carolina Medical Association; South Carolina Chapter of the
American Academy of Pediatrics; South Carolina Chapter of the
American College of Obstetrics and Gynecology; South Carolina
Chapter of the Academy of Family Practice; South Carolina
Hospital Association; Medical University of South Carolina;
University of South Carolina School of Medicine; Clemson
University Extension Service; South Carolina Congress of Parents
and Teachers; Developmental Disabilities Council; South Carolina
March of Dimes; South Carolina Nurses Association; and South
Carolina Perinatal Association.
The Governor shall appoint one member from each of the six
congressional districts of the State who represents business, civic,
community, and religious groups.
The Governor may appoint other ex officio members to the
council as are needed to provide information to assist in the work
of the council."
SECTION 90. Section 20-7-5910(A) of the 1976 Code, as last
amended by Act 502 of 1994, is further amended to read:
"(A) There is created a multi-disciplinary State Child
Fatality Advisory Committee composed of:
(1) the Commissioner Director of the South
Carolina Department of Social Services;
(2) the Commissioner of the South Carolina Department of
Health and Environmental Control;
(3) the State Superintendent of Education;
(4) the Executive Director of the South Carolina
Criminal Justice Academy Department of Public
Safety;
(5) the Chief of the State Law Enforcement Division;
(6) the Commissioner Director of the
South Carolina Commission on Department of
Alcohol and Other Drug Abuse Services;
(7) the Commissioner Director of the State
Department of Mental Health;
(8) the Commissioner Director of the
State Department of Mental Retardation
Disabilities and Special Needs;
(9) the Commissioner Director of the
Department of Youth Services Juvenile Justice;
(10) an attorney with experience in prosecuting crimes against
children;
(11) a county coroner or medical examiner;
(12) a pediatrician with experience in diagnosing and treating
child abuse and neglect, appointed from recommendations submitted
by the State Chapter of the American Academy of Pediatrics;
and
(13) a solicitor.;
(14) a forensic pathologist; and
(15) two members of the public at large, one of which must
represent a private nonprofit organization that advocates children
services."
SECTION 91. Section 23-4-20 of the 1976 Code is amended to
read:
"Section 23-4-20. As used in this chapter:
(A) `Committee' means the Governor's Committee on Criminal
Justice, Crime and Delinquency.
(B) `Advisory Council' means the Juvenile Justice Advisory
Council.
(C) `J.P.C.' means the Judicial Planning Committee.
(D) `Office' means the Division of Public Safety
Programs, Office of the Governor Department of
Public Safety, unless the context indicates otherwise.
(E) `Criminal justice system and agencies' shall encompass all
state, local, and private nonprofit agencies and organizations
involved in law enforcement including line police agencies, adult
and juvenile corrections, adult and juvenile courts, prosecution and
defense, as well as private eleemosynary organizations of
professional or citizen membership involved in the system including
organizations directly related to crime and delinquency
prevention."
SECTION 92. Section 23-4-110 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 23-4-110. There is created the Governor's
Committee on Criminal Justice, Crime and Delinquency. The
committee must be composed of persons named by the Governor
from the State at large who are representative of agencies and
organizations comprising the state's criminal justice system as
defined by this chapter. In addition to the gubernatorially-appointed
members, the following criminal justice agency heads
officials are ex officio voting members:
(A) Commissioner Director, South Carolina
Department of Corrections;
(B) Executive Director, South Carolina Department of
Parole and Community Corrections Probation, Parole
and Pardon Services;
(C) Chief, State Law Enforcement Division;
(D) State Attorney General;
(E) Commander, State Highway Patrol Director,
Department of Public Safety;
(F) Commissioner Director, South Carolina
Department of Youth Services Juvenile Justice;
(G) Director, South Carolina Office of Court Administration;
(H) Chief Justice, South Carolina Supreme Court;
(I) Director, South Carolina Commission on
Department of Alcohol and Other Drug Abuse
Services;
(J) Executive Director, South Carolina Criminal Justice
Academy;
(K)(J) Chairman, Governor's Juvenile Justice
Advisory Council.
The Governor shall appoint the at-large members who shall serve
at his pleasure. The number of appointed at-large voting members
on the committee shall may not exceed
twenty-eight. The Governor shall appoint the chairman of the
committee. The Director of the Division of Public Safety
Programs Department of Public Safety shall
designate a department employee to serve as the executive
secretary of the committee. The executive secretary of
the committee but may not vote. Support staff for the
committee must be provided by the Division of Public Safety
Programs Department of Public Safety."
SECTION 93. Section 23-4-520(B) of the 1976 Code is amended
to read:
"(B) To analyze South Carolina's activities in the
administration of criminal justice and the nature of the problems
confronting it and to make recommendations and to develop
comprehensive plans of action for the improvement of criminal
justice for crime and delinquency control and related matters for
consideration and implementation by the appropriate agencies of
state and local government. In developing such
these plans, the office shall draw upon the planning
capabilities of other agencies such as the Judicial Department, the
Department of Corrections, the Department of Youth
Services Juvenile Justice, the Office of the Attorney
General, and the State Law Enforcement Division;"
SECTION 94. Section 23-6-10 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 23-6-10. For the purposes of this title, the
following words, phrases, and terms are defined as follows:
(1) `Department' means the Department of Public Safety.
(2) `Director' means the chief administrative officer of the
Department of Public Safety.
(3) `Deputy director' means the administrative head of a
division of the department."
SECTION 95A. Section 23-6-40(B) and (C) of the 1976 Code,
as last amended by Act 181 of 1993, are further amended to read:
"(B) The director must administer the affairs of the
department and must represent the department in its dealings with
other state agencies, local governments, special purpose districts,
and the federal government. The director must appoint a deputy
director for each division and employ such other
personnel for each division or office and prescribe their
duties, powers, and functions as he considers necessary and as may
be authorized by statute and for which funds have been authorized
in the annual general appropriation act.
(C) The deputy director for each division shall serve at the
pleasure of the director. Each deputy director may receive
compensation as established under the provisions of Section
8-11-160 and for which funds have been authorized in the annual
general appropriation act."
SECTION 95B. Chapter 6, Title 23 of the 1976 Code is
amended by adding:
"ARTICLE 8
Section 23-6-350. The Governor may appoint and commission
as special Department of Public Safety constables such persons as
shall be recommended to him in writing by the director of the
department. Such special department constables shall serve without
compensation from the State or any of its political subdivisions.
The director may only recommend former employees of the
department, including any of its divisions or offices prior to July 1,
1993.
Section 23-6-360. The appointment of a special department
constable under this chapter shall be for a term of four years. Any
such constable may be summarily removed by the director upon his
own initiative or at the request of the Governor or his duly
authorized representative.
Section 23-6-370. All special department constables appointed
under this chapter shall be required to take the oath prescribed by
Section 26, Article III of the Constitution of 1895. Every such
special department constable shall give and file in the office of the
Secretary of State a surety bond in the penal sum of two thousand
dollars conditioned upon the payment of any judgment recovered
against him in any court of competent jurisdiction upon a claim or
cause of action arising out of breach or abuse of official duty or
power or other unlawful act committed under color of office.
Section 23-6-380. Each such special department constable shall
possess all of the rights and powers prescribed by law for
constables. In addition to any other duties, the director may request
the assistance of department constables as circumstances warrant.
No special department constable shall be appointed until he has
successfully completed a course of training as prescribed by the
director.
Section 23-6-390. The department shall not be responsible for
the malfeasance, nonfeasance or misfeasance of any such special
department constable nor for any of his unlawful acts performed
under color of office, but such constable and his sureties shall be
answerable therefor on his official bond."
SECTION 96. Section 23-9-10 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 23-9-10. The Office of the State Fire Marshal
shall hereafter must be administered as a division of
the Department of Labor, Licensing & Regulation. A director
of the Department of Labor, Licensing, and Regulation must be
appointed by the governor pursuant to the provisions of Section
40-83-15 40-73-15. The division shall
consist consists of such agents and employees,
pursuant to Section 40-73-15, as the director of the
department may deem necessarily considers proper
for the enforcement of state and local fire safety codes and
standards. The director of the department shall employ a State Fire
Marshal, pursuant to Section 40-73-15, to supervise enforcement of
the laws and personnel necessary to carry out the duties of this
chapter. The State Fire Marshal shall must have a
Master's Degree from an accredited institution of higher learning
and at least four years experience in fire prevention and control or a
Bachelor's Degree and eight years experience in fire prevention and
control."
SECTION 97. Section 23-11-110(C) of the 1976 Code, as last
amended by Act 19 of 1993, is further amended to read:
"(C) After December 31, 1988, every newly-elected
sheriff in his first term is required to complete a training session to
be determined by the South Carolina Criminal Justice
Law Enforcement Training Council, to be conducted by the
South Carolina Criminal Justice Academy or an academy certified
by the South Carolina Law Enforcement Training Council
or as may be selected by the South Carolina Sheriffs' Association.
This training must be completed during the first calendar year of
the first term of the newly-elected sheriff's term of office. A
newly-elected sheriff who is unable to attend this training course
when offered because of emergency or extenuating circumstances,
within one year from the date the disability or cause terminates,
shall complete the standard basic course of instruction required of
newly-elected sheriffs. A newly-elected sheriff who does not fulfill
the obligations of this subsection is subject to suspension by the
Governor until the sheriff completes the course of
instruction."
SECTION 98. Chapter 25 of Title 23, as last amended by Act
181 of 1993, is further amended to read:
"CHAPTER 25
Law Enforcement Officers Hall of Fame
Section 23-25-10. There is hereby established the South
Carolina Law-Enforcement Law Enforcement
Officers Hall of Fame as a memorial to law-enforcement
law enforcement officers killed in the line of duty and in
recognition of the selfless dedication of all law-enforcement
law enforcement officers in the day-to-day performance of
their duties. The Hall of Fame shall be located on the grounds
of the South Carolina Law-Enforcement Academy at Columbia.
Section 23-25-20. (A) The South Carolina Hall of Fame shall
hereafter be administered as a division of the Department of Public
Safety.
(B) To plan, enact, and administer the Hall of Fame, there is
hereby There is created the a Law
Enforcement Officers Hall of Fame Advisory Committee.
The committee shall consist of the following ex officio members:
(1) the Director of the Department of Public Safety, who
shall serve as chairman;
(1)(2) the Chief of the South
Carolina State Law Enforcement Division, who
shall serve as chairman;
(2) the commanding officer of the Highway Patrol and the
commanding officer of the State Police;
(3) the Director of the Department of Corrections;
(4) the Secretary of the South Carolina Sheriffs' Association;
(5) the Executive Director of the South Carolina Law
Enforcement Officers Association;
(6) the President of the South Carolina Police Chiefs'
Association, or his designee; and
(7) a representative of the Natural Resources
Enforcement Division of Natural Resources Police, to
be appointed by the Director of the Department of Natural
Resources; and.
(8) the Director of the Department of Public Safety.
(C) All members Members of the
advisory committee may designate persons to represent
them at meetings they are unable to attend.
Section 23-25-30. It shall be the responsibility of the
advisory Committee committee created
by Section 23-25-20 to plan, erect and maintain to assist the
department in planning, erecting, and maintaining the Hall of
Fame in the manner it shall determine appropriate but generally in
accordance with the following guidelines:
(a) All officers from all agencies in the law-enforcement system
shall be eligible for entry into the Hall of Fame.
(b) The names of all officers killed in the line of duty whose
deaths under those circumstances can be established by creditable
records shall be entered into the Hall.
(c) Any officer who performs an act or series of acts over and
above the regular call of duty may become eligible for the Hall
when so elected by the advisory Committee
committee whether or not such act or acts resulted in death
or injury to the officer concerned.
(d) Any officer whose continued record of excellence over a
period of years is manifestly outstanding may be elected to the Hall
by the advisory Committee committee.
(e) Suitable plaques inscribed with the names of those selected
for the Hall shall be erected. Fame shall include museum-type
displays of objects and equipment of unusual interest used by
law-enforcement officers or otherwise related to law enforcement.
(f) Within the limits of funds provided, the Hall of Fame shall
include museum-type displays of objects and equipment of unusual
interest used by law enforcement officers or otherwise related to
law enforcement.
(g) Provide tours and related safety and educational
programs to the public.
Section 23-25-40. The advisory committee shall
establish procedures and regulations for the nomination of members
of the Hall of Fame. All selections of persons for Hall of Fame
membership shall be made by a majority vote of the total
membership of the advisory committee.
Meetings of the advisory committee shall be held at least
quarterly, and more frequently at the call of the chairman. The
advisory committee shall establish its own rules of
procedure. Members shall not receive compensation for their
services with the advisory committee but shall be allowed
the usual mileage, per diem and subsistence provided by law for
boards, committees and commissions. The committee
department is authorized to employ clerical assistance as
the director deems considers necessary to perform
its functions as prescribed in this chapter from funds made available
as provided in Section 23-23-70 23-6-470."
SECTION 99. Section 24-1-10 of the 1976 Code is amended to
read:
"Section 24-1-10. Wherever in the Code of Laws of South
Carolina, 1976, reference is made to the State Penitentiary or
Penitentiary, it shall mean the Department of Corrections or an
institution of the Department of Corrections; and wherever
reference is made to the Director of the Department of Corrections,
it shall mean Commissioner of the Department of
Corrections."
SECTION 100. Section 24-13-730 of the 1976 Code is amended
to read:
"Section 24-13-730. Any new program established under
Sections 14-1-210, 14-1-220, 14-1-230, 16-1-60, 16-1-70,
16-3-20, 16-3-26, 16-3-28, 16-23-490, 17-25-45, 17-25-70,
17-25-90, 17-25-140, 17-25-145, 17-25-150, 17-25-160,
20-7-1350, 24-3-40, 24-3-1120, 24-3-1130, 24-3-1140,
24-3-1160, 14-3-1170, 24-3-1190, 24-3-2020, 24-3-2030,
24-3-2060, 24-13-640, 24-13-650, 24-13-710, 24-13-910,
24-13-915, 24-13-920, 24-13-930, 24-13-940, 24-13-950, 24-21-13,
24-21-430, 24-21-475, 24-21-480, 24-21-485, 24-21-610,
24-21-640, 24-21-645, 24-21-650, 24-22-30, 24-22-40,
24-22-50, 24-22-70, 24-22-90, 24-22-100, 24-22-110, 24-22-120,
24-22-130, 24-22-140, 24-22-150, 24-22-160, 24-22-170,
24-23-115, and 42-1-505 or any change in any existing program
may only be implemented only to the extent that
appropriations for such the programs have been
authorized by the General Assembly."
SECTION 101. Section 24-21-300 of the 1976 Code is amended
to read:
"Section 24-21-300. At any time during a period of
supervision, a probation and parole agent, instead of issuing a
warrant, may issue a written citation and affidavit setting forth that
the probationer, parolee, or any a person released or
furloughed under the Prison Overcrowding Powers Act or the
Offender Management System Act in the agent's judgment
violates the conditions of his release or suspended sentence. The
citation must be directed to the probationer, parolee, or the person
released or furloughed, must require him to appear at a specified
time, date, and court or other place, and must state the charges.
The citation must set forth the probationer's, parolee's, or released
or furloughed person's rights and contain a statement that a hearing
will be held in his absence if he fails to appear and that he may be
imprisoned as a result of his absence. The citation may be served
by a law enforcement officer upon the request of a probation and
parole agent. The issuance of a citation or warrant during the
period of supervision gives jurisdiction to the court and the
board department at any hearing on the
violation."
SECTION 102. Section 24-22-30 of the 1976 Code, as added
by Act 461 of 1992, is amended to read:
"Section 24-22-30. To be eligible to participate in the
offender management system, an offender shall:
(a) must be classified as a qualified prisoner as defined
herein;
(b) shall maintain a clear disciplinary record during the
offender's incarceration or for at least six months prior to
before consideration for placement in the system;
(c) shall demonstrate during incarceration a general
desire to become a law abiding member of society;
(d) shall satisfy any reasonable requirements imposed
on the offender by the Department of Corrections;
(e) must be willing to participate in the criminal
offender management system and all of its programs and
rehabilitative services and agree to conditions imposed by the
departments;
(f) shall possess an acceptable risk score. The risk
score shall must be affected by, but not be limited
to, the following factors:
(1) nature and seriousness of the current offense;
(2) nature and seriousness of prior offenses;
(3) institutional record;
(4) performance under prior criminal justice supervision; and
(g) shall satisfy any other criteria established by the
South Carolina Department of Corrections and the State
Board Department of Probation, Parole and Pardon
Services."
SECTION 103. Section 24-22-150 of the 1976 Code, as added
by Act 461 of 1992, is amended to read:
"Section 24-22-150. The offender management system
must not be initiated and offenders shall must not
be enrolled in the offender management system unless appropriately
funded out of the general funds of the State.
During periods when the offender management system is in
operation and either the South Carolina Department of Corrections
or the South Carolina Department of Probation, Parole and Pardon
Services determines that its funding for the system has been
exhausted, the commissioner director for the
department having made the determination that funds are exhausted
shall notify the commissioner director of the other
department, the Governor, the Speaker of the House of
Representatives, and the President Pro Tempore of the Senate. The
offender management system shall then shall
terminate until appropriate funding has been provided from the
general funds of the State."
SECTION 104. Section 24-23-30 of the 1976 Code is amended
to read:
"Section 24-23-30. The community corrections plan
shall must include, but is not
be limited to, describing the following
community-based program needs:
(a) an intensive supervision program for probationers and
parolees who require more than average supervision;
(b) a supervised inmate furlough program whereby inmates
under the jurisdiction of the Department of Corrections can be
administratively transferred to the supervision of state probation and
parole agents for the purposes of pre-release preparation, securing
employment and living arrangements, or obtaining rehabilitation
services;
(c) a contract rehabilitation services program whereby private
and public agencies, such as the Department of Vocational
Rehabilitation and Mental Health and the various county
commissions on alcohol and drug abuse, provide diagnostic and
rehabilitative services to offenders who are under the
Board's Department of Probation, Parole and Pardon
Services' jurisdiction;
(d) community-based residential programs whereby public and
private agencies as well as the Board Department of
Probation, Parole and Pardon Services establish and operate
halfway houses for those offenders who cannot perform
satisfactorily on probation or parole;
(e) expanded use of presentence investigations and their role
and potential for increasing the use of community-based programs,
restitution and victim assistance; and
(f) identification of programs for youthful and first
offenders."
SECTION 105. Sections 24-26-10(B)(3) and (4) of the 1976
Code are amended to read:
"(3) the Chairman of the State Board of Corrections, or
his designee who must be a member of that board or who must be
the Commissioner Director of the Department of
Corrections or his designee;
(4) the Chairman of the Board Director of the
Department of Probation, Parole and Pardon Services, or his
designee who must be a member of that board or who must be
the Commissioner or Executive Director of the Department of
Probation, Parole and Pardon Services."
SECTION 106. Section 25-19-20 of the 1976 Code is amended
to read:
"Section 25-19-20. The commission is attached to the
Department Division of Veterans' Affairs in the
Office of the Governor for logistical and staff support only and
may be located in Columbia in space provided by the State Budget
and Control Board."
SECTION 107. Section 31-13-30 of the 1976 Code, as
redesignated by Act 410 of 1992, is amended to read:
"Section 31-13-30. The Governor shall appoint, with the
advice and consent of the Senate, seven persons to be
commissioners of the South Carolina State Housing Finance and
Development Authority. The seven persons so appointed
shall must have experience in the fields of mortgage
finance, banking, real estate, and home building. The Governor
shall appoint a chairman from among the seven commissioners.
The commissioners must be appointed for terms of four years,
except that all vacancies must be filled for the unexpired
term. A commissioner shall hold office until his successor has been
appointed and qualifies qualified. A certificate of
the appointment or reappointment of any commissioner must be
filed in the office of the Secretary of State and in the office of the
authority, and the certificate is conclusive evidence of the due and
proper appointment of the commissioner. The Governor or his
designee and the State Commissioner of the Department of
Health and Environmental Control or his designee from his
administrative staff shall serve ex officio as commissioners of the
authority with the same powers as the other commissioners."
SECTION 108. Section 31-17-330 of the 1976 Code is amended
to read:
"Section 31-17-330. No such license shall
be is required with respect to mobile homes held by
dealers for resale, nor shall does this article be
applicable apply to mobile homes licensed by the South
Carolina Highways and Public Transportation Department
of Revenue. Licenses required by this article shall
be are in lieu of any a building or
construction permit now required by local act or ordinance."
SECTION 109. Section 33-14-210(c) of the 1976 Code is
amended to read:
"(c) If the Secretary of State is notified by the Tax
Commission Department of Revenue that the
corporation has failed to file a required tax return within sixty days
of the notice required by Section 12-7-1675, the Secretary of State
shall dissolve the corporation administratively by signing a
certificate of dissolution that recites the grounds for dissolution and
its effective date. The Secretary of State shall file the original of
the certificate and send a copy to the corporation by registered or
certified mail addressed to its registered agent at its registered office
or to the office of the secretary of the corporation at its principal
office."
SECTION 110. Section 33-39-250(10) of the 1976 Code is
amended to read:
"(10) To cooperate with and avail itself of the facilities of
the Division of State Development of the Department
of Commerce Board and any similar governmental
agencies, and to cooperate with and assist and otherwise encourage
organizations in the various communities of the county in the
promotion, assistance, and development of the business
prosperity and economic welfare of such the
communities or of the county; and"
SECTION 111. Section 38-3-110 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"The director commissioner or his designee
have has the following duties:
(1) supervise and regulate the rates and service of every insurer
in this State and fix just and reasonable standards, classifications,
regulations, practices, and measurements of service to be observed
and followed by every insurer doing business in this State. Nothing
contained in this title authorizes or requires a review by the
department or the director commissioner of any
order of the director's commissioner's designee or
the deputy director commissioner under the
Administrative Procedures Act. This item does not grant any
additional authority to the director commissioner or
his designee with regard to insurance rates other than the
rate-making authority specifically granted to the director
commissioner or his designee, or the Department of
Insurance for certain kinds of insurance in other provisions of this
title;
(2) see that all laws of this State governing insurers or
relating to the business of insurance are faithfully executed and
make regulations to carry out this title and all other insurance laws
of this State, the enforcement or administration of which is not
otherwise specifically provided for. Any reference in this title to
regulations promulgated by the department shall mean regulations
promulgated by the commissioner;
(3) furnish to domestic insurers required by law to report to
the department the necessary blank forms for the reports required,
which forms may be changed as necessary to secure full
information as to the standing, condition, and any other information
desired by the director commissioner or his
designee;
(4) report to the Attorney General or other appropriate law
enforcement officials criminal violations of the laws relative to the
business of insurance or the provisions of this title which he
considers necessary to report;
(5) institute civil actions, either through his office or through
the Attorney General, relative to the business of insurance or the
provisions of this title which he considers necessary to
institute."
SECTION 112. Section 38-27-520(d) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(d) When the director commissioner or
his designee takes action in any or all of the ways set out in
subsection (b), the party aggrieved may appeal from the action to
the Administrative Law Judge Division circuit court
as provided by law."
SECTION 113. Section 38-43-106(C) of the 1976 Code, as
amended by Section 661 of Act 181 of 1993 to take effect on July
1, 1995, and as last amended by Act 374 of 1994, is further
amended to read:
"(C) The director Chief Insurance
Commissioner or his designee shall administer these continuing
education requirements and shall approve courses of instruction
which qualify for these purposes. In administering this program,
the department commissioner, in its
his discretion, may promulgate regulations whereby agents
provide to a continuing education administrator established within
the Department of Insurance proof of compliance with continuing
education requirements as a condition of license renewal or, in the
alternative, contract with an outside service provider to provide
record-keeping services as the continuing education administrator.
The costs of the continuing education administrator must be paid
from the continuing insurance education fees paid by agents in the
manner provided by this section, except that course approval
responsibilities may not be designated to the continuing education
administrator. The continuing education administrator shall compile
and maintain, in conjunction with insurers and agents, records
reflecting the continuing insurance education status of all licensed
or qualified agents subject to the requirements of this section. The
continuing education administrator shall furnish to the insurer,
within ninety days of the agent's renewal date, as specified by
regulation, a report of the continuing insurance education status of
all of its agents. All licensed agents shall provide evidence of their
continuing insurance education status to the continuing education
administrator at least one hundred twenty days before the annual
renewal date. Any continuing insurance education approved courses
taken subsequent to one hundred twenty days before the renewal
date must be applied to the following biennial continuing insurance
education required period. The department
commissioner shall promulgate regulations prescribing the
overall parameters of continuing education requirements, and these
regulations shall expressly authorize the director
commissioner or his designee to recognize product-specific
training offered by insurers, subject to those parameters and
guidelines as are promulgated by the regulations. The director of
the department may commissioner shall appoint an
advisory committee to make recommendations with respect to
courses offered for approval, but the director
commissioner or his designee shall retain authority with
respect to course approvals, subject to those regulations as are
promulgated by the department. When the advisory
committee is approved, it shall meet regularly as needed, but no less
than semiannually, to review new course applications. Also, the
advisory committee shall review modifications of courses previously
approved and review previously promulgated regulations to make
recommendations regarding any need for modifications, deletions,
or new regulations. The advisory committee must be comprised of
two representatives from each of the following associations, groups,
or categories:
(1) the Carolina's Association of Professional Insurance
Agents; (2) the Independent Insurance Agents of South
Carolina;
(3) the South Carolina Association of Automobile Insurance
Agents;
(4) the South Carolina Association of Life Underwriters;
(5) the Association of South Carolina Life Insurance
Companies;
(6) the Direct Writers Insurance Companies;
(7) the Association of South Carolina Property and Casualty
Insurance Companies; and
(8) insurers that are not members of national insurance trade
associations.
The advisory committee must also be comprised of one
representative from the South Carolina Association of Health
Underwriters.
Advisory committee members must be appointed by the
commissioner from recommendations made by the respective
associations, groups, or categories to the commissioner."
SECTION 114. Section 38-73-1380 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 38-73-1380. After June 30, 1989, no member or
subscriber of a rating organization may utilize a rate or premium
charge for any private passenger automobile insurance
coverage unless and until the final rate or premium charge
has been filed with the Division department and
approved by the director commissioner or his
designee. After the effective date of this section, the final rate or
premium charge is the pure loss component filed and approved by a
rating organization on behalf of its members or subscribers added to
the expense component of the rate or premium charge, filed with
the department and approved by the director
commissioner or his designee, by each member or
subscriber of a rating organization independently.
No expense component filed by a member or subscriber of a
rating organization may be approved by the director
commissioner or his designee unless it has been the subject
of a public hearing, if that member's or subscriber's total written
private passenger automobile insurance premium during the
previous calendar year equaled or exceeded one percent of the total
written private passenger automobile insurance premium in this
State during the previous calendar year. For other lines of
insurance the requirements of this section are not activated unless
the members' member's or subscribers'
subscriber's total written premium during the previous
calendar year equaled or exceeded three percent of the total written
insurance premium for that specific line of insurance in this State
during the previous calendar year."
SECTION 115. The last paragraph of Section 38-77-580 of the
1976 Code, as last amended by Act 181 of 1993, is further
amended to read:
"The director commissioner or his
designee, through the department, may propose to the board
any amendment to or modification of the plan that the
director commissioner or his designee considers to
be necessary to render the plan reasonable or consistent with the
purposes of this chapter, specifying in writing the reasons for any
proposed amendment or modification. In the event that
If the board fails to adopt his proposed amendment or
modification, the director commissioner or his
designee may, after notice and public hearing addressed to
the reasons for the proposed amendment or modification,
may promulgate the amendment or modification considered
necessary to render the plan reasonable or consistent with the
purposes of this chapter."
SECTION 116. Section 38-79-270 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 38-79-270. Any applicant for insurance through
the association, person insured pursuant to this article or his
representative, or any insurer adversely affected or claiming to be
adversely affected by any ruling, action, or decision by or on
behalf of the association may appeal to the department
commissioner within thirty days after notice of the ruling,
action, or decision."
SECTION 117. Section 38-81-270 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 38-81-270. The director
commissioner or his designee shall obtain complete
statistical data in respect to legal professional liability losses and
reparation costs as well as all other costs or expenses which
underlie or are related to legal professional liability insurance. The
department commissioner shall promulgate any
statistical plan he considers necessary for the purpose of gathering
data referable to loss and loss adjustment expense experience and
other expense experience. When the statistical plan is
promulgated, all members of the association shall adopt
and use it. The director commissioner or his
designee also shall obtain statistical data in respect to the costs of
compensating victims of legal professional liability. The
director commissioner or his designee may require
from any a person obtaining insurance through the
association loss, claim, or expense data. This information or data is
confidential, and the attorney-client privilege must be
preserved."
SECTION 118. Chapter 23, Title 39 of the 1976 Code is
amended to read:
"CHAPTER 23
Adulterated, Misbranded, or New Drugs and
Devices
Section 39-23-10. This chapter may be cited as the South
Carolina Drug Act.
Section 39-23-20. For the purposes of this chapter:
(a)(1) The `Commissioner of the
Department of Health and Environmental Control' means the
Commissioner of the Department of Health and
Environmental Control or his designated agent.
(b)(1)(2)(a) The term `Drug'
means:
(A) (i) articles recognized in the official
United States Pharmacopoeia, official Homeopathic Pharmacopoeia
of the United States, or official National Formulary, or any
a supplement to any of them; and
(B) (ii) articles intended for use in the
diagnosis, cure, mitigation, treatment, or prevention of disease in
man or other animals; and
(C) (iii) articles, (other
than food), intended to affect the structure or
any function of the body of man or other animals; and
(D) (iv) articles intended for use as a
component of any articles an article specified in
clause (A) subsubitem (i), (B) ii, or
(C); but (iii).
(b) `Drug' does not include devices or their
components, parts, or accessories.
(2)(c) The term `Counterfeit drug' means
a drug which, or the container or labeling of which, without
authorization, bears the trademark, trade name, or other
identifying mark, imprint, or device, or any likeness
thereof of it, of a drug manufacturer, processor,
packer, or distributor other than the person or persons who in fact
manufactured, processed, packed, or distributed such
the drug and which thereby falsely purports or is
represented to be the product of, or to have been packed or
distributed by, such the other drug manufacturer,
processor, packer, or distributor.
(c)(3) The term `Device' means
instruments, apparatus, and contrivances, including their
components, parts, and accessories, intended:
(1)(a) for use in the diagnosis, cure,
mitigation, treatment, or prevention of disease in man or other
animals; or
(2)(b) to affect the structure or any
function of the body of man or other animals.
(d)(4) The term `Official compendium'
means the official United States Pharmacopoeia, Official
Homeopathic Pharmacopoeia of the United States, Official National
Formulary, or any a supplement to any of
them.
(e)(5) The term `Label' means a display
of written, printed, or graphic matter upon the immediate container
of any an article; and. A
requirement made by or under authority of this chapter that
any a word, a statement, or other
information appear on the label shall is not be
considered to be complied with unless such the
word, statement, or other information also appears on the outside
container or wrapper, if any there be one, of the
retail package of such the article, or is easily
legible through the outside container or wrapper.
(f)(6) The term `Labeling' means all
labels and other written, printed, or graphic matter (1) upon
any an article or any of its containers or
wrappers, or (2) accompanying such
the article. If an article is alleged to be misbranded
because the labeling is misleading, or if an advertisement is
alleged to be false because it is misleading, then in
determining whether the labeling or advertisement is misleading,
there shall must be taken into account,
(among other things), not only
representations made or suggested by statement, word, design,
device, sound, or in any a combination
thereof of them, but also the extent to which the
labeling or advertisement fails to reveal facts material in the light of
such these representations or material with respect
to consequences which may result from the use of the article to
which the labeling or advertisement relates under the conditions of
use prescribed in the labeling or advertisement thereof of
them or under such customary or usual
conditions of use as are customary or usual.
(g)(7) The term `New drug' means:
(1)(a) Any a drug,
(except a new animal drug or an animal feed bearing or
containing a new animal drug), the composition of
which is such that such the drug is not
generally recognized, among experts qualified by
scientific training and experience to evaluate the safety and
effectiveness of drugs, as safe and effective for use under the
conditions prescribed, recommended, or suggested in the labeling
thereof, except that such of the drug. However, a
drug not so recognized shall is not be deemed to
be a `new drug' if at any time prior to before
July 17, 1972, it was subject to the Federal Food and Drug
Act of June 30, 1906, as amended, and if at such
the time its labeling contained the same representations
concerning the conditions of its use; or
(2)(b) Any a drug,
except a new animal drug or an animal feed bearing or containing a
new animal drug, the composition of which is such that such
the drug, as a result of investigations to determine its safety
and effectiveness for use under such the conditions,
has become so recognized, but which has not, otherwise
than in such these investigations, been used to a
material extent or for a material time under such the
conditions.
(h)(8) The term `Color' includes black,
white, and intermediate grays.
Section 39-23-30. A drug or device shall be is
deemed to be adulterated if it:
(a)(1)(a) If it consists in whole or in part
of any filthy, putrid, or decomposed substance; or
(2)(A)(b)(i) if it has been prepared,
packed, or held under insanitary conditions whereby
where it may have been contaminated with filth, or
whereby where it may have been rendered injurious
to health; or
(B)(ii) if it is a drug and the
methods used in, or the facilities or controls used for, its
manufacture, processing, packing, or holding do not conform to or
are not operated or administered in conformity with current good
manufacturing practice to assure that such the drug
meets the requirements of the Federal Food, Drug, and Cosmetic
Act, as amended, as to safety and has the identity and
strength, and meets the quality and purity
characteristics, which it purports or is represented to possess;
or
(3)(c) if it is a drug and its container is
composed, in whole or in part, of any a poisonous
or deleterious substance which may render the contents injurious to
health; or
(4) if
(A)(d)(i) it is a drug which bears
or contains, for purposes of coloring only, a color additive which is
unsafe within the meaning of Section 706(a) of the Federal Food,
Drug, and Cosmetic Act, as amended,;
(B) (ii) it is a color additive the
intended use of which in or on drugs is for purposes of coloring
only and is unsafe within the meaning of Section 706(a) of the
Federal Food, Drug, and Cosmetic Act, as amended; or
(5)(e) if it is a new animal drug which
is unsafe within the meaning of Section 512 of the Federal Food,
Drug, and Cosmetic Act, as amended; or
(6)(f) if it is an animal feed bearing or
containing a new animal drug, and such the animal
feed is unsafe within the meaning of Section 512 of the Federal
Food, Drug, and Cosmetic Act, as amended.
(b)(2) If it purports or is represented as
a drug the name of which is recognized in an official
compendium, and its strength differs from or its quality or
purity falls below the standard set forth in such the
compendium. Such The determination as to
strength, quality, or purity shall must be made in
accordance with the tests or methods of assay set forth in
such the compendium, except that
whenever. However, when tests or methods of
assay have not been prescribed in such the
compendium, or those prescribed under authority of the federal
act, or such the tests or methods of assay as
are prescribed are, in the judgment of the Commissioner of the
Department of Health and Environmental Control, insufficient
for the making of such the determination, the
Commissioner commissioner shall bring
such that fact to the attention of the appropriate
body charged with the revision of such the
compendium, and. If such the body
fails within a reasonable time to prescribe tests or methods of
assay, which, in the judgment of the Commissioner
commissioner, are sufficient for purposes of this paragraph,
then the Commissioner Department of Health and
Environmental Control shall promulgate regulations prescribing
appropriate tests or methods of assay in accordance with which
such the determination as to strength, quality, or
purity shall must be made. No drug defined in an
official compendium shall may be deemed to be
adulterated under this paragraph because it differs from the standard
of strength, quality, or purity therefor set forth in
such the compendium, if its difference in strength,
quality, or purity from such the standards is
plainly stated plainly on its label. Whenever a drug
is recognized in both the United States Pharmacopoeia and the
Homeopathic Pharmacopoeia of the United States, it
shall be is subject to the requirements of the United
States Pharmacopoeia unless it is labeled and offered for sale as a
homeopathic drug in which case. If it is labeled
and offered for sale as a homeopathic drug, it shall be
is subject to the provisions of the Homeopathic
Pharmacopoeia of the United States and not to those of the United
States Pharmacopoeia.
(c)(3) If it is not subject to the
provisions of paragraph (b) of this section, item (2) and
its strength differs from, or its purity or quality falls below
that which it purports or is represented to possess.;
(d)(4) If it is a drug and any
a substance has been (1) mixed or packed
therewith with the drug so as to reduce its quality
of strength or (2) substituted wholly or in part
therefor.
Section 39-23-40. A drug or device shall be is
deemed to be misbranded:
(a)(1) if its label is false or misleading in any
particular.;
(b)(2) if in a package form unless it bears a
label containing (1) the name and place of business of the
manufacturer, packer, or distributor; and (2) an
accurate statement of the quantity of the contents in terms of
weight, measure, or numerical count; provided.
However, that reasonable variations shall be
are permitted under regulations issued
promulgated by the Commissioner
Department of Health and Environmental Control or issued
under the federal act. Provided, further, that in the case of
any For a drug subject to Section 39-23-50(B)(1), the
label shall must contain the name and place of
business of the manufacturer of the finished dosage form and, if
different, the name and place of business of the packer or
distributor. For the purpose of this paragraph item,
the finished dosage form of a drug is that form of the drug which
is, or is intended to be, dispensed or administered to the ultimate
user upon prescription or as otherwise dispensed by the
pharmacist.;
(c)(3) if any a word, a
statement, or other information required by or under the authority
of this chapter or the Federal Food, Drug, and Cosmetic Act to
appear on the label or labeling is not prominently placed
thereon prominently on the label or labeling with
such conspicuousness, as compared with other words,
statements, designs, or devices, in the labeling, and in
such terms as to render it likely to be read and understood
by the ordinary individual under customary conditions of purchase
and use.;
(d)(4) if it is for use by man and contains
any a quantity of the narcotic or hypnotic substance
alpha-eucaine, barbituric acid, beta-eucaine, bromal, cannabis,
carbromal, chloral, coca, cocaine, codeine, heroin, marihuana,
morphine, opium, paraldehyde, peyote, or sulphonmethane,
or any a chemical derivative of such
the substance, which derivative, after investigation, has
been found to be, and designated as, habit forming, by regulations
issued promulgated by the Commissioner
Department of Health and Environmental Control under
this chapter, or by regulations issued pursuant to Section
502(d) of the federal act, unless its label bears the name and
quantity or proportion of such the substance or
derivative and in juxtaposition therewith the statement
`Warning--May be habit forming.';
(e)(1)(5)(a) if it is a drug, unless:
(A) (i) its label bears, to the exclusion of
any other another nonproprietary name,
(except the applicable systematic chemical name or the
chemical formula), (i)(A) the established
name, (as defined in subparagraph (2))
subitem (b), of the drug, if such there be
is, and, (ii) in case (B) if it is
fabricated from two or more ingredients, the established name and
quantity of each active ingredient, including the quantity, kind, and
proportion of any alcohol, and also including
whether active or not, the established name and quantity or
proportion of any bromides, ether, chloroform, acetanilide,
acetophenetidin, amidopyrine, antipyrine, atropine, hyoscine,
hyoscyamine, arsenic, digitalis, digitalis glucosides, mercury,
ouabain, strophanthin, strychnine, thyroid, or any a
derivative or preparation of any such these
substances, contained therein; provided, that in
them. However, the requirement for stating the
quantity of the active ingredients, other than the quantity of those
specifically named in this paragraph sub-subitem,
shall apply applies only to prescription drugs;
and
(B) (ii) for any a
prescription drug, the established name of such
the drug or ingredient, as the case may be, on
such the label, (and on any
the labeling on which a name for such the
drug or ingredient is used), is printed prominently
and in type at least half as large as that used thereon on
the label or labeling for any a proprietary name
or designation for such the drug or ingredient;
and provided, that. However, to the extent that
compliance with the requirements of clause (A)(ii)
sub-subitem (i)(B) or clause (B) of this
subparagraph sub-subitem is impracticable,
exemptions shall must be established by regulations
promulgated by the Commissioner Department of
Health and Environmental Control or under the federal act.
(2)(b) As used in this paragraph (e)
item, the term `established name', with respect to a
drug or ingredient thereof of the drug,
means:
(A) (i) the applicable official name
designated pursuant to Section 508 of the Federal Food, Drug, and
Cosmetic Act as amended, or;
(B) (ii) if there is no such
official name and such the drug, or
such the ingredient, is an article recognized
in an official compendium, then the official title
thereof in such the
compendium,; or
(C) (iii) if neither clause (A)
sub-subitem (i) nor clause (B) of this subparagraph
sub-subitem (ii) applies, then the common or usual
name, if any, of such the drug or of such
the ingredient; provided, further, that.
Where clause (B) of this paragraph sub-subitem (ii)
applies to an article recognized in the United States Pharmacopoeia
and in the Homeopathic Pharmacopoeia under different official
titles, the official title used in the United States Pharmacopoeia
shall apply applies unless it is labeled and offered
for sale as a homeopathic drug, in which case.
If it is labeled and offered for sale as a homeopathic drug,
the official title used in the Homeopathic Pharmacopoeia shall
apply. applies;
(f)(6)(a) unless its labeling bears
adequate:
(1) (i) adequate directions for use;
and
(2) (ii) such adequate warnings
against use in those pathological conditions or by children where its
use may be dangerous to health, or against unsafe dosage or
methods or duration of administration or application, in such
a manner and form, as are necessary for the
protection of users;
(b) provided, that where any
a requirement of clause (1) of this paragraph
sub-subitem (i), as applied to any a drug or
device, is not necessary for the protection of the public health, the
Commissioner Department of Health and
Environmental Control shall promulgate regulations exempting
such the drug or device from such
the requirement; provided, further, that.
Articles exempted under regulations issued under Section 502(f) of
the federal act shall also be are
exempt.;
(g)(7) if it purports to be a drug the name of
which is recognized in an official compendium, unless it is
packaged and labeled as prescribed therein; provided,
that. However, the method of packing may be
modified with the consent of the Commissioner of the
Department of Health and Environmental Control or if consent
is obtained under the federal act. Whenever a drug is recognized in
both the United States Pharmacopoeia and the Homeopathic
Pharmacopoeia of the United States, it shall be is
subject to the requirements of the United States Pharmacopoeia with
respect to packaging, and labeling unless it is labeled and
offered for sale as a homeopathic drug, in which
case. If it is labeled and offered for sale as a
homeopathic drug, it shall be is subject to the
provisions of the Homeopathic Pharmacopoeia of the United
States, and not to those of the United States
Pharmacopoeia; provided, further, that, in the event
of. If there is inconsistency between the
requirements of this paragraph item and those of
paragraph (e) item (5) as to the name by which the
drug or its ingredients shall be are designated, the
requirements of paragraph (e) shall item (5)
prevail.;
(h)(8) if it has been found by the
Commissioner of the Department of Health and
Environmental Control or under the federal act to be a drug liable
to deterioration, unless it is packaged in such a
form and manner, and its label bears a statement of such
the precautions, as the Commissioner
Department of Health and Environmental Control or under
the federal act shall by regulations require
requires as necessary for the protection of the public health.
No such regulation shall may be established
for any a drug recognized in an official
compendium until the Commissioner of the Department of
Health and Environmental Control shall have informed
informs the appropriate body charged with the revision of
such the compendium of the need for such
the packaging or labeling requirements and such
the body shall have failed fails within a
reasonable time to prescribe such the
requirements.;
(i)(1)(9)(a) if it is a drug and its container is
so made, formed, or filled as to be misleading; or
(2)(b) if it is an imitation of another drug; or
(3)(c) if it is offered for sale under the name
of another drug.;
(j)(10) if it is dangerous to health when used in
the dosage, or with the frequency or duration prescribed,
recommended, or suggested in the labeling thereof.;
(k)(11) In the case of any for a
prescription drug distributed or offered for sale in any state, unless
the manufacturer, packer, or distributor thereof includes in
all advertisements and other descriptive printed matter issued or
caused to be issued by the manufacturer, packer, or distributor with
respect to that drug a true statement of:
(1)(a) the established name as defined in
Section 39-23-40(e) item (5), printed prominently
and in type at least half as large as that used for any
a trade or brand name thereof,;
(2)(b) the formula showing quantitatively
each ingredient of such the drug to the extent
required for labels under Section 39-23-40(e), and (3) such
item (e);
(c) other information in brief summary relating to
side effects, contraindications, and effectiveness as shall be
required in regulations which shall be issued under the
federal act.
Section 39-23-50. (a)(A) The
Commissioner Department of Health and
Environmental Control is hereby directed to shall
promulgate regulations exempting from any a
labeling or packaging requirement of this chapter drugs and devices
which are, in accordance with the practice of the trade,
are to be processed, labeled, or repacked in substantial
quantities at establishments other than those where originally
processed or packed, on condition that such the
drugs and devices are not adulterated or misbranded, under the
provisions of this chapter upon removal from such
the processing, labeling, or repacking establishment.
(b)(B)(1) A drug intended for use by man which
(A) is a habit-forming drug to which Section
39-23-40(d)(4) applies; or (B) because of its
toxicity or other potentiality for harmful effect, or the
method of its use, or the collateral measures necessary to its use, is
not safe for use except under the supervision of a practitioner
licensed by law to administer such the drug; or
(C) is limited by an effective application under Section
39-23-70 to use under the professional supervision of a practitioner
licensed by law to administer such the drug,
shall may be dispensed only:
(i)(a) upon a written prescription of a
practitioner licensed by law to administer such the
drug,; or
(ii)(b) upon an oral prescription of such
the practitioner which is reduced promptly to writing and
filed by the pharmacist,; or
(iii)(c) by refilling any such
a written or oral prescription if such the
refilling is authorized by the prescriber either in the original
prescription or by oral order which is reduced promptly to writing
and filed by the pharmacist.
(2) The act of dispensing a drug contrary to the
provisions of this paragraph shall be item (1) is deemed
to be an act which results in the drug being misbranded while held
for sale.
(2)(3) Any A drug dispensed by
filling or refilling a written or oral prescription of a practitioner
licensed by law to administer such the drug shall
be is exempt from the requirements of Section
39-23-40, except paragraphs (a) items (1),
(i)(2) (9)(b) and (3)(c),
(k)(11), and the packaging requirements of
paragraphs (g) (7) and (h) (8), if the
drug bears a label containing the name and address of the dispenser,
the serial number and date of the prescription or of its filling, the
name of the prescriber, and if stated in the prescription the name of
the patient, and the directions for use and cautionary statements, if
any, contained in such the prescription. This
exemption shall does not apply to any
a drug dispensed in the course of the conduct of a business
of dispensing drugs pursuant to diagnosis by mail, or to a
drug dispensed in violation of paragraph (1) of this
subsection item (1).
(3)(4) The Commissioner
Department of Health and Environmental Control
may by regulation may remove drugs subject to
Section 39-23-40(d)(4) and Section 39-23-70 from
the requirements of paragraph item (1) of this
subsection when such the requirements are not
necessary for the protection of the public health. Drugs removed
from the prescription requirements of the federal act by regulations
issued thereunder may under it also by regulations
issued promulgated by the Commissioner
Department of Health and Environmental Control,
may be removed from the requirements of
paragraph item (1) of this subsection.
(4)(5) A drug which is subject to
paragraph item (1) of this subsection shall
be is misbranded if at any time prior to
before dispensing its label fails to bear the statement
`Caution: Federal law prohibits dispensing without prescription.' A
drug to which paragraph item (1) of this
subsection does not apply shall be is deemed to
be misbranded if at any time prior to before
dispensing its label bears the caution statement quoted in the
preceding sentence.
(5)(6) Nothing in this subsection shall be
construed to relieve any relieves a person from
any a requirement prescribed by or under authority
of law with respect to drugs now included or which may
hereafter be included within the classifications stated in
Sections 44-49-10, 44-49-40, 44-49-50, and 44-53-110 to
44-53-580.
Section 39-23-55. (A) For purposes of this section, `sample'
means a unit of a drug which is not intended by the manufacturer to
be sold and which is intended to promote the sale of the drug.
(B) The department may not require the labeling of a
prescription or nonprescription drug sample for which a physician
does not require a federal or state controlled substance license to
dispense, when the physician dispenses it to a patient for no charge.
If the sample is not in the manufacturer's original package, the
physician shall label it meeting all requirements of nonsample
prescription medication. If adequate directions for usage are not
provided on the manufacturer's package, the physician shall give
adequate written directions.
(C) The labeling exemption established in this section does not
apply when more than one hundred twenty dosage units or a
thirty-day supply of a drug in solid form or eight ounces of a drug
in liquid form is dispensed.
Section 39-23-60. In accordance with federal standards, the
Commissioner Department of Health and
Environmental Control shall promulgate regulations providing for
the listing of coal-tar colors which are harmless and suitable for use
in drugs for purposes of coloring only and for the certification of
batches of such the colors, with or without harmless
diluents.
Section 39-23-70. (A) No person shall may
introduce or deliver for introduction into intrastate commerce
any a new drug unless an application filed pursuant
to subsection (B) is effective with respect to such
the drug, or an application with respect
thereto to the drug has been approved and
such the approval has not been withdrawn under
Section 505 of the federal act.
(B) Any A person may file with the
Commissioner of the Department of Health and
Environmental Control an application with respect to any
a drug subject to the provisions of subsection (A).
Such The persons shall submit to the Commissioner
of the Department of Health and Environmental Control as
a part of the application:
(1) full reports of investigations which have been made to
show whether or not such the drug is safe for use;
(2) a full list of the articles used as components of
such the drug;
(3) a full statement of the composition of such
the drug;
(4) a full description of the methods used in, and the facilities
and controls used for, the manufacture, processing, and packing of
such the drug;
(5) such samples of such the drug and
of the articles used as components thereof of the
drug as the Commissioner of the Department of Health
and Environmental Control may require; and
(6) specimens of the labeling proposed to be used for
such the drug.
(C) An application provided for in subsection (B) shall
become is effective on the one hundred eightieth day
after the its filing thereof, except that
if. However, the Commissioner of the
Department of Health and Environmental Control, before
the effective date of the application, shall issue an order refusing to
permit the application to become effective if he finds, after due
notice to the applicant and giving him an opportunity for a
hearing,:
(1), that the drug is not safe or not effective for use
under the conditions prescribed, recommended, or
suggested in the its proposed labeling
thereof; or
(2) the methods used in, and the facilities and controls used
for, the manufacture, processing, and packing of such
the drugs are inadequate to preserve its identity, strength,
quality, and purity; or
(3) based on a fair evaluation of all material facts,
such the labeling is false or misleading in any
particular; he shall, prior to the effective date of the application,
issue an order refusing to permit the application to become
effective.
(D) If The Commissioner of the Department of
Health and Environmental Control, before the effective date of
the application, shall issue an order refusing to permit the
application to become effective if he finds, after due notice to
the applicant and giving him an opportunity for a hearing,
that:
(1) the investigations, reports of which are required to be
submitted to the Commissioner commissioner
pursuant to subsection (B), do not include adequate tests by all
methods reasonably applicable to show whether or not such
the drug is safe for use under the conditions prescribed,
recommended, or suggested in the its proposed
labeling thereof;
(2) the results of such the tests show that
such the drug is unsafe for use under such
the conditions or do not show that such the
drug is safe for use under such the conditions;
(3) the methods used in, and the facilities and controls used
for, the manufacture, processing, and packing of such
the drug are inadequate to preserve its identity, strength,
quality, and purity; or
(4) upon the basis of the information submitted to him as part
of the application or upon the basis of any other information
before him with respect to such the drug, he has
insufficient information to determine whether such
the drug is safe for use under such the
conditions, he shall, prior to the effective date of the application,
issue an order refusing to permit the application to become
effective.
(E) The effectiveness of an application with respect to
any a drug shall, after due notice and
opportunity for hearing to the applicant, by order of the
Commissioner of the Department of Health and
Environmental Control stating the findings upon which it is
based, must be suspended if the Commissioner
commissioner finds that:
(1) that clinical experience, tests by new methods, or
tests by methods not deemed reasonably applicable when
such the application became effective show that
such the drug is unsafe for use under conditions of
use upon the basis of which the application became
effective,; or
(2) that the application contains any
an untrue statement of a material fact. The order shall
state the findings upon which it is based.
(F) An order refusing to permit an application with respect to
any a drug to become effective shall
must be revoked whenever the Commissioner of the
Department of Health and Environmental Control finds that the
facts so require.
(G) Orders of the Commissioner of the Department of
Health and Environmental Control issued under this section
shall must be served:
(1) in person by an officer or employee of the Department of
Health and Environmental Control designated by the
Commissioner commissioner; or
(2) by mailing the order by registered mail addressed to the
applicant or respondent at his last known address in the records of
the Commissioner commissioner.
(H) An appeal may be taken by the applicant from an order of
the Commissioner of the Department of Health and
Environmental Control refusing to permit the application to become
effective, or suspending the effectiveness of the application.
Such The appeal shall must be
taken by filing in the circuit court within any a
circuit wherein such in which the applicant resides
or has his principal place of business, within sixty days after the
entry of such the order, a written petition praying
that the order of the Commissioner commissioner
be set aside. A copy of such the petition
shall must be forthwith served
immediately upon the Commissioner
commissioner or upon any an officer
designated by him for that purpose, and thereupon the
Commissioner commissioner shall certify and file in
the court a transcript of the record upon which the order
complained of was entered. Upon the filing of such
the transcript such the court shall
have has exclusive jurisdiction to affirm or set aside
such the order. No objection to the order of the
Commissioner commissioner shall
may be considered by the court unless such
the objection shall have has been argued
before the Commissioner commissioner or unless
there were reasonable grounds for failure so to do. The findings of
the Commissioner commissioner as to the facts, if
supported by substantial evidence, shall be are
conclusive. If any a person shall apply
applies to the court for leave to adduce additional
evidence, and shall show shows to the
satisfaction of the court that such the additional
evidence is material and that there were reasonable grounds for
failure to adduce such the evidence in the
proceeding before the Commissioner commissioner,
the court may order such the additional evidence to
be taken before the Commissioner commissioner
and to be adduced upon the hearing in such a
manner and upon such terms and conditions as the
court may deem proper. The Commissioner
commissioner may modify his findings as to the facts by
reason of the additional evidence so taken, and he shall file with the
court such the modified findings which, if
supported by substantial evidence, shall be are
conclusive, and his recommendation, if any, for the setting aside of
the original order. The judgment and decree of the court affirming
or setting aside any such an order of the
Commissioner commissioner shall be
is final, subject to review as provided by statute. The
commencement of proceedings under this subsection shall
not, unless specifically ordered by the court to the contrary,
does not operate as a stay of the Commissioner's
commissioner's orders.
(I) The Commissioner Department of Health
and Environmental Control shall promulgate regulations for
exempting from the operation of this section drugs intended solely
for investigational use by experts qualified by scientific training and
experience to investigate the safety of drugs.
Section 39-23-80. (A) It is unlawful to do or cause the
following acts:
(1) introduction or delivery for introduction into commerce
within the State of a drug or device that is adulterated or
misbranded;
(2) adulteration or misbranding of a drug or device in
intrastate commerce;
(3) receipt in intrastate commerce of a drug or device that is
adulterated or misbranded, and the delivery or proffered
delivery of a drug or device for pay or otherwise;
(4) manufacture of a drug or device within the State which is
adulterated or misbranded;
(5) forging, counterfeiting, simulating, or falsely representing,
or without proper authority using any a mark,
stamp, tag, or label, or other identification device
authorized or required by regulations promulgated under the
provisions of this chapter or the federal act;
(6) alteration, mutilation, destruction, obliteration, or removal
of the whole or any a part of the labeling of, or the
doing of any other another act with respect to, a
drug or device, if the act is done while the article is held for
sale, (whether or not the first sale),
after shipment in intrastate commerce and results in the article being
adulterated or misbranded;
(7) using, on the label of a drug or in an advertisement
relating to the drug, any a representation or
suggestion that an application with respect to the drug is effective
under Section 39-23-70, or that the drug complies with the
provisions of that section.
(B)(1) A person who violates a provision of this section is guilty
of a misdemeanor and, upon conviction, must be imprisoned not
more than two years, or fined not more than five thousand
dollars, or both for a first offense.
(2) A person convicted under this section for a second
offense is guilty of a felony and, upon conviction, must be
imprisoned not more than five years or fined not more than ten
thousand dollars, or both.
(3) A violation with intent to defraud or mislead is a felony
and, upon conviction, the person must be imprisoned not more than
five years or fined not more than ten thousand dollars, or both.
Section 39-23-100. (A) Any A drug or device
that is adulterated or misbranded when introduced into or while in
intrastate commerce or while held for sale, (whether
or not the first sale), after shipment in intrastate
commerce, or which may not, under the provisions
of Section 39-23-50, may not be introduced into
intrastate commerce, shall be is liable to be
proceeded against while in intrastate commerce or at any
after that time thereafter, on libel of information
and condemned in any a circuit court of the State
within the jurisdiction of which the article is found;
provided,. However, that no libel for
condemnation shall may be instituted under this
chapter, for any alleged misbranding if there is
pending in any a court a libel for condemnation
proceeding under this chapter based upon the same alleged
misbranding, and. Not more than one such
libel for condemnation proceeding shall
may be instituted if no such proceeding is so
pending, except that such the limitations
shall do not apply (1) when such
misbranding has been the basis of a prior judgment in favor of the
State, in a criminal injunction, or libel for
condemnation proceeding under this chapter, or (2)
when the Commissioner of the Department of Health and
Environmental Control has probable cause to believe from facts
found, without hearings, by him or any an officer
or employee of the Department of Health and Environmental
Control that the misbranding is dangerous to health, or that
the labeling of the misbranded article is fraudulent, or would
be in a material respect misleading to injury or damage of the
purchaser or consumer. In any case Where the number of
libel for condemnation proceedings is limited as above
provided in this subsection, the proceeding pending or
instituted shall, on application of the claimant, reasonably
made, must be removed for trial to any a
circuit agreed upon by stipulation between the parties, or, in
case of for failure to so stipulate within a reasonable
time, the claimant may apply to the court of the circuit in which the
seizure has been made, and such the court,
(after giving the Attorney General or other attorney for the
Department of Health and Environmental Control reasonable notice
and opportunity to be heard), shall by order, unless
good cause to the contrary is shown, by order shall specify
a circuit of reasonable proximity to the claimant's principal place of
business to which the case shall must be removed
for trial.
(B) The article shall be is liable to seizure by
process pursuant to the libel, and the procedure in cases under this
section shall conform, as nearly as may be, to the procedure in
admiralty; except that. However, on
demand of either party, any an issue of fact
joined in any such a case shall must
be tried by jury. When libel for condemnation proceedings under
this section, involving the same claimant and the same issues of
adulteration or misbranding, are pending in two or more
jurisdictions, such the pending proceedings, upon
application of the claimant reasonably made to the court of one
such jurisdiction of the jurisdictions, shall
must be consolidated for trial by order of such
that court, and tried in (1) any a
circuit selected by the claimant where one of such
the proceedings is pending; or (2) a circuit
agreed upon by stipulation between the parties. If no order for
consolidation is so made within a reasonable time, the claimant may
apply to the court of one such jurisdiction of the
jurisdictions, and such that court,
(after giving the Attorney General or other attorney for the
Department of Health and Environmental Control reasonable notice
and opportunity to be heard) shall by order, unless
good cause to the contrary is shown, by order shall specify
a circuit of reasonable proximity to the claimant's principal place of
business, in which all pending proceedings shall
must be consolidated for trial and tried. Such
The order of consolidation shall may not
apply so as to require the removal of any a case the
date for trial of which has been fixed. The court granting
such the order shall give prompt notification
thereof of the order to the other courts having
jurisdiction of the cases covered thereby by the
order.
(C) The court at any time after seizure up to a reasonable time
before trial shall by order shall allow any
a party to a condemnation proceeding, his attorney or
agent, to obtain a representative sample of the article seized.
(D) Any A drug or device condemned under this
section shall, after entry of the decree, must be
disposed of by destruction or sale as the court may, in
accordance with the provisions of this section, may
direct and the proceeds thereof, if sold, less the legal costs
and charges, shall must be paid into
to the Treasury of the State of South Carolina;
but such Treasurer. However, the article shall
must not be sold under such the decree
contrary to the provisions of this chapter or the laws of the
jurisdiction in which sold; provided, that. After
entry of the decree and upon the payment of the costs of
such proceedings and the execution of a good and sufficient
bond conditioned that such the article shall
must not be sold or disposed of contrary to the provisions
of this chapter or the laws of any a state or territory
in which sold, the court may by order may direct
that such the article be delivered to the
its owner thereof to be destroyed or brought into
compliance with the provisions of this chapter under the supervision
of an officer or employee duly designated by the Commissioner
of the Department of Health and Environmental
Control, and. The expenses of such
the supervision shall must be paid by the
person obtaining release of the article under bond. Any
An article condemned by reason of its being an article
which may not, under Section 39-23-70, may not be
introduced into intrastate commerce, shall must be
disposed of by destruction.
(E) When a decree of condemnation is entered against the
article, court costs of fees, and storage and other proper
expenses, shall must be awarded against the person,
if any, intervening as claimant of the article.
(F) In the case of For removal for trial of
any a case as provided by subsection (A) or (B):
(1) The clerk of the court from which removal is made
shall promptly shall transmit to the court in which
the case is to be tried all records in the case necessary in order
that such so the court may exercise jurisdiction.
(2) The court to which such the case was
removed shall have has the powers and be
is subject to the duties, for purposes of such
the case, which the court from which removal was made
would have had, or to which such the court would
have been subject, if such the case had not been
removed.
Section 39-23-110. Before any a violation of this
chapter is reported by the Commissioner of the Department
of Health and Environmental Control to the Attorney General for
institution of a criminal proceeding, the person against whom
such the proceeding is contemplated shall
must be given appropriate notice and an opportunity to
present his views, either orally or in writing, with regard to
such the contemplated proceeding.
Section 39-23-120. Nothing in this chapter shall
may be construed as requiring the Commissioner of the
Department of Health and Environmental Control to report for
prosecution, or for the institution of libel or injunction proceedings,
minor violations of this chapter whenever he believes that
the public interest will be adequately served
adequately by a suitable written notice or warning.
Section 39-23-130. The Commissioner of the
Department of Health and Environmental Control may,
upon service of written notice, may embargo any
a drug, or device, or other
substance for a period not to exceed more
than fifteen days if such the drug, device, or
substance is suspected of being adulterated or
misbranded,. The purpose of such
the embargo being is to prevent the
removal of such the drug, device, or substance from
the jurisdiction of the Commissioner of the Department of
Health and Environmental Control until an investigation of
such the suspected adulteration or misbranding may
be conducted."
SECTION 119. Section 40-6-180 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 40-6-180. No license may be denied,
suspended, or revoked, and no other disciplinary action against a
licensee may be taken, until after fifteen days' notice has been
given in writing to the licensee or applicant stating the ground of
the proposed action and until a public hearing has been held at
which he shall have opportunity to be heard, present testimony in
his behalf, and be confronted by witnesses against him, if he
requests the hearing. The commission, in its discretion, may grant
the accused a temporary permit to auction pending the hearing and
determination. Determinations must be made and the licensee or
applicant notified of them within five days after the hearing. Any
auctioneer notified of a suspension may request a rehearing within
twenty days from the date of notification of determination. Upon a
rehearing and continued denial, suspension, or revocation of license,
or other disciplinary action, or upon a refusal for rehearing, the
party is entitled to appeal his case to an administrative law judge as
provided under Article 5 of Chapter 23 of Title 1 (the
Administrative Procedures Act). The commission or its authorized
representatives may subpoena witnesses and documents for any
hearing and may administer oaths to the witnesses. (A) Before denying, suspending, or revoking a license and before
issuing a written or oral reprimand or assessing a fine, the
commission shall notify the applicant or licensee of the charges and
grant the applicant or licensee an opportunity to be heard. The
hearing must be held not less than thirty days after the applicant or
licensee is notified of the charges. If charges are brought against an
apprentice auctioneer, the apprentice's supervising auctioneer also
must be notified of the charges. Hearing of the charges must be at
a time and place designated by the commission and must be
conducted in accordance with the Administrative Procedures
Act.
(B) Every licensee or applicant aggrieved by a
decision of the commission in denying, suspending, or revoking any
license or in issuing reprimands or fines provided under the
provisions of this chapter may appeal from the decision of the
commission to an administrative law judge as provided under
Article 5 of Chapter 23 of Title 1."
SECTION 120. Section 40-15-210 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 40-15-210. The person whose license or
registration certificate has been suspended or revoked may, within
thirty days, appeal from the action of the board in suspending or
revoking the same to an administrative law judge as provided under
Article 5 of Chapter 23 of Title 1. The board shall certify to an
administrative law judge as provided under Article 5 of Chapter 23
of Title 1 for its consideration a record of the hearing before the
board. Any person who practices dentistry or dental hygiene
or performs dental technological work, in violation of the provisions
of this chapter, is guilty of a misdemeanor and, upon conviction,
must be fined not more than one thousand dollars or imprisoned not
more than two years, or both. Each violation constitutes a separate
offense. The provisions of this section apply to any person aiding
or abetting in any violation of this chapter."
SECTION 121. Section 40-25-40(C) of the 1976 Code, as last
amended by Act 312 of 1992, is further amended to read:
"(C) Members of the commission in subsection (B)(1)(a)
through (d) must be appointed by the Governor with the advice and
consent of the Senate. Before appointing the member in subsection
(B)(1)(d) the Governor shall invite recommendations from the
South Carolina Hearing Aid Society, the Commission
Division on Aging in the Office of the Governor,
the Department of Consumer Affairs, the Department of Education,
the Department of Vocational Rehabilitation, the Board of
Commissioners of the School for the Deaf and the Blind, and other
agencies or organizations which might have knowledge of qualified
citizens to serve on the commission. The term of each member is
four years. Before a member's term expires the Governor, with the
advice and consent of the Senate, shall appoint a successor to
assume his the member's duties at the expiration of
the term. A vacancy must be filled in the manner of the original
appointment. The members annually shall designate one member as
chairman and another as secretary. No member of the commission
who has served two or more full terms may be reappointed until at
least one year after the expiration of his the
member's most recent full term of office."
SECTION 122. Section 40-35-10(5) of the 1976 Code, as last
amended by Act 605 of 1990, is further amended to read:
"(5) `Qualified mental retardation professional' means a
person who, by training and experience, meets the requirements of
applicable federal law and regulations for a qualified mental
retardation professional, as determined by the South Carolina
Department of Mental Retardation Department of
Disabilities and Special Needs."
SECTION 123. Section 40-35-140 of the 1976 Code, as last
amended by Act 605 of 1990, is further amended to read:
"Section 40-35-140. Habilitation centers for the mentally
retarded or persons with related conditions funded in whole or in
part by the Department of Mental Retardation
Disabilities and Special Needs must be under the
supervision of a licensed nursing home administrator or a qualified
mental retardation professional who has been determined by the
department to have the requisite training and experience."
SECTION 124. Section 40-47-140 of the 1976 Code, as last
amended by Act 432 of 1990, is further amended to read:
"Section 40-47-140. (A) The board by
regulation shall establish minimum standards of performance to be
attained on examinations for an applicant to qualify for a license.
(B) For FLEX examinations taken before June 1,
1985, the following standards apply:
An applicant for permanent licensure shall obtain, in one sitting,
a score of at least seventy-five on each day of the examination. If
the applicant has a FLEX weighted average of seventy-five or more
with no daily score below seventy, the board may accept this score
if the applicant currently is board certified by a specialty board
recognized by the American Board of Medical Specialties.
(C) For FLEX examinations taken after June 1, 1985,
the following standards apply:
An applicant for permanent licensure shall obtain a score of
seventy-five or more on both Component I and Component II. An
applicant shall pass both components within five years of the first
taking of any component of this examination.
(D) For the SPEX (Special Purpose) examination, the
following standards apply:
An applicant for permanent licensure who has not passed
National Boards, FLEX, SPEX, or been certified or recertified by a
Specialty Board recognized by the American Board of Medical
Specialties within ten years of the date of his application to this
board, shall pass the SPEX exam. A passing score on the SPEX
examination is seventy-five or better. This requirement is in
addition to all other requirements for licensure. The SPEX
examination requirement does not apply to a physician employed
full time by the South Carolina Department of Corrections, South
Carolina Department of Health and Environmental Control, State
Department of Mental Health, and State Mental Retardation
Department Department of Disabilities and Special
Needs acting within the scope of his employment. A license
issued to this physician is revoked immediately if he leaves the
full-time employment or acts outside his scope of employment.
However, the SPEX examination requirement applies to a physician
providing services under a contract for the State and a physician
providing services for which there is an expectation of payment, is
payment for services, or should have been payment from a source
other than the salary the physician receives from the State."
SECTION 125. The 1976 Code is amended by adding:
"Section 40-73-17. Notwithstanding any other provision
of law, the South Carolina Department of Labor, Licensing, and
Regulation shall provide legal services to all its divisions including
those which by statute are provided legal services by the Attorney
General of South Carolina."
SECTION 126. Section 41-10-70 of the 1976 Code, as last
amended by Act 463 of 1990, is further amended to read:
"Section 41-10-70. Upon written complaint of any
employee alleging a violation of this chapter, the Commissioner
of Labor Director of the Department of Labor, Licensing,
and Regulation or his designee may institute an investigation of
the alleged violation. If the Commissioner of Labor
director determines that a violation exists, he shall endeavor
to resolve all issues by informal methods of mediation and
conciliation."
SECTION 127. Section 41-10-80 of the 1976 Code, as last
amended by Act 463 of 1990, is further amended to read:
"Section 41-10-80. (A) Any employer who violates the
provisions of Section 41-10-30 must be given a written warning by
the Commissioner of Labor Director of the Department
of Labor, Licensing, and Regulation or his designee for the
first offense and must be assessed a civil penalty of not more than
one hundred dollars for each subsequent offense.
(B) Any employer who violates the provisions of Section
41-10-40 must be assessed a civil penalty of not more than one
hundred dollars for each violation. Each failure to pay constitutes a
separate offense.
(C) In case of any failure to pay wages due to an employee as
required by Section 41-10-40 or 41-10-50 the employee may
recover in a civil action an amount equal to three times the full
amount of the unpaid wages, plus costs and reasonable attorney's
fees as the court may allow. Any civil action for the recovery of
wages must be commenced within three years after the wages
become due.
(D) The Commissioner of Labor director shall
promulgate regulations to establish a procedure for administrative
review of any civil penalty assessed by the commissioner
him."
SECTION 128. Section 41-10-90 of the 1976 Code, as last
amended by Act 380 of 1986, is further amended to read:
"Section 41-10-90. In each case where a civil penalty
assessed under subsection (A) or (B) of Section
41-10-80(A) or (B) is not paid within sixty days,
the Commissioner of Labor Director of the Department
of Labor, Licensing, and Regulation or his designee shall bring
an action against the assessed employer for collection of the
penalty. Any amounts collected must be turned over to the State
Treasurer for deposit in the general fund of the State."
SECTION 129. Section 41-10-110 of the 1976 Code, as last
amended by Act 380 of 1986, is further amended to read:
"Section 41-10-110. The Commissioner of Labor, his
inspectors, agents, or designees Director of the Department
of Labor, Licensing, and Regulation or his designee, upon
proper presentation of credentials to the owner, manager, or agent
of the employer, may enter at reasonable times and have the right to
question either publicly or privately any employer, owner, manager,
or agent and the employees of the employer and inspect,
investigate, reproduce, or photograph time records or payroll
records for the purpose of determining that the provisions of this
chapter are complied with."
SECTION 130. Section 41-13-20 of the 1976 Code is amended
to read:
"Section 41-13-20. No employer in this State shall
may engage in any oppressive child labor practices. The
Commissioner of Labor Director of the Department of
Labor, Licensing, and Regulation or his designee shall
promulgate regulations pursuant to Sections 1-23-10, et
seq. which will prohibit and prevent such oppressive child
labor practices provided that such. However, the
regulations shall must not be more restrictive or
burdensome than applicable federal laws or regulations."
SECTION 131. Section 41-13-25 of the 1976 Code, as last
amended by Act 135 of 1989, is further amended to read:
"Section 41-13-25. (A) As determined by the
Commissioner of Labor Director of the Department of
Labor, Licensing, and Regulation or his designee, an employer
who violates a child labor regulation promulgated pursuant to this
chapter must be given a written warning of the violation for a first
offense and fined not less than ten dollars nor more than
fifty dollars for each subsequent offense. Each day during which
the violation continues is a separate offense, and each child
employed in violation of a regulation is a separate offense.
(B) The findings of the commissioner director,
including the amount of the fine, are final unless within thirty days
after receipt of their notice by certified mail the employer requests
in writing to the commissioner director a review of
the findings or the amount of the fine. If a request for review is
made to the commissioner director, a final
determination must be made after an opportunity for a hearing
pursuant to the Administrative Procedures Act.
(C) The amount of the fine as finally determined may be
recovered in a civil action brought in a court of competent
jurisdiction and deposited in the state general fund."
SECTION 132. Section 41-13-50 of the 1976 Code is amended
to read:
"Section 41-13-50. The Commissioner of Labor and
the inspectors and agents Director of the Department of
Labor, Licensing, and Regulation or his designee of the
Department of Labor shall enforce the provisions of this
chapter, make complaints against persons violating its
provisions, and institute prosecutions for violation
thereof of them."
SECTION 133. Section 41-13-60 of the 1976 Code is amended
to read:
"Section 41-13-60. The Commissioner
director and the inspectors and agents of the
Department division may enter and inspect at any
time any place or establishment where minors are employed and
may have access to all such records as may aid in the
enforcement of this chapter."
SECTION 134. Section 41-15-90 of the 1976 Code is amended
to read:
"Section 41-15-90. The Commissioner of Labor
Director of the Department of Labor, Licensing, and Regulation
or his designee shall issue rules and regulations requiring that
employers keep their employees informed of their protections and
obligations under this chapter, including the provisions of applicable
safety and health regulations, through the posting of notices or other
appropriate means. The provisions of Section 41-15-80 and this
section shall do not apply to employers subject to
the provisions of the Federal Railway Safety Act of 1970."
SECTION 135. Section 41-15-100 of the 1976 Code is amended
to read:
"Section 41-15-100. The Commissioner of Labor
Director of the Department of Labor, Licensing, and Regulation
or his designee shall issue regulations requiring employers to
monitor and measure an employee's exposure to potentially toxic
materials or harmful physical agents and to maintain accurate
records of such the employee exposure.
Such These regulations shall must
provide employees or their representatives with an opportunity to
observe such the monitoring or measuring and to
have access to the records thereof of it. Such
These regulations shall also must make
appropriate provision for each employee or former employee to
have access to such records as will indicate his own
exposure to toxic materials or harmful physical agents. Each
employer shall notify promptly notify any employee
who has been or is being exposed to toxic material or harmful
physical agents in concentrations or at levels which exceed those
prescribed by an applicable occupational safety and health standard
promulgated under Sections 41-15-210 to 41-15-330, as
amended, and shall inform any employee who is being thus
exposed of the corrective action being taken.
Where appropriate, such these regulations
also shall also prescribe the type and frequency of
medical examinations or other tests which shall
must be made available, by the employer or at his cost, to
employees exposed to such the hazards in order to
most effectively determine whether the health of such
the employees is adversely affected by such
the exposure. The results of such the
medical examinations or other tests shall must be
made available to the employer, the Commissioner
director, and at the request of the employee, to his
physician.
In the event If such the medical
examinations or other tests are in the nature of research,
such the examinations may be furnished at the
expense of the Department Division of Labor. The
results of such the examinations or tests
shall must be furnished only to the
Commissioner of Labor director and, at the request
of the employee, to his physician."
SECTION 136. Section 41-15-210 of the 1976 Code is amended
to read:
"Section 41-15-210. The Commissioner of Labor
Director of the Department of Labor, Licensing, and Regulation
or his designee may promulgate, modify, or revoke
rules and regulations which will have full force and effect of law
upon being properly certified and filed for the purpose of attaining
the highest degree of health and safety protection for any
and all employees working within the State of South
Carolina, whether employed in the public or private sector."
SECTION 137. Section 41-15-220 of the 1976 Code is amended
to read:
"Section 41-15-220. (A) Before the promulgation,
modification, or revocation of a regulation issued pursuant to this
article, the commissioner director shall conduct a
public hearing at which all interested persons, including employer
and employee representatives, must be provided an opportunity to
appear and present their comments orally or written, or both.
Notice of the hearing must be published in the State Register and in
at least three newspapers, at least one of which has circulation in
upper, lower, and middle South Carolina, once a week for three
weeks. The notice must contain the date, time, and place of the
hearing and a brief description of the proposed regulation.
(B) Occupational safety and health standards promulgated
pursuant to this article are not subject to the Administrative
Procedures Act. After promulgation the department
division shall file a notice in the Legislative Council to be
published in the State Register. This notice must refer to the
federal occupational safety and health administration standards
which have been repromulgated under this section and give specific
notice of differences between the state and federal standard. Filing
and publication of notice in the State Register give notice of the
contents of the standard to a person subject to or affected by it.
(C) Publication of the notice creates a rebuttable presumption
that the:
(1) standard to which it refers was promulgated under this
section;
(2) notice was filed and made available for public inspection
at the day and hour stated in it;
(3) copy on file in the Legislative Council is a true copy of
the original."
SECTION 138. Section 41-15-230 of the 1976 Code is amended
to read:
"Section 41-15-230. Any rule or regulation promulgated,
modified, or revoked under this article may contain a
provision delaying its effective date for such a
period (not in excess of ninety days) as the
Commissioner director determines may be necessary
to insure ensure that affected employers and
employees will be informed of the existence, modification,
or revocation of the rule or regulation and of its terms and that
employers affected are given an opportunity to familiarize
themselves and their employees with the existence of the
requirements of the rule or regulation."
SECTION 139. Section 41-15-240 of the 1976 Code is amended
to read:
"Section 41-15-240. Any affected employer may apply to
the Commissioner of Labor Director of the Department
of Labor, Licensing, and Regulation or his designee for a
temporary permit granting a variance from a rule or regulation or
any provision thereof of it promulgated under this
article. Affected employees shall must be given
notice by the employer of each such application and
shall must be furnished an opportunity to participate
in any hearing which shall must be directed at the
request of the employer or by the Commissioner
director on his own motion. Such The
temporary permit shall must be granted at the
discretion of the Commissioner director if sufficient
evidence establishes that:
(a) He is unable to comply with a rule or regulation by its
effective date because of unavailability of professional or technical
personnel or of materials and equipment needed to come into
compliance with the rule or regulation or because necessary
construction or alteration of facilities cannot be completed by the
effective date;.
(b) He is taking all available steps to safeguard his employees
against the hazard covered by the rule or
regulation;.
(c) He has an effective program for coming into compliance
with the rule or regulation as quickly as practicable. Any
temporary permit issued under this section shall
must prescribe the practices, means, methods,
operations, and processes which the employer must
shall adopt and use while the permit is in effect and state in
detail his program for coming into compliance with the rule or
regulation.
No temporary permit may be in effect for longer than the period
needed by the employer to achieve compliance with the rule or
regulation or for one year, whichever is shorter, except that
such an order may be renewed not more than twice
(1) so long as the requirements of this paragraph are met
and (2) if an application for a renewal is filed at least ninety
days prior to before the expiration date of the order.
The form of the application itself for a temporary permit
shall must be as prescribed by the
Commissioner director."
SECTION 140. Section 41-15-250 of the 1976 Code is amended
to read:
"Section 41-15-250. Any affected employer may apply to
the Commissioner director for a permit for a
permanent variance from a rule or regulation promulgated under
this article. Affected employees and their bargaining representative,
if any, shall must be given notice by the employer
of each such application and shall must be
furnished an opportunity to participate in a hearing. The
Commissioner director shall issue such
the permit if he determines on the record, after opportunity
for an inspection where applicable and a hearing, that the proponent
of a variance has demonstrated by a preponderance of the evidence
that the conditions, practices, means, methods, operations,
or processes used or proposed to be used by an employer will
provide employment and places of employment to his employees
which are as safe and healthful as those which would prevail if he
complied with the rule and regulation. The permit so issued
shall must prescribe the conditions the employer
must shall maintain and the practices, means,
methods, operations, and processes which he must
shall adopt and utilize to the extent they differ from the
rule or regulation in question. Such a This permit
may be revoked or modified upon application by an employer,
employee, or by the Commissioner director
on his own motion, in the manner prescribed for its issuance under
this section at any time after six months from its issuance."
SECTION 141. Section 41-15-260 of the 1976 Code is amended
to read:
"Section 41-15-260. (A) The Commissioner
director, his inspectors, compliance officers,
agents, or designees, upon proper presentation of
credentials to the owner, manager, or agent of the
employer, shall enter at reasonable times and have
has the right to question either publicly or privately any
such employer, owner, manager, agent, or the
employees of the employer and inspect, investigate, reproduce,
photograph, and sample all pertinent places, sites, areas,
work injury records, and such other records during
regular working hours and at other reasonable times, and within
reasonable limits, and in a reasonable manner when such
it comes under the jurisdiction of the Commissioner
director to enforce the occupational safety and health
provisions of this title.
(B) If an inspector is denied admission for purposes of
inspection, the Commissioner director may seek a
warrant as follows:
(1) Any circuit judge having jurisdiction where the inspection
and investigation is to be conducted is empowered to
may issue administrative warrants upon proper showing of
the need for such entry. Such The
inspection and investigation may include interviewing of employees,
photographing, reproducing, sampling, and such other tests
and acts as are necessary to carry out the purposes of the
inspection and investigation.
(2) A warrant shall may be issued only upon
an affidavit of an officer or employee of the Department
Division of Labor duly designated and having knowledge
of the facts alleged, sworn to before the circuit judge establishing
the grounds for issuing the warrant and certifying that request for
permission to conduct the inspection has been made to the employer
concerned and was refused and that the Commissioner of
Labor director has authorized the application for
issuance of the warrant. If the circuit judge is satisfied that grounds
for the application exist, he shall issue a warrant identifying the
area, premises, building, or conveyance to be inspected, the
purpose of such inspection, and, where appropriate, the type
of property to be inspected. The warrant shall must
be directed to a person authorized by the Commissioner of
Labor director to execute it. The warrant shall
must state the grounds for issuance with the supporting
affidavit being made a part thereof of it. It
shall must command the person to whom it is
directed to inspect the area, premises, building, or conveyance
identified for the purpose specified. The warrant shall
must direct that it be served at a reasonable time. It
shall and designate the circuit judge to whom it
shall must be returned.
(3) A warrant issued pursuant to this section shall
must be served within ten days and returned within thirty
days of its date of issue. The circuit judge who has issued a
warrant under this section shall attach to the warrant a copy of the
return and all papers filed in connection therewith with
it and shall cause them to be filed with the court which issued
such the warrant.
(4) Any circuit judge authorized to issue warrants pursuant to
this section shall keep a record along with a copy of the return
warrant and supporting affidavit and documents for a period of
three years from date of issuance of each warrant. The record
shall must be on a form prescribed by the
Commissioner of Labor director and reflect as to
each warrant:
(a) date and exact time of issue;
(b) name of person to whom warrant issued;
(c) name of person whose establishment or site is to be
inspected;
(d) reason for issuance of warrant;
(e) date and time of return."
SECTION 142. Section 41-15-270 of the 1976 Code is amended
to read:
"Section 41-15-270. The Commissioner of Labor
Director of the Department of Labor, Licensing, and Regulation
or his designee may subpoena witnesses, documents, take and
preserve testimony, examine witnesses, administer oaths,
and, upon proper presentation of credentials to the owner, manager
or agent of the employer, enter any place, site, or area
where employment comes under the jurisdiction of the
Commissioner director and interrogate any person
employed therein in it or connected
therewith with it or the proper officers of a
corporation or employer, or he may file a written or printed list of
interrogatories and require full and complete answers to them to be
returned under oath within fifteen days of the receipt of
such the list."
SECTION 143. Section 41-15-280 of the 1976 Code is amended
to read:
"Section 41-15-280. If, upon inspection or investigation,
the Commissioner director or his authorized
representative ascertains that an employer has violated a
requirement of any rule or regulation promulgated pursuant to this
article, he shall with reasonable promptness shall
issue a citation to the employer. Each citation shall
must be in writing and shall must describe
with particularity the nature of the violation or violations, including
a reference to any statute or rule or regulation alleged to have been
violated. The citation shall fix a reasonable time for the abatement
of the violation. The Commissioner director may
prescribe procedures for the issuance of a notice in lieu of a citation
with respect to de minimis violations which have no direct or
immediate relationship to safety or health. Such
This notice shall have has the effect of a
recommendation to the employer;. Compliance
will is not be required.
Each citation issued under this section, or a copy or copies
thereof of it, shall must be
posted prominently posted, as prescribed in
regulations issued by the Commissioner director, at
or near each place a violation referred to in the citation occurred.
No citation may be issued under this section after the expiration
of six months following the occurrence of any violation."
SECTION 144. Section 41-15-290 of the 1976 Code is amended
to read:
"Section 41-15-290. (a) The court of common pleas of
the county where the place of employment is located shall
have has jurisdiction, upon petition of the
Commissioner of Labor Director of the Department of
Labor, Licensing, and Regulation or his designee, to restrain
any conditions or practices in any place of employment which are
such that a danger exists which reasonably could
reasonably be expected to cause death or serious physical
harm immediately or before the imminence of such
the danger can be eliminated through the enforcement
procedures provided by law. Any order issued under this section
may require such steps to be taken as may be necessary to
avoid, correct, or remove such the imminent danger
and prohibit the employment or presence of any individual in
locations or under conditions where such the
imminent danger exists, except individuals whose presence is
necessary to avoid, correct, or remove such imminent danger or to
maintain the capacity of a continuous process operation to resume
normal operations without a complete cessation of operations, or
where a cessation of operations is necessary to permit such
it to be accomplished in a safe and orderly manner.
(b) Upon the filing of any such a petition the
court of common pleas shall have has jurisdiction to
grant such the injunctive relief or temporary
restraining order pending the outcome of an enforcement proceeding
pursuant to the law.
(c) Whenever and as soon as a safety specialist concludes that
conditions or practices described in item subsection
(a) exist in any place of employment, he shall inform the affected
employees and employers of the danger and that he is
recommending to the Commissioner director that
relief be sought.
(d) If the Commissioner of Labor, or his authorized
representative, Director of the Department of Labor,
Licensing, and Regulation or his designee arbitrarily or
capriciously fails to seek relief under this section, any employee
who may be injured or aggrieved by reason of such
the failure, or the representative of such the
employees, may bring an action against the Commissioner
director in the court of common pleas for the district in
which the imminent danger is alleged to exist, or the employer has
its principal office, or an affected employee resides, for a writ of
mandamus to compel the Commissioner director to
seek such an order and for such further relief as may
be appropriate."
SECTION 145. Section 41-15-300 of the 1976 Code is amended
to read:
"Section 41-15-300. If, after an inspection or investigation,
the Commissioner director issues a citation, he
shall within a reasonable time after the termination of
such the inspection or investigation, he
shall notify the employer by certified mail of the penalty, if
any, assessed under Section 41-15-320."
SECTION 146. Section 41-15-320 of the 1976 Code, as last
amended by Act 25 of 1991, is further amended to read:
"Section 41-15-320. (a) Any employer who wilfully or
repeatedly violates any occupational safety or health rule or
regulation promulgated pursuant to this article may be assessed a
civil penalty of not more than seventy thousand dollars for each
violation.
(b) Any employer who has received a citation for a serious
violation of an occupational safety or health rule or regulation
promulgated pursuant to this article may be assessed a civil penalty
of up to not more than seven thousand dollars for
each such violation.
(c) Any employer who has received a citation for a violation of
an occupational safety or health rule or regulation or order
promulgated pursuant to this article, and such the
violation is specifically determined not to be of a serious nature,
may be assessed a civil penalty of up to not more
than seven thousand dollars for each such violation.
(d) Any employer who fails to correct a violation for which a
citation has been issued under Section 41-15-280 within the period
permitted for its correction (which period shall does
not begin to run until the date of the final order of the
commissioner director in the case of any review
proceeding initiated by the employer in good faith and not solely
for delay or avoidance of penalties), may be assessed a civil penalty
of not more than seven thousand dollars for each day during which
such the failure or violation continues.
(e) Any employer who wilfully violates any occupational safety
or health rule or regulation promulgated pursuant to this article and
that violation causes death to any employee shall be deemed
is guilty of a misdemeanor and, upon conviction,
must be punished by a fine of fined not
more than ten thousand dollars or by imprisonment for
imprisoned not more than six months, or by
both; except that. However, if the
conviction is for a violation committed after a first conviction of
such the person, punishment shall he
must be by a fine of fined not more than
twenty thousand dollars or by imprisonment for
imprisoned not more than one year, or by both.
(f) Any employer who violates any of the posting requirements,
as prescribed under the provisions of this article, may be assessed a
civil penalty of up to seven thousand dollars for each violation.
(g) Any person who gives advance notice of any inspection to
be conducted under this article, without authority from the
Commissioner of Labor Director of the Department of
Labor, Licensing, and Regulation or his designee, shall be
deemed is guilty of a misdemeanor and, upon
conviction, shall must be punished by a
fine of fined not more than one thousand dollars or
by imprisonment for imprisoned not more than six
months, or both.
(h) Whoever knowingly makes any false statement,
representation, or certification in any application, record, report,
plan, or other document filed or required to be maintained
pursuant to this article shall be deemed is guilty of
a misdemeanor and, upon conviction, shall
must be punished by a fine of fined not
more than ten thousand dollars or by imprisonment for
imprisoned not more than six months, or both.
(i) For the purposes of this section, an occupational
safety or health rule or regulation shall be is
deemed to be a rule or regulation promulgated by the
Commissioner of Labor Director of the Department of
Labor, Licensing, and Regulation or his designee pursuant to
Section 41-15-210 which requires conditions, or the adoption or use
of one or more practices, means, methods, operations, or processes
necessary or appropriate to provide safe or healthful employment
and places of employment.
(j) For the purposes of this section, a serious violation
shall be deemed to exist exists in a place of
employment if there is a substantial probability that death or serious
physical harm could result from a condition which exists, or from
one or more practices, means, methods, operations, or processes
which have been adopted or are in use, in such the
place of employment unless the employer did not, and could not
with the exercise of reasonable diligence, know of the presence of
the violation.
(k) Except for items subsections (e),
(g), and (h) which establishes establish a
misdemeanor over which the courts of general sessions have
jurisdiction, all penalty assessments shall must be
made by the Commissioner director.
(l) Any amounts collected under this section shall
must be turned over to the State Treasurer for deposit in
the general fund of the State."
SECTION 147. Section 41-15-520 of the 1976 Code is amended
to read:
"Section 41-15-520. Any employee believing that he has
been discharged or otherwise discriminated against by any person in
violation of Section 41-15-510 may, within thirty days after
such the violation occurs, may file a
complaint with the Commission Division of Labor
of the Department of Labor, Licensing, and Regulation
alleging such the discrimination. Upon receipt of
such the complaint, the Commissioner
Director of the Department of Labor, Licensing, and Regulation
or his designee shall cause investigation to be made as he
deems considers appropriate. If upon such
investigation the Commissioner director determines
that the provisions of Section 41-15-510 have been violated, he
shall institute an action in the appropriate court of common pleas
against such the person. In any such
the action the court of common pleas shall have
has jurisdiction for cause shown to restrain violations of
Section 41-15-510 and shall order all appropriate relief
including rehiring or reinstatement of employee to his former
position with back pay."
SECTION 148. Section 41-16-20 (3), (4), (13), (14), (15), and
(16) of the 1976 Code are amended to read:
"(3) `Department Division' means the
South Carolina Division of Labor of the Department of
Labor, Licensing, and Regulation.
(4) `Commissioner Director' means the
Commissioner of the South Carolina Department of Labor or his
designee or representative Director of the Department of
Labor, Licensing, and Regulation or his designee.
(13) `New installation' means a facility, the construction or
relocation of which is begun, or for which an application for a new
installation permit is filed, on or after the effective date of
regulations relating to those permits adopted by the
commissioner director under authority of this
chapter. All other installations are existing installations.
(14) `Inspector' means an inspector employed by the
department division for the purpose of
administering this chapter.
(15) `Special inspector' means an inspector licensed by the
commissioner director and not employed by the
department division.
(16) `Provisions of this chapter' include regulations promulgated
by the commissioner director pursuant to this
chapter."
SECTION 149. Section 41-16-40 of the 1976 Code, as last
amended by Act 102 of 1993, is further amended to read:
"Section 41-16-40. 1. The commissioner
Director of the Department of Labor, Licensing, and Regulation
or his designee shall promulgate regulations governing
maintenance, construction, alteration, and installation of facilities
and the inspection and testing of new and existing installations as
necessary to provide for the public safety and to protect the public
welfare. These regulations include, but are not limited to,
regulations providing for:
a. classifications of types of facilities.;
b. maintenance, inspection, testing, and operation of the
various classes of facilities.;
c. construction of new facilities.;
d. alteration of existing facilities.;
e. minimum safety requirements for all existing
facilities.;
f. control or prevention of access to facilities, temporarily
decommissioned facilities, or dormant facilities.;
g. the reporting of accidents and injuries arising from the
use of facilities.;
h. qualifications for obtaining a special inspector's license,
revocation of a special inspector's license, disqualification of special
inspectors, and ethics of special inspectors.;
i. the adoption of procedures for the issuance of
variances.;
j. the amount of fees charged and collected for inspection,
permits, and licenses. Fees must be set at an amount sufficient to
cover costs as determined from consideration of the reasonable time
required to conduct an inspection, reasonable hourly wages paid to
inspectors, and reasonable transportation and similar expenses.
2. Insofar as applicable, regulations adopted for facilities
installed after January 1, 1986, must be based on the American
National Standard Safety Code for Elevators, Dumbwaiters,
Escalators, and Moving Walks, and supplements thereto
to it, A.17.1. The commissioner director
shall promulgate regulations for facilities installed prior to
before January 1, 1986, according to the applicable
provisions of the American National Standard Safety Code as he
considers necessary. In promulgating regulations the
commissioner director may adopt the American
National Standard Safety Code, or any part of it, by reference.
3. The commissioner director shall furnish
copies of the regulations promulgated by him to any person who
requests them, without charge, or upon payment of a charge not to
exceed the actual cost of printing of the regulations."
SECTION 150. Section 41-16-50 of the 1976 Code is amended
to read:
"Section 41-16-50. The commissioner Director
of the Department of Labor, Licensing, and Regulation or his
designee is charged with the affirmative duty of administering
and enforcing the provisions of this chapter."
SECTION 151. Section 41-16-60 of the 1976 Code is amended
to read:
"Section 41-16-60. Within three months after the date of
promulgation of regulations under this chapter relating to
registration of facilities, the owner of every existing facility,
whether or not dormant, shall register each facility with the
commissioner Director of the Department of Labor,
Licensing, and Regulation or his designee, giving type, contract
load and speed, name of manufacturer, its location, and the purpose
for which it is used and any other information the
commissioner director may require. Registration
must be made on a form to be furnished by the department
division upon request. Facilities, the construction of which
are commenced subsequent to the date of promulgation of those
regulations, must be registered in the manner prescribed by the
commissioner director."
SECTION 152. Section 41-16-70 of the 1976 Code is amended
to read:
"Section 41-16-70. All new and existing facilities, except
dormant facilities, must be tested and inspected in accordance with
the following schedule:
1. Every new or altered facility must be inspected and tested
before the operating permit is issued.
2. Every existing facility registered with the
commissioner director must be inspected within one
year after the effective date of the registration, except that
the commissioner director may, at his
discretion, may extend by regulation the time specified for
making inspections.
3. Every facility must be inspected not less frequently
than at least annually, except that the
commissioner director may adopt regulations
providing for inspections of facilities at intervals other than
annually.
4. The inspections required by items 1 to 3 of this
section must be made only by inspectors or special inspectors.
An inspection by a special inspector may be accepted by the
commissioner director in lieu of a required
inspection by an inspector.
5. A report of every inspection must be filed with the
commissioner director by the inspector or special
inspector, on a form approved by and containing all information
required by the commissioner director, after the
inspection has been completed and within the time provided by
regulation, but not to exceed thirty days. The report shall
must include all information required by the
commissioner director to determine whether the
owner of the facility has complied with applicable regulations. For
the inspection required by item 1, the report shall
must indicate whether the facility has been installed in
accordance with the detailed plans and specifications approved by
the commissioner director and meets the
requirements of the applicable regulations.
6. In addition to the inspections required by items 1 to 3, the
commissioner director may provide by regulation
for additional inspections he considers necessary to enforce the
provisions of this chapter."
SECTION 153. Section 41-16-80 of the 1976 Code is amended
to read:
"Section 41-16-80. On and after the effective date of
regulations relating to alterations, detailed plans of each facility to
be altered must be submitted to the commissioner
director, together with an application for an alteration
permit, on forms to be furnished or approved by the
commissioner director. Repairs or replacements
necessary for normal maintenance are not alterations and may be
made on existing installations with parts equivalent in material,
strength, and design to those replaced, and no plans or
specifications or application need be filed for the repairs or
replacements. However, nothing in this section authorizes the use
of any facility contrary to an order issued pursuant to Section
41-16-110."
SECTION 154. Section 41-16-90 of the 1976 Code is amended
to read:
"Section 41-16-90. A permit must be issued by the
commissioner director before construction on a new
installation is begun. The department division shall
issue a permit for relocation or installation, as applicable, if the
plans and specifications indicate compliance with applicable
regulations.
If the plans and specifications indicate a failure of compliance
with applicable regulations, the department division
shall give notice of necessary changes to the person filing the
application. After the changes have been made and approved, the
department division shall issue a permit.
Plans must be submitted in triplicate and must be
accompanied by an application for the permit on a form to be
furnished by the commissioner director. The plans
shall must include:
1. sectional plan of car and hoistway.;
2. sectional plan of machine room.;
3. sectional elevation of hoistway and machine room,
including the pit, bottom, and top clearance of car, and
counterweight.;
4. size and weight of guide rails, and guide rail bracket
spacing.;
5. other information which the department
division may require."
SECTION 155. Section 41-16-100 of the 1976 Code, as last
amended by Act 102 of 1993, is further amended to read:
"Section 41-16-100. Operating certificates must be issued
by the commissioner Director of the Department of
Labor, Licensing and Regulation to the owner of every facility
when the inspection report indicates compliance with the applicable
provisions of this chapter. However, no certificates may be issued
if the fees required by Section 41-16-140 have not been paid.
Certificates must be issued within thirty days after determination by
the department division that all deficiencies found
upon inspection have been corrected and all fees have been paid.
No facility may be operated after the thirty days or after any
extension granted by the commissioner director has
expired, unless an operating certificate has been issued.
The operating certificate shall must indicate the
type of equipment for which it is issued and, in the case of
elevators, shall must state whether passenger or
freight, and also shall state the contract load and
speed for each facility. The certificate must be posted
conspicuously in the car of an elevator or on or near a dumbwaiter,
escalator, moving walk, handicap lift, or manlift."
SECTION 156. Section 41-16-110 of the 1976 Code, as last
amended by Act 102 of 1993, is further amended to read:
"Section 41-16-110. If the commissioner
Director of the Department of Labor, Licensing, and
Regulation has reason to believe that the continued operation of
a facility constitutes an imminent danger which could
reasonably could be expected to injure seriously or cause
death to members of the public, the commissioner
director may apply to the circuit court in the county in
which the imminently dangerous condition exists for a temporary
order for the purpose of enjoining the imminently dangerous
facility. Upon hearing, if considered appropriate by the court, a
permanent injunction may be issued to ensure that the imminently
dangerous facility be prevented or controlled. Upon the elimination
or rectification of the imminently dangerous condition, the
temporary or permanent injunction must be vacated."
SECTION 157. Section 41-16-120 of the 1976 Code is amended
to read:
"Section 41-16-120. The commissioner
director, pursuant to regulation, may grant exceptions and
variances from the requirements of regulations promulgated for any
facility. Exceptions or variances must be reasonably related to the
age of the facility and may be conditioned upon a repair or
modification of the facility considered necessary by the
commissioner director to assure reasonable safety.
However, no exception or variance may be granted except to
prevent undue hardship. These facilities are subject to orders issued
pursuant to Section 41-16-110."
SECTION 158. Section 41-16-130 of the 1976 Code is amended
to read:
"Section 41-16-130. Every owner of a facility subject to
regulation by this chapter shall grant access to that facility to the
commissioner director and department
division personnel administering the provisions of this
chapter. Inspections must be permitted at reasonable times, with or
without prior notice."
SECTION 159. Section 41-16-140 of the 1976 Code, as last
amended by Act 102 of 1993, is further amended to read:
"Section 41-16-140. The commissioner
director shall promulgate regulations to charge and collect
fees for inspection, permits, and licenses. Fees may be set by
regulation not more than once each year. Fees established by the
commissioner director must be based upon the costs
of administering the provisions of this chapter and shall
must give due regard to the time spent by
department division personnel in performing duties
and to any travel expenses incurred.
In cases where the fees are not paid within sixty days, the
Attorney General shall bring an action against the assessed owner or
operator. Any amounts collected must be turned over to the State
Treasurer for deposit in the general fund of the State. The State
may be granted costs and attorneys' fees for such collection
actions."
SECTION 160. Section 41-16-150 of the 1976 Code is amended
to read:
"Section 41-16-150. Every facility must be maintained by
the owner in a safe operating condition and in conformity with the
regulations promulgated by the commissioner
director."
SECTION 161. Section 41-16-160 of the 1976 Code is amended
to read:
"Section 41-16-160. No political subdivision may make or
maintain any ordinance, bylaw, or resolution providing for the
licensing of special inspectors. Any ordinance, bylaw, or resolution
relating to the inspection, construction, installation, alteration,
maintenance, or operation of facilities within the limits of the
political subdivision, which conflicts with this chapter or with
regulations promulgated by the commissioner
director, is void. The commissioner,
director in his discretion, may accept inspections by local
authorities in lieu of inspections required by Section
41-16-70, but only upon a showing by the local authority
that applicable laws and regulations will be consistently and
literally will be enforced and that inspections will be
performed by special inspectors."
SECTION 162. Section 41-16-180 of the 1976 Code, as last
amended by Act 102 of 1993, is further amended to read:
"Section 41-16-180. 1. Any owner, operator, or
management company who fails to register a facility as required by
Section 41-16-60 may be assessed a civil penalty of not more than
five hundred dollars for each facility not registered.
2. Any owner, operator, or management company who fails to
correct a violation of any safety standard promulgated pursuant to
this chapter after being given written notice by the
commissioner Director of Labor, Licensing, and
Regulation or his designee of the standard and of the time set
for its correction may be assessed a civil penalty of not more than
one thousand dollars for each such violation.
3. Any owner, operator, or installation contractor who begins
alteration, relocation, or installation of a facility before permits are
issued pursuant to Sections 41-16-80 or 41-16-90 may be assessed a
civil penalty of not more than two times the applicable permit fee.
4. Any owner, operator, or management company who fails to
report an accident which results in serious injury to any person
other than an employee of the owner or operator may be assessed a
civil penalty of not more than one thousand dollars.
5. Any owner, operator, or management company who operates
a facility after an order of the commissioner
director declaring that facility dormant, temporarily
decommissioned, or otherwise ineligible for an operating permit
may be assessed a civil penalty of not more than two thousand
dollars for each such violation.
6. All amounts collected under this section must be turned over
to the State Treasurer for deposit in the general fund of the State.
7. Any owner, operator, management company, or contractor
affected or aggrieved by any:
(a) any act of the commissioner
director,
(b) any citation issued by the commissioner
director,
(c) any penalty assessed by the commissioner
director, or
(d) any abatement period set by the
commissioner director
may petition the commissioner director within
thirty days of notice of the act complained of for administrative
review. The provisions of Article II III
(Administrative Procedures) of Act 176 of 1977 Chapter
23 of Title 1, as amended, shall govern contested cases
of this nature."
SECTION 163. Section 41-17-10 of the 1976 Code is amended
to read:
"Section 41-17-10. The Commissioner of Labor
Director of the Department of Labor, Licensing, and Regulation
or his designee or his agents shall:
(a) investigate industrial disputes or strikes or lockouts arising
between employer and employees or capital and
labor,;
(b) ascertain, as near as may be, the cause or causes of
such the industrial disputes or strikes or
lockouts,;
(c) make a finding of fact in respect thereto, to
them;
(d) endeavor, as far as possible, to remove misunderstandings or
differences and to induce both sides to such an industrial
dispute or strike or lockout to arrive at an
agreement,;
(e) nominate, appoint, or act as arbitrators when
so requested by both sides to such a the
controversy and;
(f) in general, remove as far as possible the causes for industrial
disputes or strikes or lockouts and induce an amicable settlement of
them.
Unless the Commissioner director or his agents
find it inadvisable so to do the finding of fact of the
Commissioner director or his agents as to all
such disputes shall must be reported to the
Governor as soon as practicable in each case and annually to the
General Assembly."
SECTION 164. Section 41-17-20 of the 1976 Code is amended
to read:
"Section 41-17-20. When the Commissioner
director or his agents shall fail to induce both sides
of such an industrial dispute or strike or lockout to arrive at
an agreement, the Commissioner he may appoint a
committee of three as follows: one from capital, one from
labor, and one at large. The Commissioner
director shall be is ex officio chairman of
such the committee. The duties of the committee
shall be are the same as those prescribed for the
Commissioner director in Section 41-17-10."
SECTION 165. Section 41-17-40 of the 1976 Code is amended
to read:
"Section 41-17-40. The Commissioner of Labor
director or his agents may summon and examine in public
or in executive session any person concerned in any such
a strike or lockout or industrial dispute or any other person
within the State and may compel them to testify."
SECTION 166. Section 41-17-50 of the 1976 Code is amended
to read:
"Section 41-17-50. The Commissioner of Labor
director or his agents may compel the production of books
or documents relating to questions in dispute;,
inspect property with respect to which there is a dispute with
relation to an industrial dispute or strikes or
lockout;, examine into working conditions
and sanitary conditions;, and at all times have
access to any property or premises necessary to any such
inspection."
SECTION 167. Section 41-17-60 of the 1976 Code is amended
to read:
"Section 41-17-60. The Commissioner of Labor
director or his agents can be called into session and into the
performance of their duties and functions under this chapter by the
Governor."
SECTION 168. Section 41-17-70 of the 1976 Code is amended
to read:
"Section 41-17-70. Any person that who
hinders or obstructs the Commissioner of Labor
director or his agents in the full and free performance of
their duties under this chapter shall be is guilty of a
misdemeanor for each and every such offense and,
upon conviction, in a court of competent jurisdiction
shall must be fined not less than twenty-five
dollars, nor more than one hundred dollars or sentenced
to serve imprisoned not more than thirty days upon
the county chain gang."
SECTION 169. Section 41-18-40 (3), (11), and (12) of the 1976
Code, as last amended by Act 144 of 1993, are further amended to
read:
"(3) `Commissioner Director' means the
Commissioner of the South Carolina Department of Labor or his
designee or representative Director of the Department of
Labor, Licensing, and Regulation or his designee.
(11) `Department Division' means the South
Carolina Department of Labor Division of Labor of the
Department of Labor, Licensing, and Regulation.
(12) `Special inspector' means an inspector licensed by the
commissioner director and not employed by the
department division." SECTION 170. Section 41-18-50 of the 1976 Code is amended to read:
"Section 41-18-50. No amusement device may be
operated in the State without a permit issued by the
commissioner director. The permits are not
transferable, and if any permit holder voluntarily
discontinues operation of the amusement device, all rights secured
under the permit are terminated."
SECTION 171. Section 41-18-60 of the 1976 Code, as last
amended by Act 144 of 1993, is further amended to read:
"Section 41-18-60. 1. Before commencement of the
operation of a permanent or temporary device, the owner or lessee
shall make written application to the commissioner
director for a permit to operate. The permit is valid for
a period of up to one year expiring on December thirty-first
of the year issued.
2. No temporary device may be used at any time or location
unless prior notice of intent to use same it has been
given to the commissioner director. Notice of
planned schedules shall must:
(a) be in writing,;
(b) identify the temporary device,;
(c) state the intended dates and locations of
use,;
(d) be mailed to the commissioner director at
least seven days before the first intended date of
use;.
However, except the commissioner
director may, in his discretion, may waive
these requirements.
3. A permit to operate must be issued to the owner or lessee of
an amusement device when:
(a) written application has been made to the
commissioner director;
(b) the amusement device has passed all required inspections;
(c) the liability insurance required by Section 41-18-90 has
been met in the amount prescribed.
4. The commissioner director may revoke any
permit issued pursuant to this chapter if it is determined that an
amusement device is:
(a) being operated without the inspections required by
Sections 41-18-70 and 41-18-80; or
(b) being operated without the insurance required by Section
41-18-90; or
(c) being operated with a mechanical, electrical, structural,
design, or other defect which presents an excessive risk of serious
injury to passengers, bystanders, operators, or attendants; or
(d) being operated without the required documentation or
paperwork; or
(e) being operated in a manner contrary to the operating fact
sheets.
5. Any other violation of the provisions of this chapter may
result in a revocation, if written notice of noncompliance is served
upon the owner specifying any violation of the provisions of this
chapter and directing the owner to correct the violations within the
period specified by the commissioner director.
In the event If the owner and the department
division fail to agree that the violations referred to
herein have in fact been corrected, then the
department division shall give notice of and provide
a hearing for the owner to determine whether compliance has in
fact been met. The provisions of Article II III
(Administrative Procedures) of Act 176 of 1977 Chapter
23 of Title 1, as amended, shall govern contested cases
of this nature and any other contested cases arising under
the provisions of this chapter.
6. Nothing in this chapter prevents an owner whose permit to
operate an amusement device has been revoked pursuant to this
section from reapplying for a permit in accordance with this
chapter, except as otherwise specifically provided in this chapter.
Upon application to have a revoked permit reinstated under this
section, the department division shall inspect the
amusement ride in question as promptly as practicable, but in no
case more than seventy-two hours after the submission of the
application."
SECTION 172. Section 41-18-70 of the 1976 Code, as last
amended by Act 144 of 1993, is further amended to read:
"Section 41-18-70. Before a permit may be issued as
provided in Sections 41-18-50 and 41-18-60, an inspection of the
amusement device must be made in compliance with the procedures
set by the commissioner director. The inspection
must have been conducted within one month prior to
before the permit application, unless the period is extended
by operation of subsection 5 of Section
41-18-80(5)."
SECTION 173. Section 41-18-80 of the 1976 Code, as last
amended by Act 144 of 1993, is further amended to read:
"Section 41-18-80. (1) In the case of a permanent
device, the amusement device must be inspected by the
commissioner director or special inspector.
Thereafter, As a requirement for the issuance of each
subsequent permit, the amusement device must be inspected at least
annually by the commissioner director or by a
special inspector. The inspection shall at minimum
must comply with the requirements of the
commissioner director. An affidavit of the annual
inspection must be filed with the commissioner
director.
(2) In the case of a temporary device, before first operation in
the State each year, the amusement device must be inspected by the
commissioner director or special inspector for the
permit to be issued. Thereafter After that time, the
amusement device must be inspected at least annually by the
commissioner director or a special inspector. The
inspection must at minimum must comply with the
requirements of the commissioner director. An
affidavit of the annual inspection must be filed with the
commissioner director.
(3) In the case of an amusement device which is substantially
rebuilt or substantially modified so as to change the structure,
mechanism, or capacity of the device, the owner or lessee shall give
written notice to the commissioner director who
shall cause the device to be inspected prior before
to the time in which it is put into operation and who shall
cause any current permit to be updated so as to include any
modifications made to the device.
(4) In the event If an operator is unable to
secure an inspection within one year from the date of the previous
inspection, the previous inspection is considered valid for purposes
of this chapter for a period of thirty additional days, if the
operator made an inspection request to any of those individuals
qualified to make the inspection at least sixty days prior to
before the permit expiration date.
(5) Upon proper presentation of credentials, the
commissioner director or his inspectors may enter
unannounced and inspect amusement devices, at reasonable
times and in a reasonable manner and have the right to question any
owner, manager, or agent of the owner, to inspect, investigate,
photograph, and sample all pertinent places, areas, and devices, and
to examine and reproduce all pertinent documents and records for
the purpose of enforcing the provisions of this chapter. No fee may
be charged for these unannounced inspections.
(6) No amusement device which fails to pass an inspection may
be operated for public use until it has passed a subsequent
inspection.
(7) Each sponsor of a fair or carnival and the owner of the land
or their designees, upon which the fair or carnival is located, shall
make a visual inspection of each amusement device at least once
each week during the period the fair or carnival is operating. The
commissioner director shall provide a checklist for
this inspection. If an unsafe amusement device or condition is
discovered, it must be reported immediately
reported to the commissioner director.
(8) A special inspector shall must have the
following qualifications:
(a)(1) at least five years' experience in amusement device
maintenance and safety, and completion of approved courses
in materials inspection and testing and in fasteners, or in the
alternative,;
(2) a four-year college degree in engineering or
architecture with a minimum of twelve semester hours of course
work in the area of mechanics and strength of materials.
(b) Evidence of successful completion of an approved Rides
Safety Inspection Course within the previous two calendar
years."
SECTION 174. Section 41-18-100 of the 1976 Code, as last
amended by Act 144 of 1993, is further amended to read:
"Section 41-18-100. 1. The owner or amusement ride
operator may deny any person entrance to the amusement ride based
on the person's size, weight, or physical condition if the owner or
amusement ride operator believes the entry may jeopardize the
safety of the person desiring entry, riders, or other persons. Denial
may must not be based on color, race, sex, religion,
or national origin.
2. The owner or lessee of any amusement device which, during
the course of its operation, is involved in an accident which results
in a serious injury shall report the injury to the owner's or lessee's
insurer.
3. The owner or lessee of any amusement device which, during
the course of its operation, is involved in an accident which results
in a serious injury shall report the injury to the
commissioner director immediately and in no case
later than the close of business of the commissioner's
director's next business day. Any owner or lessee who
becomes aware at a later date that a serious injury had occurred
shall report it immediately and in no case later than the end of the
next business day.
4. When a catastrophic accident occurs involving the operation
of an amusement device, the owner or lessee shall
immediately shall shut down the device from further use.
The device may not resume operation until the safety coordinator
determines that the catastrophic accident was not caused by a
mechanical or structural defect in the amusement device.
5. If the safety coordinator determines that a catastrophic
accident was caused by a mechanical failure or structural defect, the
device must remain shut down until repairs are completed and the
device is considered operational by a licensed architect, professional
engineer, qualified inspector of an insurance underwriter, or other
qualified inspector, each of whom must be approved by the
commissioner director. An affidavit of the
inspection and correction of defect must be filed with the
commissioner director."
SECTION 175. Section 41-18-110 of the 1976 Code, as last
amended by Act 144 of 1993, is further amended to read:
"Section 41-18-110. Upon request, the
commissioner director shall furnish to all owners,
lessees, and operators of amusement devices notice of all rights and
obligations under the provisions of this chapter upon receipt of
permit applications."
SECTION 176. Section 41-18-120 of the 1976 Code is amended
to read:
"Section 41-18-120. The commissioner
director may promulgate regulations consistent with this
chapter guarding against personal injuries in the assembly,
disassembly, and use of amusement devices at carnivals, fairs, and
amusement parks to persons employed at or to persons attending the
carnivals, fairs, and amusement parks and regarding enforcement of
any other provision of this chapter. The commissioner
director shall promulgate regulations to charge and collect
reasonable fees for permits and for inspections and any other
activity under the provisions of this chapter as considered necessary
by the commissioner director for the proper
enforcement of the provisions of this chapter. Fees may be set by
regulation not more than once each year."
SECTION 177. Section 41-18-130 of the 1976 Code is amended
to read:
"Section 41-18-130. The commissioner
director is charged with the affirmative duty of
administering and enforcing the provisions of this chapter."
SECTION 178. Section 41-18-150 of the 1976 Code, as last
amended by Act 144 of 1993, is further amended to read:
"Section 41-18-150. 1. Any person who knowingly and
wilfully operates an amusement device without:
(a) the permit required by Sections 41-18-50 and 41-18-60;
or
(b) the inspections required by Sections 41-18-70 and
41-18-80; or
(c) the insurance required by Section 41-18-90; or
(d) complying with any other provision of this chapter or
regulation promulgated hereunder;
is subject to a civil penalty not to exceed two thousand dollars per
device for each day such noncompliance under any of these items
(a), (b), (c), or (d) of this subsection 1 continues.
2. Any person who operates an amusement device without:
(a) the permit required by Sections 41-18-50 and 41-18-60;
or
(b) the inspections required by Sections 41-18-70 and
41-18-80; or
(c) the insurance required by Section 41-18-90; or
(d) complying with any other provision of this chapter or
regulation promulgated hereunder;
is subject to a civil penalty not to exceed two thousand dollars for
each day such noncompliance under any of these items (a), (b), (c),
or (d) of this subsection 2 continues.
3. The commissioner director may assess the
penalties under this section and, in assessing penalties under
subsection 1 of this section, shall give due consideration to
the appropriateness of the penalty with respect to the size of the
owner's or lessee's business, the good faith of the owner or lessee,
and his history of previous violation.
4. Revenue derived under this chapter must be remitted to the
State Treasurer and deposited by him in the general fund."
SECTION 179. Section 41-21-20 of the 1976 Code, as last
amended by Act 248 of 1991, is further amended to read:
"Section 41-21-20. There is hereby created within
the South Carolina Department Division of Labor,
the Division Subdivision of Apprenticeship to
administer the South Carolina Voluntary Apprenticeship Act. The
Division Subdivision shall must be
governed by an Apprenticeship Council composed of three
employers and three employees appointed by the Governor upon the
advice and consent of the Senate and, in addition, the
Commissioner of Labor Director of the Department of
Labor, Licensing, and Regulation or his designee, who shall
serve ex officio. The Commissioner of Labor
director shall serve as chairman of the council. The
Director of the State Commission for Technical Education and the
State Director of Vocational Education shall serve as ex officio
nonvoting members of the Council. The terms of office of the
members of the Apprenticeship Council first appointed by the
Governor shall expire as designated by the Governor at the
time of making the appointment; one representative each of
employers and employees shall must be appointed
for one year; one representative each of employers and employees
shall must be appointed for two years; and one
representative each of employers and employees shall
must be appointed for three years. Thereafter
After that time, each member shall must be
appointed for a term of three years and until his successor is
appointed and qualifies. Vacancies shall must be
filed for the unexpired term in the manner of original appointment.
Each member of the council, not otherwise compensated by public
funds, shall receive per diem, subsistence, and mileage as
provided by law for state boards, committees, and
commissions for his services when attending to official duties or
assignments when funds provided by federal grants are available for
this purpose."
SECTION 180. Section 41-21-30 of the 1976 Code is amended
to read:
"Section 41-21-30. The Apprenticeship Council shall
meet at the call of the Commissioner of Labor Director
of the Department of Labor, Licensing, and Regulation or his
designee and shall formulate policies for the effective
administration of this chapter. The Apprenticeship Council shall
establish standards for apprentice agreements, shall issue
such rules and regulations as may be necessary to carry out
the intent and purpose of this chapter, and shall perform
such other functions as the Commissioner
director may direct."
SECTION 181. Section 41-21-40 of the 1976 Code is amended
to read:
"Section 41-21-40. The Commissioner of Labor
director, with the advice and guidance of the
Apprenticeship Council, is authorized to:
(1) administer the provisions of this chapter;
(2) in cooperation with the Apprenticeship Council and
local apprenticeship committees, to set up conditions and training
standards for apprentice agreements, which conditions or standards
shall must be in no case lower than those prescribed
by this chapter;. The State Apprenticeship Council
shall approve any apprentice agreement which meets the standards
established under this chapter;
(3) to terminate or cancel any apprentice agreement in
accordance with the provisions of such the
agreement;
(4) to keep a record of apprentice agreements and their
disposition;
(5) to issue certificates of completion of
apprenticeship; and
(6) to perform such other duties as are
necessary to carry out the intent of this chapter, including other
on-job training necessary for emergency and critical civilian
production; provided, that. However, the
administration and supervision of related and supplemental
instruction for apprentices, coordination of instruction with job
experiences, and the selection and training of teachers and
coordinators for such instruction shall be are
the responsibility of the appropriate educational agencies."
SECTION 182. Section 41-21-70 of the 1976 Code is amended
to read:
"Section 41-21-70. Every apprentice agreement entered
into under this chapter shall must contain:
(1) the names of the contracting parties;
(2) the date of birth of the apprentice;
(3) a statement of the trade, craft, or business which the
apprentice is to be taught, and the time at which the
apprenticeship will begin and end;
(4) a statement showing the number of hours to be spent by the
apprentice in work and the number of hours to be spent in related
and supplemental instruction, which instruction shall
must be not less than one hundred forty-four hours
per a year; provided, that.
However, in no case shall may the
combined weekly hours of work and of required related and
supplemental instruction of the apprentice exceed the maximum
number of hours of work prescribed by law for a person of the age
and sex of the apprentice;
(5) a statement setting forth a schedule of the processes in the
trade or industry division in which the apprentice is to be taught
and the approximate time to be spent at each process;
(6) a statement of the graduated scale of wages to be paid the
apprentice and whether the required school time shall
must be compensated; provided,. However,
the apprentice shall receive compensation which shall
must not be less than the minimum wage prescribed by the
Federal Fair Labor Standards Act;
(7) a statement providing for a period of probation of not more
than five hundred hours of employment and instruction extending
over not more than four months, during which time the apprentice
agreement shall must be terminated by the
Commissioner director at the request in writing of
either party, and providing that after such the
probationary period the apprenticeship agreement may be terminated
by mutual agreement of all parties thereto, to it or
canceled for good and sufficient reason. The council, at the request
of an apprentice committee, may lengthen the period of probation;
(8) a provision that all controversies or differences concerning
the apprentice agreement which cannot be adjusted locally
shall must be submitted to the council for
determination;
(9) a provision that an employer who is unable to fill his
obligation under the apprentice agreement may, with the
approval of the Commissioner director,
may transfer such the contract to any other
employer; provided, that. However, the
apprentice consents shall consent and that
such the other employer agrees shall
agree to assume the obligations of the apprentice agreement;
(10) Such the additional terms and conditions as
may be prescribed or approved by the Commissioner
director, not inconsistent with the provisions of this
chapter."
SECTION 183. Section 41-21-80 of the 1976 Code is amended
to read:
"Section 41-21-80. No apprentice agreement under this
chapter shall be is effective until approved by the
Commissioner director. Every apprentice
agreement shall must be signed by the
employer, or by an association of employers or an
organization of employees and by the apprentice and, if the
apprentice is a minor, by the minor's father; provided,
that. However, if the father be
is dead or legally incapable of giving consent, then
it must be signed by the guardian of the minor. Where a
minor enters into an apprentice agreement under this chapter for a
period of training extending into his majority, the apprentice
agreement shall is likewise be binding for
such a the period as may be covered during
the apprentice's majority."
SECTION 184. Section 41-21-90 of the 1976 Code is amended
to read:
"Section 41-21-90. For the purpose of providing greater
diversity of training or continuity of employment, any apprentice
agreement made under this chapter may, in the discretion of the
Apprenticeship Council, be signed by an association of employers
or organization of employees instead of by an individual employer.
In such case, the apprentice agreement shall expressly provide that
the association of employers or organization of employees does not
assume the obligation of an employer but agrees to use its best
endeavors to procure employment and training for such apprentice
with one or more employers who will accept full responsibility, as
herein provided, for all the terms and conditions of employment and
training set forth in the agreement between the apprentice and
employer association or employee organization during the period of
each such employment. The apprentice agreement in such a case
shall also expressly provide for the transfer of the apprentice,
subject to the approval of the Commissioner
director, to such employer who shall sign a written
agreement with the apprentice and, if the apprentice is a minor,
with his parent or guardian, contracting to employ the apprentice
for the whole or a definite part of the total period of apprenticeship
under the terms and conditions of employment and training set forth
in the agreement entered into between the apprentice and employer
association or employee organization."
SECTION 185. Section 41-21-100 of the 1976 Code is amended
to read:
"Section 41-21-100. Nothing in this chapter or in any
apprentice agreement approved under this chapter shall operate
to invalidate invalidates any apprenticeship provision in
any collective agreement between employers and employees, setting
up higher apprenticeship standards; provided, that.
However, none of the terms or provisions of this chapter
shall apply to any person or craft unless, until and
only so long as such the person or craft voluntarily
elects that the terms and provisions of this chapter shall
apply. Provided, further, No person whether presently
employed or seeking employment shall, in any manner,
may be forced or coerced into entering into any
apprenticeship training program provided for under this chapter.
Any person violating the provisions of this section shall be
is guilty of a misdemeanor and, upon conviction, shall
be subject to a fine of must be fined one hundred
dollars. Each day's violation shall constitute
constitutes a separate offense. Any person or craft
terminating an apprenticeship agreement shall notify the
Commissioner of Labor director."
SECTION 186. Section 41-25-110 of the 1976 Code is amended
to read:
"Section 41-25-110. The provisions of this chapter may be
enforced by any state agency having jurisdiction and authority to
enforce this chapter, including, but not limited to:
(a) Secretary of State;
(b) Department Division of Labor of the
Department of Labor, Licensing, and Regulation;
(c) Attorney General;
(d) Department of Consumer Affairs;
(e) South Carolina State Law Enforcement
Division;
(f) Circuit solicitors;
(g) Local law enforcement agencies;
(h) Any person who has been damaged by or has knowledge
of any violation of the provisions of this chapter."
SECTION 187. The first paragraph of Section 41-43-40 of the
1976 Code, as last amended by Act 248 of 1991, is further
amended to read:
"The Governor shall appoint, upon the advice and consent
of the Senate, one director from each congressional district and one
from the State at large, who serves as chairman. Directors must
have experience in the fields of business, commerce, finance,
banking, real estate, or foreign trade. At least two directors must
have direct commercial lending experience. The Governor and the
Chairman Secretary of the State Development
Board Commerce shall serve ex officio and may
designate persons to represent them at meetings of the
authority."
SECTION 188. The last paragraph of Section 41-43-190(A) of
the 1976 Code is amended to read:
"In developing and implementing the programs described in
this section, the authority may consider the advice and counsel of
the Governor's Export Advisory Committee, created by executive
order as an adjunct to the Division of State Development
of the Department of Commerce Board or
any a successor thereto to it, and
allocate available resources in a manner as will ensure that priority
consideration is given to the needs of small and medium size
businesses."
SECTION 189. Section 41-44-90 of the 1976 Code, as last
amended by Act 505 of 1990, is further amended to read:
"Section 41-44-90. To receive the credit provided by this
chapter, a taxpayer shall:
(1) claim the credit on the taxpayer's annual state income or
premium tax return in the manner prescribed by the appropriate
commission department; and
(2) file with the appropriate commission
department and with the taxpayer's annual state income or
premium tax return a copy of the form issued by the corporation as
to the qualified investment by the taxpayer, which includes an
undertaking by the taxpayer to report to the appropriate
commission department any redemption of the
qualified investment within the meaning of Section 41-44-80."
SECTION 190. Section 42-5-60 of the 1976 Code is amended
to read:
"Section 42-5-60. Every policy for the insurance of the
compensation provided in this title or against liability therefor
shall be deemed to be made is subject to provisions of
this title. No corporation, association, or organization
shall may enter into any such a
policy of insurance unless its form shall have has
been approved by the Chief Insurance Commissioner of South
Carolina the Department of Insurance or his
designee."
SECTION 191. Section 43-1-115 of the 1976 Code, as added
by Act 101 of 1993, is amended to read:
"Section 43-1-115. The State Department shall conduct,
at least once every two years, a detailed performance audit, which
must include, but is not limited to, the child protective services and
foster care programs of every local county office. The department
shall use a sample size that will ensure the results of the audit to be
within a ninety percent confidence level. The department shall
prepare a full and detailed report of its findings and include any
proposals to rectify any deficiencies noted. The State Department
shall submit, within ninety calendar days of the completion of the
county performance audit review, a copy of its final report to the
Governor, Lieutenant Governor, members of the respective county
legislative delegations, the Joint Legislative Committee on Children
and Families, and the County Advisory Board of Social
Services. The final and all draft audit reports are public
information and upon request must be provided to any
a member of the public within the time period set forth by
the Freedom of Information Act. As public information, the State
Department also shall also submit two copies of the
final report to the State Library and one copy of the final report to
any a public library within the county reviewed.
The failure of the State Department to conduct the required biennial
performance audits of any a county office is considered
nonfeasance in office by the State Commission director
of the department, is cause for the commissioner's
director's removal, and subjects the commissioner
director to the penalties for nonfeasance."
SECTION 192. Section 43-5-150 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 43-5-150. In the event an application is denied
or the amount or terms of a grant or of any withdrawal or
modification thereof be deemed inadequate or unjust by the
applicant or recipient, the applicant or recipient or anyone acting in
his behalf may demand a review of his case before the department
by filing his written request for such review with the county
department not more than sixty days after notice of its action shall
have been received. The county department shall, within ten days,
certify its records and data on the case and such additional
information as it deems considers relevant to the
department. The department shall promptly grant to the applicant
or recipient an opportunity for a fair hearing upon the questions
raised by the applicant or recipient. At this hearing any party in
interest may appear and present any relevant facts. The department
shall produce such further evidence as it may deem
consider necessary and shall certify its findings and
decision on the case back to the county department concerned.
Appeals from the decision of the department may be made to an
administrative hearing examiner administrative law
judge pursuant to the Administrative Procedures Act."
SECTION 193. Section 43-7-410 (B) and (C) of the 1976 Code
are amended to read:
"(B) "Commission" means the State Health
and Human Services Finance Commission. `Department'
means the South Carolina Department of Health and Human
Services, unless the context clearly indicates otherwise.
(C) `Medicaid' means the medical assistance program authorized
by Title XIX of the Social Security Act and administered by the
State Health and Human Services Finance Commission
South Carolina Department of Health and Human
Services."
SECTION 194. Section 43-7-420 of the 1976 Code is amended
to read:
"Section 43-7-420. (A) Every The
applicant or recipient, only to the extent of the amount of the
medical assistance paid by Medicaid, shall be is
deemed considered to have assigned his rights to
recover such amounts so paid by Medicaid from
any a third party or private insurer to the State
Health and Human Services Finance Commission
department. This assignment shall does not
include rights to Medicare benefits. The applicant or recipient shall
cooperate fully with the State Health and Human Services
Finance Commission department in its efforts to
enforce its assignment rights.
(B) An The applicant's and recipient's
determination of, and continued eligibility for, medical assistance
under Medicaid is contingent upon his cooperation with the
Commission department in its efforts to enforce its
assignment rights. Cooperation includes, but is not limited to,
reimbursing the Commission department from
proceeds or payments received by the applicant or recipient from
any a third party or private insurer.
(C) Every The applicant or recipient is
considered to have authorized all persons, including insurance
companies and providers of medical care, to release to the
Commission department all information needed to
enforce the assignment rights of the Commission
department."
SECTION 195. Section 43-7-430 of the 1976 Code is amended
to read:
"Section 43-7-430. (A) The State Health and Human
Services Finance Commission department shall
be is automatically subrogated, only to the extent of the
amount of medical assistance paid by Medicaid, to the rights
an the applicant or recipient may have to recover
such amounts so paid by Medicaid from any
a third party or private insurer. The applicant or recipient
shall cooperate fully with the State Health and Human Services
Finance Commission department and shall do nothing
after medical assistance is provided to prejudice the subrogation
rights of the State Health and Human Services Finance
Commission department.
(B) An The applicant's and recipient's
determination of, and continued eligibility for, medical assistance
under Medicaid is contingent upon his cooperation with the
Commission department in its efforts to enforce its
subrogation rights. Cooperation includes, but is not limited to,
reimbursing the Commission department from
proceeds or payments received by the recipient from any
a third party or private insurer.
(C) Every The applicant or recipient is
considered to have authorized all persons, including insurance
companies and providers of medical care, to release to the
Commission department all information needed to
enforce the subrogation rights of the Commission
department."
SECTION 196. Section 43-7-440 of the 1976 Code, as last
amended by Act 481 of 1994, is further amended to read:
"Section 43-7-440. (A) Commission The
department, to enforce its assignment or subrogation rights,
may take any one, or any combination of, the following actions:
(1) intervene or join in an action or proceeding brought by
the applicant or recipient against any a third party,
or private insurer, in state or federal court.;
(2) commence and prosecute legal proceedings against
any a third party or private insurer who may be
liable to any applicant or recipient in state or federal court, either
alone or in conjunction with the applicant or recipient, his guardian,
personal representative of his estate, dependents, or survivors;
(3) commence and prosecute legal proceedings against
any a third party or private insurer who may be
liable to an applicant or recipient, or his guardian, personal
representative of his estate, dependents, or survivors;
(4) commence and prosecute legal proceedings against any
applicant or recipient;
(5) settle and compromise any an amount due
to the State Health and Human Services Finance
Commission department under its assignment and
subrogation rights. Provided, further, any A
representative or an attorney retained by an applicant or
recipient shall is not be considered liable to
State Health and Human Services Finance Commission
the department for improper settlement,
compromise, or disbursement of funds unless he has
written notice of State Health and Human Services Finance
Commission's the department's assignment and
subrogation rights prior to before disbursement of
funds;
(6) reduce any amount due to the State Health and Human
Services Finance Commission department by
twenty-five percent if the applicant or recipient has retained an
attorney to pursue the applicant's or recipient's claim against a third
party or private insurer, that amount to represent the State
Health and Human Services Finance Commission's
department's share of attorney's fees paid by the applicant
or recipient. Additionally, the State Health and Human Services
Finance Commission department may, in its
discretion, may share in other costs of litigation by
reducing the amount due it by a percentage of those costs, the
percentage calculated by dividing the amount due the State
Health and Human Services Finance Commission
department by the total settlement received from the third
party or private insurer. Provided, further, any A
representative or an attorney retained by an
the applicant or recipient shall is not
be considered liable to State Health and Human Services
Finance Commission the department for improper
settlement, compromise, or disbursement of funds unless he has
written notice by certified mail of State Health and Human
Services Finance Commission's the department's
assignment and subrogation rights prior to before
disbursement of funds.
(B) Providers and practitioners who participate in the Medicaid
program shall cooperate with the Commission
department in the identification of third parties whom they
have reason to believe may be liable to pay all or part of the
medical costs of the injury, disease, or disability of an
the applicant or recipient.
(C) Any provision in the contract of a private insurer issued or
renewed after June 11, 1986, which denies or reduces benefits
because of the eligibility of the insured to receive assistance under
Medicaid, is null and void.
In enrolling a person or in making payments for benefits to a
person or on behalf of a person, no private insurer may take into
account that the person is eligible for or is provided medical
assistance under a State Plan for Medical Assistance pursuant to
Title XIX of the Social Security Act.
(D) The assignment and subrogation rights of the
Commission department are superior to any right of
reimbursement, subrogation, or indemnity of any a
third party or recipient. Provided, further, any A
representative or an attorney retained by an
the applicant or recipient shall is not
be considered liable to State Health and Human Services
Finance Commission the department for improper
settlement, compromise, or disbursement of funds unless he has
written notice of State Health and Human Services Finance
Commission's the department's assignment and
subrogation rights prior to before disbursement of
funds.
In a case where a third party has a legal liability to make
payments for medical assistance to or on behalf of a person, to the
extent that payment has been made under a State Plan for Medical
Assistance pursuant to Title XIX of the Social Security Act for
health care items or services furnished to the person, the State is
considered to have acquired the rights of the person to payment by
any other party for the health care items or services."
SECTION 197. Section 43-21-130 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 43-21-130. (A) There is created the
Long-Term Care Human Services Coordinating Council (council)
composed of the following voting members:
(1) the Governor or his designee;
(2) the Director of the Department of Social Services;
(3) the Director of the Department of Health and
Environmental Control;
(4) the Director of the Department of Mental Health;
(5) the Director of the Department of Disabilities and
Special Needs;
(6) the Director of the Division on Aging;
(7) the Director of the Department of Health and Human
Services;
(8) the Chairman of the Joint Legislative Health Care
Planning and Oversight Committee, or his designee;
(9) the Chairman of the Joint Legislative Committee on
Aging, or his designee;
(10) one representative of each of the following groups
appointed by the Governor annually:
(a) long-term care providers;
(b) long-term care consumers;
(c) persons in the insurance industry developing or
marketing a long-term care product.
(B) Each director serving as a council member may
authorize in writing a designee to vote on his behalf at two
meetings a year. Members appointed by the Governor to represent
private groups serve without compensation.
(C) The council shall meet at least quarterly, provide
for its own officers, and make an annual report to the General
Assembly before January second each year. This report must
include new council recommendations. (A) The
General Assembly finds that the operation of health and human
services may be enhanced by closer working relationships among
agencies at the state and local level. The General Assembly finds
that coordination at both levels provides opportunities to serve the
citizens of South Carolina better through (1) continued expansion of
services integration and (2) stronger communication among agencies
delivering services.
In order to assist in, recommend, develop policy for, and
supervise the expenditure of funds for the continuation of service
integration in South Carolina, there is created a Human Services
Coordinating Council, hereinafter, entitled the council. The council
shall consist of:
(1) the chairperson of the boards of the following agencies:
Division on Aging, Department of Alcohol and Other Drug Abuse
Services, Commission for the Blind, Division of Foster Care,
Department of Education, Department of Health and Environmental
Control, Department of Health and Human Services, Division of
Veterans' Affairs, John De La Howe School, Department of Mental
Health, Department of Disabilities and Special Needs, School for
the Deaf and the Blind, Department of Social Services, Department
of Vocational Rehabilitation, Guardian ad Litem Program, Division
of Continuum of Care, Educational Television, Wil Lou Gray
Opportunity School, Probation, Parole and Pardon Services, and the
State Housing Finance and Development Authority.;
These chairpersons shall receive the usual mileage, subsistence,
and per diem provided by law for members of committees, boards,
and commissions. Mileage, subsistence, and per diem must be paid
from the approved accounts of their respective boards or
commissions;
(2) the Director or Chief Executive Officer of each of the
following: Division on Aging, Department of Alcohol and Other
Drug Abuse Services, Commission for the Blind, Division of Foster
Care, Department of Education, Department of Health and
Environmental Control, Department of Health and Human Services,
Department of Juvenile Justice, Division of Veterans' Affairs, John
De La Howe School, Department of Mental Health, Department of
Disabilities and Special Needs, School for the Deaf and the Blind,
Department of Social Services, Department of Vocational
Rehabilitation, Guardian ad Litem Program, Division of Continuum
of Care, Educational Television, Wil Lou Gray Opportunity School,
Department of Corrections, Probation, Parole and Pardon Services,
and the State Housing Finance and Development Authority;
(3) the Governor or his designee;
(4) other such members as the council shall deem appropriate.
(B) The council shall:
(1) select a board chairperson, director or chief executive
officer on an annual basis to serve as the council chairperson;
(2) meet regularly to provide an opportunity for collaboration
and cooperation among member agencies.
(C) The council shall have as its goals:
(1) identify and address priority health and human needs and
promote the availability of responsive resources;
(2) promote cost-effective, efficient approaches for the
delivery of health and human services which include prevention,
education, reduction of dependency, promotion of self-sufficiency,
and delivery of services in the least restrictive, most appropriate
community-based and institutional settings;
(3) provide coordination between the council members and
the Department of Health and Human Services in the development
of the comprehensive State Health and Human Services Plan;
(4) in cooperation with the Department of Health and Human
Services, coordinate and oversee efforts to integrate services
information among state agencies and between state and local
agencies;
(5) review and monitor service integration efforts begun by
the Human Services Integration Projects, and including:
(a) developing standards for case management activities
and coordinating with local entities on service integration efforts,
and
(b) receiving requests for funding of projects designed to
further integrate services, including review and approval of such
projects.
(D) Member agencies and departments of the council shall
collect and provide client information, including Social Security
number, for the Client Masterfile System, and for development and
use of a uniform client application database for statistical purposes
and for improving human services delivery systems for South
Carolinians. For purposes of this subsection, the State, rather than
an individual agency, will be the owner of the data. All individual
client information submitted by participating agencies or
departments will be regarded as confidential; the information
collected may not be released, under any circumstances, to entities
or individuals outside the Client Masterfile System, State Data
Oversight Council, or client application database unless release is
made of aggregate statistical information so that no individual client
may be identified. No data submitted may be released by the Client
Masterfile System except in a format approved by the council. For
the purposes of this subsection only, all state laws, regulations, or
any rule of any state agency, department, board, or commission
having the effect or force of law that prohibits or is inconsistent
with any provision of this subsection is hereby declared inapplicable
to this subsection.
Each member agency or department of the council shall be
required to take all steps reasonably necessary to effectuate the
waiver of federal rules, regulations, or statutes or the elimination of
other factors that interfere with collection or use of data by the
Client Masterfile System or client application database. Those steps
shall include, but not be limited to, the seeking of federal
legislation, the negotiation of agreements between the council or
State and any federal agency or board, the application for the
waiver of any federal rule, regulation or statute, and the seeking of
clients' permission to share data.
(E) Effective July 1, 1995, the Human Services Coordinating
Council shall assume the duties and responsibilities of the Aging
Coordinating Council and the Long Term Care Council as specified
in Sections 43-21-120 through 43-21-140. The council shall
establish a long term care standing committee and include on the
committee a representative of the long term care industry, a
representative of the insurance industry, and a representative of the
general public."
SECTION 198. Section 43-35-310 (A)(2) of the 1976 Code, as
added by Act 110 of 1993, is amended to read:
"(2) these members who shall serve ex officio:
(a) Attorney General or a designee;
(b) Board of Long Term Health Care Administrators,
Executive Director, or a designee;
(c) State Board of Nursing for South Carolina, Executive
Director, or a designee;
(d) Commission Division on Aging in the
Office of the Governor, Executive Director, or a
designee;
(e) Criminal Justice Academy, Executive
Department of Public Safety Director, or a designee;
(f) South Carolina Department of Health and Environmental
Control, Commissioner, or a designee;
(g) State Department of Mental Health, Commissioner
Director, or a designee;
(h) South Carolina Department of Mental Retardation
Disabilities and Special Needs, Commissioner
Director, or a designee;
(i) Adult Protective Services Program, Director, or a
designee;
(j) Department of Health and Human Services
Finance Commission, Executive Director, or a
designee;
(k) Joint Legislative Committee on Aging, Chair, or a
designee;
(l) Police Chiefs' Association, President, or a designee;
(m) Prosecution Coordination Commission, Executive
Director, or a designee;
(n) South Carolina Protection and Advocacy System for the
Handicapped, Inc., Executive Director, or a designee;
(o) South Carolina Sheriff's Association, Executive Director,
or a designee;
(p) South Carolina State Law Enforcement
Division, Chief, or a designee;
(q) Long Term Care Ombudsman or a designee;
(r) South Carolina Medical Association, Executive Director,
or a designee;
(s) South Carolina Health Care Association, Executive
Director, or a designee;
(t) South Carolina Home Care Association, Executive
Director, or a designee."
SECTION 199. Section 44-1-50 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 44-1-50. The board may conduct such
hearings as may be required by law, as considered necessary
by the board, and as necessary to hear appeals from decisions of
administrative law judges pursuant to Chapter 23 of Title 1. The
board does not have the authority to hear appeals from decisions of
the Coastal Zone Management Appellate Panel or the Mining
Council. Such appeals Appeals from the decisions of the
Coastal Zone Management Appellate Council or the Mining
Council shall must be conducted pursuant to
the provisions in Chapter Chapters 20 and
30 39 of Title 48.
The board shall provide for the administrative organization of the
department and shall consolidate and merge existing duties,
functions, and officers of the former agencies as may be necessary
for economic and efficient administration. Provided,
However, that the board may appoint such advisory
boards as it considers necessary to carry out the functions of
Sections 44-1-10 to 44-1-70, and there shall must
be provided a compensation for their services as provided by
the law for members of boards and commissions."
SECTION 200. The introductory portion of Section 44-2-75(C)
of the 1976 Code, as last amended by Act 181 of 1993, is further
amended to read:
"(C) The Department of Insurance may disapprove an
application for the formation of an insurance pool and may suspend
or withdraw approval whenever he the Department of
Insurance finds that the applicant or pool:"
SECTION 201. Section 44-6-5(4) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(4) `Market basket index' means the index used by the
federal government on January 1, 1986, to measure the inflation in
hospital input prices for Medicare reimbursement. If that measure
ceases to be calculated in the same manner, the market basket index
must be developed and regulations must be promulgated by the
commission department using substantially the same
methodology as the federal market basket uses on January 1, 1986.
Prior to Before submitting the regulations
concerning the index to the General Assembly for approval pursuant
to the Administrative Procedures Act, the department shall submit
them to the Health Care Planning and Oversight Committee for
review."
SECTION 202. Section 44-6-140(A)(2) of the 1976 Code, as
last amended by Act 181 of 1993, is further amended to read:
"(2) payment on a timely basis to the hospital by the
commission department or patient, or both,
of the maximum allowable payment amount determined by the
commission department; and"
SECTION 203. Section 44-6-146(A) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(A) Every fiscal year the State Treasurer shall withhold
from the portion of the Local Government Fund allotted to the
counties a sum equal to fifty cents per capita based on the
population of the several counties as shown by the latest official
census of the United States. The money withheld by the State
Treasurer must be placed to the credit of the commission
department and used to provide Title XIX (Medicaid)
services."
SECTION 204. Section 44-6-170(A)(14) of the 1976 Code, as
last amended by Act 181 of 1993, is further amended to read:
"(14) the executive director or his designee of the
State Department of Health and Human Services
Finance Commission;"
SECTION 205. Section 44-6-520 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 44-6-520. No provision of this article limits
the right of an owner to sell, lease, or mortgage any
a nursing home subject to receivership under this article
upon the owner's presenting satisfactory evidence to the court that:
(1) compliance with the applicable requirements of the
Department of Health and Human Services has been achieved; or
(2) the purchaser lessee, or mortgagor has assumed the
responsibility for achieving such compliance and has filed
an acceptable plan of correction with the commission
Department of Health and Human Services. Upon sale of
the nursing home, the receivership must be terminated."
SECTION 206. Section 44-6-540 of the 1976 Code, as added
by Act 449 of 1990, is amended to read:
"Section 44-6-540. The commission
Department of Health and Human Services is authorized to
promulgate regulations, pursuant to the Administrative Procedures
Act, to administer this article."
SECTION 207. Section 44-6-720(B)(4)(b)(iv) and (5) of the
1976 Code, as added by Section 74, Part II, Act 164 of 1993, are
amended to read:
"(iv) other deductions provided in regulations of the
State Department of Health and Human Services
Finance Commission;
(5) upon the death of the beneficiary, a remainder interest in
the corpus of the trust passes to the State Department
of Health and Human Services Finance Commission.
The commission department shall remit the state
share of the trust to the general fund; and"
SECTION 208. Section 44-6-730 of the 1976 Code, as added
by Section 74, Part II, Act 164 of 1993, is amended to read:
"Section 44-6-730. The State Department
of Health and Human Services Finance Commission
shall promulgate regulations as are necessary for the
implementation of this article and as are necessary to
comply with federal law. In addition, the commission
department shall amend the state Medicaid plan in a
manner that is consistent with this article."
SECTION 209. Section 44-7-90 of the 1976 Code, as added by
Act 184 of 1987, is amended to read:
"Section 44-7-90. (A) Based on reports from the State
Health and Human Services Finance Commission South
Carolina Department of Health and Human Services the
department Department of Health and Environmental
Control shall determine each nursing home's compliance with
its Medicaid nursing home permit. Violations of this article
include:
(1) a nursing home exceeding by more than ten percent the
number of Medicaid patient days stated in its permit;
(2) a nursing home failing to provide at least ten percent
fewer days than the number stated in its permit;
(3) the provisions of any Medicaid patient days by a home
without a Medicaid nursing home permit.
(B) Each Medicaid patient day above or below the allowable
range is considered a separate violation. The department
Department of Health and Environmental Control may levy
a fine not to exceed the average rate per for each
Medicaid patient day times each violation. Appeals from this action
must comply with the appropriate provisions of Chapter 23 of Title
1."
SECTION 210. Section 44-7-170(B) of the 1976 Code, as last
amended by Act 511 of 1992, is further amended to read:
"(B) The Certificate of Need provisions of this article do
not apply to:
(1) an expenditure by or on behalf of a health care facility for
nonmedical projects for services such as refinancing existing debt,
parking garages, laundries, roof replacements, computer systems,
telephone systems, heating and air conditioning systems, upgrading
facilities which do not involve additional square feet or additional
health services, replacement of like equipment with similar
capabilities, or similar projects as described in regulations;
(2) facilities owned and operated by the State Department of
Mental Health and the South Carolina Department of Mental
Retardation Disabilities and Special Needs, except an
addition of one or more beds to the total number of beds of the
departments' health care facilities existing on July 1, 1988;
(3) educational and penal institutions maintaining infirmaries
for the exclusive use of their respective student bodies and inmate
populations;
(4) any federal health care facility sponsored and operated by
this State;
(5) community-based housing designed to promote
independent living for persons with mental or physical disabilities.
This does not include a facility defined in this article as a `health
care facility'."
SECTION 211. Section 44-23-10(9) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(9) `Director' means the Director of the Department of
Mental Health, except when used as provided in item
(8)."
SECTION 212. Section 44-38-380(A)(1)(i) of the 1976 Code,
as last amended by Act 181 of 1993, is further amended to read:
"(i) Executive Director of the South
Carolina State Department of Health and Human
Services Finance Commission;"
SECTION 213. Section 44-40-60 of the 1976 Code is amended
to read:
"Section 44-40-60. With the cooperation of the
Department of Health and Environmental Control and the
Department Division of Veterans Affairs in the
Office of the Governor, the council:
(1) shall make an annual report to the General Assembly
containing:
(a) a comprehensive review and summary analysis of the
scientific literature on the effects of exposure to chemical agents,
including Agent Orange;
(b) a summary of the activities undertaken to inform and
assist veterans who may have been exposed to chemical agents,
including Agent Orange;
(c) a description and interpretation of the results of any study
undertaken pursuant to this chapter;
(d) other comments or recommendations the council considers
appropriate.
(2) may hold hearings consistent with the purposes of this
chapter. To assist it in carrying out these functions, the council
may contract for an evaluation of the performance of the
Department of Health and Environmental Control and the
Department Division of Veterans Affairs in
implementing this chapter and may contract for the compilation and
editing of the annual report."
SECTION 214. Section 44-53-480(a)(1) and (2) of the 1976
Code are amended to read:
"(1) Assist the Commission on Department
of Alcohol and Other Drug Abuse Services in
the exchange of information between itself and governmental and
local law-enforcement officials concerning illicit traffic in and use
and abuse of controlled substances.
(2) Assist the Commission Department of Alcohol and
Other Drug Abuse Services in planning and coordinating
training programs on law enforcement for controlled substances at
the local and state level."
SECTION 215. Section 44-53-490 of the 1976 Code is amended
to read:
"Section 44-53-490. The Department of Health and
Environmental Control shall designate persons holding a degree in
pharmacy to serve as drug inspectors. Such These
inspectors shall, from time to time, but no less than once
every three years, shall inspect all practitioners and
registrants who manufacture, dispense, or distribute controlled
substances, including those persons exempt from registration but
who are otherwise permitted to keep controlled substances for
specific purposes. The drug inspector shall submit an annual report
by the first day of each year to the Department
department and a copy to the Commission on
Department of Alcohol and Other Drug Abuse
Services specifying the name of the practitioner or the
registrant or such the exempt persons inspected, the
date of inspection and any other violations of this article.
The department may employ other persons as agents and assistant
inspectors to aid in the enforcement of those duties delegated to the
department by this article."
SECTION 216. Section 44-53-500(b)(2) of the 1976 Code is
amended to read:
"(2) When so authorized by an administrative
inspection warrant issued pursuant to this section, an
officer or employee designated by the Commission on
Department of Alcohol and Other Drug Abuse
Services, upon presenting the warrant and appropriate
credentials to the owner, operator, or agent in charge, may enter
controlled premises for the purpose of conducting an administrative
inspection."
SECTION 217. Section 44-53-720(a) of the 1976 Code is
amended to read:
"(a) To use in treatment, maintenance or detoxification
programs in the State Department of Mental Health facilities or
programs approved by the South Carolina Commission on Alcohol
and Drug Abuse and licensed by the South Carolina Department of
Mental Health."
SECTION 218. Section 48-9-30 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended by adding an
appropriately numbered item to read:
"( ) `State Land Resources and Conservation Districts
Advisory Council' or `advisory council' means the body created
pursuant to Section 48-9-215."
SECTION 219. Article 3, Chapter 9, Title 48 of the 1976 Code
is amended by adding:
"Section 48-9-215. (A) The State Land Resources and
Conservation Districts Advisory Council is established consisting of
the five commissioners provided for in Section 48-9-225. The
council members must be appointed by the Governor for four years
on the recommendation of the executive committee of the South
Carolina Association of Soil and Water Conservation District
Commissioners and serve until their successors are appointed and
qualify. Vacancies must be filled in the manner of the original
appointment for the unexpired term. A member may not succeed
himself after he has served one full four-year term.
(B) The Governor shall name the chairman of the advisory
council. A majority of the advisory council constitutes a quorum,
and the concurrence of a majority in a matter within the council's
duties is required for the matter's determination.
(C) The members of the advisory council may receive no
compensation for their services on the council but may receive
expenses, including travel expenses, necessarily incurred in the
discharge of their duties on the council.
(D) The council shall advise the department and the division on
standards, rules, regulations, or other matters related to land
resources and conservation districts.
Section 48-9-225. For the purpose of selecting the five soil and
water conservation district commissioners to serve as members of
the advisory council, the State is divided into the following five
areas: (1) Area 1: Abbeville, Anderson, Cherokee, Greenville,
Laurens, Oconee, Pickens, Spartanburg, and Union counties;
(2) Area 2: Aiken, Calhoun, Edgefield, Greenwood,
Lexington, McCormick, Newberry, Richland, and Saluda counties;
(3) Area 3: Chester, Chesterfield, Darlington, Fairfield,
Kershaw, Lancaster, Lee, Marlboro, and York counties;
(4) Area 4: Berkeley, Clarendon, Dillon, Florence,
Georgetown, Horry, Marion, Sumter, and Williamsburg counties;
(5) Area 5: Allendale, Bamberg, Barnwell, Beaufort,
Charleston, Colleton, Dorchester, Hampton, Jasper, and Orangeburg
counties."
SECTION 220. Section 48-9-610 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 48-9-610. If the department shall
determine board determines that the operation of the
proposed district within the defined boundaries is administratively
practicable and feasible it shall appoint two commissioners to act
with the three commissioners elected as provided in Article 11 of
this chapter as the governing body of the district."
SECTION 221. Section 48-9-1210 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 48-9-1210. The two commissioners appointed by
the board shall, upon the recommendation of the
advisory council, must be persons who are by training
and experience are qualified to perform the specialized
skilled services which will be required of them in the
performance of their duties under this chapter."
SECTION 222. Section 48-9-1230 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 48-9-1230. Except as otherwise provided in
Section 48-9-1220, the term of office of each commissioner is four
years, except that in newly created districts the elected
commissioners' terms of office are until the next regular election is
held under the provisions of Section 48-9-1220 and the first
appointed commissioners must be designated to serve for terms of
one and two years, respectively, from the date of their
appointment. A commissioner shall hold holds
office until his successor has been is elected or
appointed and has qualified. Vacancies must be filled for
the unexpired term. The selection of successors to fill an unexpired
term, or for a full term, must be made in the same manner in which
the retiring commissioners shall, respectively, have
been are selected, except that in the case
of. However, for a vacancy in the unexpired
term of an elected commissioner, a successor may be
appointed by the board upon the recommendation of the
advisory council and upon the unanimous recommendation of
the remaining commissioners of the district. Any
A commissioner may be removed by the board after
consultation with the advisory council upon notice and hearing
for neglect of duty or malfeasance in office, but for no other
reason."
SECTION 223. Section 48-9-1820 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 48-9-1820. Members of the board
advisory council and the commissioners of the district
shall be are ineligible to appointment as members of
the board of adjustment during their tenure of such
the other office. The members of the board of
adjustment shall receive compensation for their services at a
per diem rate to be determined by the department for time spent on
the work of the board, in addition to expenses, including traveling
expenses, necessarily incurred in the discharge of their duties. The
commissioners shall pay the necessary administrative and other
expenses of operation incurred by the board of adjustment
upon the certificate of the chairman of the board."
SECTION 224. Section 48-9-1840 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 48-9-1840. A land occupier may file a petition
with the board of adjustment alleging that there are great
practical difficulties or unnecessary hardships in the way of his
carrying out upon his lands the strict letter of the land-use
regulations prescribed by ordinance approved by the commissioners
and praying the board to authorize a variance from the terms of the
land-use regulations in the application of such the
regulations to the lands occupied by the petitioner. Copies of
such the petition shall must be
served by the petitioner upon the chairman of the commissioners of
the district within which his lands are located and upon the director
of the department."
SECTION 225. Section 48-9-1850 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 48-9-1850. The board of adjustment shall
fix a time for the hearing of the petition and cause due notice of
such the hearing to be given. The commissioners
of the district and the department may appear and be heard at
such the hearing. Any An occupier
of lands lying within the district who shall object
objects to the authorizing of the variance prayed for may
intervene and become a party to the proceedings. Any
A party to the hearing before the board of
adjustment may appear in person, by agent, or by
attorney. If, upon the facts presented at such the
hearing, the board shall determine that determines
there are great practical difficulties or unnecessary hardships in the
way of applying the strict letter of any of the land-use regulations
upon the lands of the petitioner, it shall make and record
such the determination and shall make and record
findings of fact as to the specific conditions which establish
such the great practical difficulties or unnecessary
hardships. Upon the basis of such the findings and
determination, the board of adjustment may
by order may authorize such the variance
from the terms of the land-use regulations, in their application to
the lands of the petitioner, as will relieve such the
great practical difficulties or unnecessary hardships and will not be
contrary to the public interest and such that so the
spirit of the land-use regulations shall be is
observed, the public health, safety and welfare secured, and
substantial justice done."
SECTION 226. Section 48-39-150(D) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(D) Any applicant having a permit denied or any person
adversely affected by the granting of the permit has the right to
a hearing conducted by an administrative law judge pursuant to
Sections 1-23-600 and 1-23-610. A party aggrieved by a decision
of an administrative law judge has the right of direct appeal
from the decision of the Administrative Law Judge
administrative law judge to the Coastal Zone Management
Appellate Panel pursuant to Sections 1-23-600 and 1-23-610. A
party aggrieved by a final decision of the Coastal Zone
Management Appellate Panel is entitled to judicial review of that
decision by the circuit court under the provisions of Section
1-23-610(A). For the purposes of this chapter, the final decision of
the Coastal Zone Management Appellate Panel is the final decision
of the board of the Department of Health and Environment.
Any applicant having a permit denied may challenge the validity of
any or all reasons given for denial."
SECTION 227. Section 48-39-210 of the 1976 Code, as last
amended by Acts 127 and 181 of 1993, is further amended to read:
"Section 48-39-210. (A) The department is the only state
agency with authority to permit or deny any alteration or utilization
within the critical area except for the exemptions granted under
Section 48-39-130(D), and the application for a permit
must be acted upon within the time prescribed by this chapter.
(B) A critical area delineation for coastal waters or tidelands
established by the department is valid only if the line is depicted on
a survey performed by a professional surveyor, the line is reviewed
by the department, the department validates the location of the
boundaries of the coastal waters or tidelands critical area on the
survey by affixing a stamp and date to the survey, and the survey
contains clearly on its face in bold type the following statement:
`The area shown on this plat is a general representation of
Coastal Council Department of Health and
Environmental Control (department) permit authority on the
subject property. Critical areas by their nature are dynamic and
subject to change over time. By generally delineating the permit
authority of the Coastal Council department, the
Coastal Council department in no way waives its
right to assert permit jurisdiction at any time in any critical area on
the subject property, whether shown hereon or not.'
(C) Notwithstanding any other provision of this chapter, a
critical area line established pursuant to subsection (B) that affects
subdivided residential lots expires after three years from the
department date on the survey described in subsection (B). For
purposes of this section only, a critical area delineation existing on
the effective date of this act is valid until December 31, 1993.
(D) Exceptions to subsection (C) are eroding coastal stream
banks where it can be expected that the line will move due to the
meandering of the stream before the expiration of the three-year
time limit and where manmade alterations change the critical area
line."
SECTION 228. Section 48-39-280(A)(4) and (E) of the 1976
Code, as last amended by Act 181 of 1993, are further amended to
read:
"(4) Notwithstanding any other provision of this section,
where a department-approved beach nourishment project has been
completed, the local government or the landowners, with notice to
the local government, may petition an Administrative Law
Judge the department to move the baseline as far
seaward as the landward edge of the erosion control structure or
device or, if there is no existing erosion control structure or device,
then as far seaward as the post project baseline as determined by
the department in accordance with Section 48-39-280(A)(1) by
showing that the beach has been stabilized by department-approved
beach nourishment. If the petitioner is asking that the baseline be
moved seaward pursuant to this section, he must show an ongoing
commitment to renourishment which will stabilize and maintain the
dry sand beach at all stages of the tide for the foreseeable future. If
the Administrative Law Judge department grants the
petition to move the baseline seaward pursuant to this section, no
new construction may occur in the area between the former baseline
and the new baseline for three years after the initial beach
nourishment project has been completed as determined by the
department. If the beach nourishment fails to stabilize the beach
after a reasonable period of time, the department must move the
baseline landward to the primary oceanfront sand dune as
determined pursuant to items (1), (2), and (3) for that section of the
beach. Any appeal of an Administrative Law Judge's
the department's decision under this section may be made
to the Coastal Zone Management Appellate Panel
pursuant to Section 48-39-150(D).
(E) A landowner claiming ownership of property affected who
feels that the final or revised setback line, baseline, or erosion rate
as adopted is in error, upon submittal of substantiating evidence,
must be granted a review of the setback line, baseline, or erosion
rate, or a review of all three pursuant to Section
48-39-150(D). The requests must be forwarded to the
Coastal Zone Management Appellate Panel and handled in
accordance with the department's regulations on appeals."
SECTION 229. Section 48-39-290(D) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(D) Special permits:
(1) If an applicant requests a permit to build or rebuild a
structure other than an erosion control structure or device seaward
of the baseline that is not allowed otherwise pursuant to Sections
48-39-250 through 48-39-360, the department may issue a special
permit to the applicant authorizing the construction or
reconstruction if the structure is not constructed or reconstructed on
a primary oceanfront sand dune or on the active beach,
and, if the beach erodes to the extent the permitted structure
becomes situated on the active beach, the permittee agrees to
remove the structure from the active beach if the department orders
the removal. However, the use of the property authorized under
this provision, in the determination of the department, must not be
detrimental to the public health, safety, or welfare.
(2) The department's Permitting Committee is the
committee to consider applications for special permits.
(3)(2) In granting a special permit, the
committee department may impose reasonable
additional conditions and safeguards as, in its judgment, will fulfill
the purposes of Sections 48-39-250 through 48-39-360.
(4)(3) A party aggrieved by the
committee's department's decision to grant or deny
a special permit application may appeal to the full Coastal Zone
Management Appellate Panel the decision pursuant to
Section 48-39-150(D)."
SECTION 230. Section 48-49-70 of the 1976 Code is amended
to read:
"Section 48-49-70. (a)(A) The
Department of Parks, Recreation and Tourism Natural
Resources shall identify the protected mountain ridge crests in
each county by showing them on a map or drawing, describing
them in a document, or any combination thereof. These maps,
drawings, or documents shall identify the protected mountain ridges
as defined in Section 48-49-30 and such other mountain ridges as
any county may request, and shall specify those protected mountain
ridges that serve as all or part of the boundary line between two
counties. By January 1, 1985, the map, drawing, or document
tentatively identifying the protected mountain ridge crests of each
county must be filed with the governing body of that county, with
the municipal governing body of each municipality that requests it,
and with the register of mesne conveyances or the clerk of court in
the county where the land lies, and made available for inspection at
the Department's offices in Columbia.
(b)(B) Determinations by the Department of
elevations under this section are conclusive in the absence of
fraud."
SECTION 231. Section 49-1-15 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 49-1-15. (A) Except as otherwise provided
herein, no person may erect, construct, or build any structure or
works in order to dam or impound the waters of a navigable stream
or any waters which are tributary to a navigable stream for the
purpose of generating hydroelectricity without securing a permit
from the Department of Health and Environmental Control. Any
projects that are subject to Chapter 33 of Title 58 of the Utility
Facility Siting and Environmental Protection Act are exempted from
this section. Further exempted are projects where the project
developer without exercising condemnation authority is the existing
owner of the property upon which the project is to be constructed
and projects which do not exceed sixty acres including in both cases
inundated land.
(B) Except as otherwise provided herein, no person may
erect, construct, or build any structure or works in a navigable
stream without securing a permit from the Department of Health
and Environmental Control.
(C) The Department of Health and Environmental Control
may issue a permit for the projects in this subsection after a
thorough review of the proposed project and a finding that it meets
any regulations of the board department and the
following standards:
(1) The proposed project does not halt or prevent navigation
by watercraft of the type ordinarily frequenting the reach of the
watercourse in question.
(2) The projects proposed for shoaled areas of the
watercourse provide a means of portage or bypass of the project
structure.
(3) The need for the proposed project far outweighs the
historical and current uses of the stream in question.
(4) The impact of the proposed project will not threaten or
endanger plant or animal life. The proposed project will not
violate water quality standards for the watercourse in question.
(5) The recreational and aesthetic benefits or detriments
caused by the proposed project do not alter the watercourse or
damage riparian lands.
(C)(D) The Attorney General shall represent
before any federal agency the department, if so requested by the
department, respecting the same application."
SECTION 232. Chapter 3 of Title 49 of the 1976 Code is
amended by adding:
"Section 49-3-60. The department may negotiate
agreements, accords, or compacts on behalf of and in the name of
the State with other states or the United States, or both, with an
agency, department, or commission of either, or both, relating to
withdrawal, transfer, or diversion of water connected to waters of
this State or that impacts waters of the State or future supplies of
water. Prior to and as a part of any negotiation, the department
must consult and coordinate with the Department of Health and
Environmental Control and any other affected agency. Any
interstate compact made by the department is subject to approval by
joint resolution of the General Assembly. The department may
represent the State in connection with water withdrawals, transfers,
or diversions occurring in other states which may affect this
State."
SECTION 233. Section 49-7-70(20) of the 1976 Code is
amended to read:
"(20) To exercise the power of eminent domain for
any a corporate function. The power of eminent
domain may be exercised through any a procedure
prescribed by Chapter 5, Title 28, or by following the
procedure for the exercise of eminent domain by the State
Highway Department Department of Transportation,
prescribed by Article 3, Chapter 5, Title 57, as such
the statutes are now constituted or as they may
afterwards be constituted following any amendments
thereto."
SECTION 234. Section 50-3-90 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 50-3-90. The authorized agents of the department
may conduct game and fish cultural operations and scientific
investigations in such manner, places and at such times as are
considered necessary and may use whatever methods are deemed
advisable for sampling fish populations. Such operations and
investigations shall be conducted only at the request of and with the
permission from the board department, and no such
operations and investigations shall be made upon private lands and
waters except at the request of the owner or owners of such lands
and waters."
SECTION 235. Section 50-3-310 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 50-3-310. The director shall appoint the
enforcement officers of the Natural Resources Enforcement
Division, subject to their receiving a commission from the
Governor. An enforcement officer shall be issued a commission by
the Governor upon the recommendation of the director. An
enforcement officer may be removed by the board
director upon proof satisfactory to it the
director that he the enforcement officer is not
fit for the position." SECTION 236. Section 50-3-315(A)
of the 1976 Code, as last amended by Act 181 of 1993, is further
amended to read:
"Section 50-3-315. (A) The director may appoint deputy
enforcement officers to serve without pay and shall establish their
territorial jurisdiction. The officers, when acting in their official
capacity, may enforce all laws and regulations relating to
wildlife, marine, or natural resources fish and game,
trespass, and littering laws within their territorial jurisdiction.
The powers and duties of the officers must be established by
regulations of the department. Deputy enforcement officers serve at
the pleasure of the director. The Secretary of State shall transmit to
the director the commissions of all officers. The director shall
transmit each commission to the office of the clerk of court for the
county in which the officer resides only after he files the oaths and
bonds required by Section 50-3-330."
SECTION 237. Section 50-3-510 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 50-3-510. The department may, subject
to the provisions of this article, may contract for the
selective cutting and sale of timber on any lands held by the
department on behalf of its Wildlife and Freshwater Fish
Fisheries Division. No contract for such
the cutting and sale shall may be entered
into and no timber shall may be cut or sold unless
the board decides that the cutting and sale of such
the timber is for the best interests of the department and
the improvement of its lands, by reason of thinning the timber,
harvesting the over-age trees, and improving general
forestry conditions. Prior to Before selling or
cutting any such the timber the matter shall
must be submitted to the State Forester, who shall
investigate the propriety of making such the cutting
and shall have the timber cruised and an estimate of the value
made. If the State Forester finds that the sale is not in keeping with
good forestry practices or will adversely will affect
the remainder of the timber, the sale shall must not
be made."
SECTION 238. Section 50-5-20 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 50-5-20. The department shall have jurisdiction
over all salt-water fish, fishing and fisheries, all fish, fishing and
fisheries in all tidal waters of the State and all fish, fishing and
fisheries in all waters of the State whereupon a tax or license is
levied for use for commercial purposes. This includes the
following: All shellfish, crustaceans, diamond-back terrapin, sea
turtles, porpoises, shad, sturgeon, herring and all other migratory
fish except rock fish (striped bass)."
SECTION 239. Section 50-5-110 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 50-5-110. The department may adopt and
promulgate rules and regulations for the government of the
force under its control and for the control of fisheries, not contrary
to or inconsistent with the laws and policy of the State, having the
force and effect of law, and may provide penalties for violation
thereof of the regulations not to exceed forfeiture of
license or privilege previously granted by the Division
department."
SECTION 240. Section 50-7-10 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 50-7-10. In pursuance of Article III of the
Atlantic States Marine Fisheries Compact, of which this State is a
signatory, there shall be three members, hereinafter called Compact
Commissioners, of the Atlantic States Marine Fisheries
Commission, hereinafter called the Compact Commission, from this
State. The first Compact Commissioner from this State shall be the
Director of the department or his designee, ex officio, and
the term of any such ex officio Commissioner shall terminate at the
time he ceases to hold such office and his successor as Compact
Commissioner shall be his successor as Director of the department.
The second Compact Commissioner from this State shall be a
legislator and member of the Commission on Interstate Cooperation
of this State, ex officio, designated by the Commission on Interstate
Cooperation, and the term of any such ex officio Commissioner
shall terminate at the time he ceases to hold such legislative
position or such position as Commissioner on Interstate
Cooperation, and his successor as Compact Commissioner shall be
named in like manner. The Governor, by and with the advice and
consent of the Senate, shall appoint a citizen as a third Compact
Commissioner, who shall have a knowledge of and interest in the
marine fisheries problem. The term of such Compact
Commissioner shall be three years and he shall hold office until his
successor shall be appointed and qualified. Vacancies occurring in
the office of such commissioner from any reason or cause shall be
filled by appointment by the Governor, by and with the advice and
consent of the Senate, for the unexpired term. The director of the
department as ex officio commissioner may delegate, from time to
time, to any deputy or other subordinate in his department or office,
the power to be present and participate, including voting as his
representative or substitute, at any meeting of or hearing by or other
proceeding of the Compact Commission. The terms of each of the
initial three members shall begin at the date of the appointment of
the appointive Compact Commissioner, provided the compact shall
then have gone into effect in accordance with Article II thereof and
otherwise shall begin upon the date upon which the compact shall
become effective in accordance with Article II.
Any commissioner may be removed from office by the Governor
upon charges and after a hearing, but opportunity to be heard shall
be given."
SECTION 241. Section 50-9-70 of the 1976 Code, as added by
Act 94 of 1993, is amended to read:
"Section 50-9-70. The South Carolina Wildlife and
Marine Resources Department of Natural Resources
shall establish programs in instruction on the safe use of firearms
and archery tackle for hunting and hunter responsibility. The
programs must include, but are not limited to, the selection,
training, and certification of instructors, appropriate course materials
and content, and criteria for successful course completion. The
department shall authorize the issuance of a certificate of
completion to persons successfully completing the course."
SECTION 242. Section 50-9-470 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 50-9-470. In lieu of obtaining a regular annual
nonresident fishing license provided for by Section 50-9-460, a
nonresident of this State may procure a temporary nonresident
license for the purpose of fishing for game fish or other fish in this
State. The temporary license authorizes the licensee to fish in any
of the waters of this State for a period of seven specified
consecutive days, in accordance with other regulations provided by
law, and the license is valid for the period specified. The fee for
the license is eleven dollars. Of this amount one dollar may be
retained by the agent selling a license, and the balance must be
remitted by the agent to the department and deposited in the
State Treasury to the State Treasurer in the game
protection fund. The department, at the end of each calendar year,
shall credit the Santee-Cooper funds with an amount equal to the
sum collected during the calendar year 1956 from the temporary
license then in effect for those waters. If there is a general decline
in revenue from all sources of the Wildlife and Freshwater
Fish Fisheries Division of the department, the
amount credited may be reduced by the same percentage of the
decline."
SECTION 243. Section 50-17-320 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 50-17-320. (A) If the State authorizes any
activity or use requiring the permanent closure of shellfish grounds,
the portion of a permitted area which falls within the closed area
may be removed from the permit acreage agreement by the
board department. If a portion of the acreage is
removed, the permit acreage agreement and annual fee must be
adjusted on the annual renewal date as prescribed in Section
50-17-336.
(B) If a state or federal permit is issued over the objections of
the department, or for a project of overriding public need, and if the
permitted project causes the closure of any shellfish grounds or
renders any bottoms unsuitable for the purpose of shellfish
propagation, the department may require the permittee to mitigate
or compensate, or both, for the loss of the public shellfish resource.
The compensation must be remitted to the department and placed
in a special fund for shellfish management.
Compensation and mitigation under authority of this section may
not be considered as factors in justifying the issuance of any such
permit and this section may not be interpreted as authorizing the
closure of any shellfish grounds or authorizing the rendering of any
bottoms unsuitable for shellfish propagation.
If an unauthorized action results in a closure of shellfishing
waters or renders them temporarily or permanently unsuitable for
the purpose of shellfish propagation, the party responsible for the
action may be required by the department to mitigate the loss of the
resource and to compensate for damages which result from the loss
of the shellfish resource.
(C) The terms of the mitigation or compensation authorized by
subsection (B) and the amount of the award of damages must be
determined in the first instance by the board
department. Its determination constitutes a final decision
for the purpose of Section 1-23-380, and the affected party may
seek judicial review pursuant to the decision."
SECTION 244. The first paragraph of Section 50-17-365 of the
1976 Code, as last amended by Act 181 of 1993, is further
amended to read:
"Section 50-17-365. It is unlawful for any person to
remove, take, or harvest any shellfish, as defined in Section
50-5-10, from the coastal waters and bottoms of the State from May
fifteenth to September fifteenth, inclusive. The board
department has the authority to open or close any area of
state waters or bottoms for the removal, taking, or harvesting of
shellfish for specified periods at any time during the year when
biological and other conditions warrant the action. Nothing in this
article may be construed to alter the authority of the Department of
Health and Environmental Control to open and close shellfish
grounds for public health reasons."
SECTION 245. Section 50-17-730 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 50-17-730. (A) As used in this section:
(1) `Peeler crab' means a blue crab (Callinectes sapidus),
having a new soft shell fully developed under the hard shell and
having a definite white, pink, or red line or rim on the outer edge
of the back fin or flipper.
(2) `Soft shell crab' means a peeler crab which has
recently has shed its hard shell.
(B) Notwithstanding the provisions of Section
50-17-720, any a person engaged in the catching,
taking, or transporting of peeler crabs or in shedding peeler crabs
for the purpose of producing soft shell crabs is required to have a
valid permit or identification card issued by the department.
(C) Permits under this section must be issued only to
bona fide dealers engaged in shedding peeler crabs and in
possession of a valid license as provided in Section 50-17-180. The
permits must be are in addition to any other
licenses and permits required by law. The fee for each permit is
seventy-five dollars annually for the license period beginning July
first. Identification cards may be issued to a permit holder under
this section to be used by persons employed by him to catch and
transport peeler crabs to his shedding operation.
(D) The department has authority to inspect the
business premises of any a person engaged in
shedding peeler crabs.
(E) On each permit issued under this section the
department has the authority to specify:
(a)(1) the area from which peeler crabs may be
caught or taken by gear other than crab pots;
(b)(2) the types of gear or fishing equipment
which may be used to take peeler crabs;
(c)(3) catch reporting requirements;
(d)(4) boat identification requirements;
(e)(5) any other provisions the
department considers necessary to carry out the provisions
of this section.
(F) Any A person violating the
provisions of this section or any of the permit conditions of
the Marine Resources Division of the department is guilty of
a misdemeanor and, upon conviction, must be fined two hundred
dollars or imprisoned thirty days. Upon conviction for a second
offense, any permits issued under this section must be
suspended for thirty days. Any A boat, with its
equipment and rigging found engaged in the taking of peeler crabs
after the permits have been suspended, must be confiscated and,
upon conviction, must be sold as prescribed in Section
50-17-650."
SECTION 246. Title 50 of the 1976 Code is amended by
adding:
"CHAPTER 27
Heritage Trust Program
Section 50-27-10. The following words or phrases have the
definition given unless clearly specified otherwise:
1. `Board of the department' means the governing board of the
Department of Natural Resources.
2. `Department' means the Department of Natural Resources.
3. `Advisory board' means the Heritage Trust Advisory Board.
4. `Natural area' means an area of land or water, or a
combination thereof, generally, but not necessarily, large in size.
Such an area may be in public or private ownership and shall
contain relatively undisturbed ecosystems, landforms, threatened,
endangered, or unique plant life or animal habitats, or other unusual
or outstanding scientific, educational, aesthetic, or recreational
characteristics.
5. `Natural feature' means an area of land or water, or a
combination thereof, which is generally, but not necessarily, small
in size. Such area may be in public or private ownership and shall
contain or consist of outstanding remnants or natural elements of
surviving undisturbed natural ecosystems such as record size
individual species of plant life, nests or rookeries, geological
formations, or objects of special scientific, educational, aesthetic, or
recreational character.
6. `Cultural area or feature' means an area or feature which
provides an outstanding example of our historical or archeological
heritage. Such an area or feature shall be a site of special historic
interest or contain outstanding remnants or elements of the way of
life and significant events of our past so that through their
preservation and the restoration of related existing structures, or the
development of a historic area, as well as through study,
investigation and examination of the material remains in that life, a
record may be preserved of the interrelationship and effect between
man's activities and his surrounding environment. A cultural area
or feature may be one that is either publicly or privately owned.
7. `Heritage Preserve' means a natural or cultural area or
feature which is `dedicated' under this chapter.
8. `Heritage Site' means a natural or cultural feature which has
been recognized as such through `registration' under this chapter.
9. `Dedicate or dedication' means the process by which any
natural or cultural area or feature shall be established as a Heritage
Preserve in accordance with the procedures set out in Section
50-27-80. Dedication may result from either of the following
methods, but no power of eminent domain is hereby conferred or
granted to the board of the department, the advisory board, or the
department under this chapter:
(a) `Acquisition' means the establishment of a Heritage
Preserve whereby the owner of a natural or cultural area or feature
transfers the fee simple interest therein to the board of the
department for such purpose; or
(b) `Acceptance' means the establishment of a Heritage
Preserve whereby the owner of a natural or cultural area or feature
transfers less than the fee simple interest therein to the board of the
department for such purpose. Examples are granting of a
`conservation or open space easement' or the transfer of title subject
to a life estate or reverter. Interests in real estate of a term of years
shall not qualify for dedication under this chapter.
10. `Register' or `registration' means the process by which the
owner of a natural or cultural feature shall enter into a written
agreement with the board of the department recognizing the unique
and outstanding characteristics thereof in accordance with the
procedures set out in Section 50-27-100.
11. `Priority areas and features list' means the list made up of
those areas and features recommended by the advisory board, and
approved by the board of the department, under this chapter whose
preservation is of primary importance to the goals and purposes of
this chapter and which are, therefore, eligible to be included as
Heritage Preserves and Sites.
12. `The Heritage Trust Program' means the entire system
established under this chapter to provide for the inventorying,
preservation, use and management of unique and outstanding natural
or cultural areas and features in this State. The term `Heritage
Trust' means the legal trust which is created under Section
50-27-90.
Section 50-27-20. The General Assembly finds that as a part of
the continuing growth of the population and the development of the
economy of the State it is necessary and desirable that portions of
the state's rich natural and cultural diversity be set aside as Heritage
Preserves and Sites and protected for the benefit of present and
future generations, for once disturbed they cannot be wholly
restored. Such areas and features are irreplaceable as laboratories
for scientific research; as reservoirs of natural materials for which
the value and usefulness thereof is not yet fully known; as habitats
for rare and vanishing species; and as living museums where people
may observe natural biotic and environmental systems and as areas
for study and enjoyment as examples of the lands, structures and
related artifacts which represent significant parts of our historical
and cultural heritage.
While a number of independent and differing efforts, both private
as well as governmental, have been initiated to protect some of
these assets, a coordinated and concerted program is needed in
order to avoid duplication among these and other valuable activities
and to ensure the maximum conservation of these resources through
the establishment of a more effective and adequate official legal
mechanism for identifying, recognizing, and protecting such areas
for their outstanding characteristics. While the preservation of all
of these assets in their natural state is both impractical and often not
necessarily in the total best interest of the State and the public, they
exist in limited and decreasing quantities. The time is now for a
decision to be made as to which of these areas and sites deserve
increased protection and for selecting the most appropriate means
for doing so.
It is therefore the public policy of this State to secure for the
people, both present and future generations, the benefits of an
enduring resource of natural and cultural areas and features by
establishing a system of Heritage Preserves and Sites; protecting
this system; gathering and disseminating information regarding it;
establishing and maintaining a listing of Heritage Preserves and
Sites; and otherwise encouraging and assisting in the preservation of
natural and cultural areas and features of this State.
Section 50-27-30. The Heritage Trust Program is created to
achieve the following goals by protecting lands and making them
available to state agencies, educational institutions, and public and
private groups for the following purposes:
1 For research in such fields as archeology, agriculture,
conservation, ecology, forestry, genetics, geology, history,
paleontology, pharmacology, soil science, taxonomy, and similar
fields by governmental employees, educational and scientific groups
as well as by private individuals.
2. For the teaching of archeology, biology, conservation,
ecology, geology, history, natural history, and other subjects.
3. As habitats and places for maintaining plant and animal
species in communities.
4. As reservoirs of natural and cultural materials.
5. As places of natural and cultural interests and beauty
whereby through visitation the public may observe, value, and enjoy
natural and cultural processes and events. Unique recreational
opportunities of a type not generally available through the existing
State Park System may be provided, including outdoor sporting
usage such as hunting and fishing as well as aesthetics, where
wholly compatible and consistent with the character of the area or
feature.
6. As benchmarks against which to measure such processes or
events as well as the environmental degradation from natural and
unnatural influences.
7. To promote the understanding and appreciation of the
aesthetic, cultural, and scientific values of such areas and features
by the people of the State.
8. For the preservation and protection of Heritage Preserves
and Sites against modification or encroachment resulting from
occupation, development, or other uses which would destroy their
natural and cultural character.
9. As places for maintaining representative lands and related
structures which illustrate periods, events, styles, and uses of the
land in our state's historic and cultural heritage.
Section 50-27-40. The board of the department shall have the
following duties, responsibilities, and powers under this chapter:
1. To serve as trustee of the trust created under this chapter
and to carry out the powers, duties, and responsibilities thereunder;
2. To supervise the establishment, updating and maintenance of
a statewide inventory of the natural and cultural resources and the
maintenance of a list of those areas and features selected or
established under this chapter as priority areas and features or as
Heritage Preserves and Sites;
3. To select from the recommendations of the advisory board
those natural and cultural features, the preservation of which is of
primary importance to the goals and purposes of this chapter, and to
classify such as priority areas and features;
4. To select from the recommendations of the advisory board
those priority areas and features which should be dedicated or
recognized as Heritage Preserves or Sites, and thereafter to establish
as such through dedication or recognition;
5. To select from the recommendations of the advisory board
those Heritage Preserves, interests therein or portions thereof,
deserving of protection under the Heritage Trust and thereafter to
transfer same into the corpus of the trust.
6. To conduct public hearings on the question of whether any
particular natural or cultural area or feature should be established as
a Heritage Preserve or Site, or on the uses or nonuses which shall
apply to any area dedicated under the Heritage Trust Program;
7. To manage or provide for the management of Heritage
Preserves through the promulgation of rules and regulations
designed to preserve the primary natural character of such areas or
features and to provide the maximum public usage thereof which is
compatible and consistent with the character of the area.
Management duties and responsibilities may be assigned to any
governmental or private group, with its consent, with respect to any
particular Heritage Preserve;
8. To cooperate with and to enter into agreement with other
state, federal, county, and local units of government as well as
private groups for the promotion of the purposes of this chapter
including the carrying out of other requirements under federal and
state law.
9. To report annually to the Governor and to the General
Assembly as to the activities of the Heritage Trust Program and its
future plans, and to make any specific recommendations which it
feels, if implemented, would assist in achieving the goals and
purposes of this chapter.
Section 50-27-50. The Heritage Trust Advisory Board is hereby
created to assist the board of the department in carrying out its
duties and responsibilities under this chapter. The advisory board
shall consist of seventeen members who shall be chosen as follows
and shall elect from its membership a chairman:
1. From the general public, six persons, one from each
congressional district within the State, who shall be appointed by
the Governor and serve for a term of six years. Of these six, four
persons shall be from the scientific community who are recognized
and qualified experts in the ecology of natural areas, and two
persons shall be from the cultural community who are recognized
and qualified experts in the history and archeology of the State.
The term `expert' does not of necessity denote a professional but
one learned and interested in the field.
2. From state government, the following persons or their
designees:
A. The Chairman of the board of the Department of Natural
Resources;
B. The Director of the Department of Natural Resources;
C. The Director of the South Carolina Department of Parks,
Recreation and Tourism;
D. The Director of the Department of Environmental
Control;
E. The Director of the South Carolina Department of
Archives and History;
F. The State Forester;
G. The State Archeologist;
H. The Director of the State Museum; and
I. The Director of the Department Secretary
of Commerce.
Provided, however, of the initial appointees under this section,
that of the six persons appointed under Item 1 above, two shall
serve for a term of two years, two for a term of four years, and two
for a term of six years.
Section 50-27-60. The Heritage Trust Advisory Board shall
have the following powers and duties:
1. To review the inventories prepared and submitted by the
department and other state agencies as well as other appropriate
sources of information and to recommend therefrom to the board of
the department the selection of those areas and features as priority
areas and features that it deems considers to be of
primary importance to the goals and purposes of this chapter.
2. To evaluate, review and examine proposals of the
department and other state agencies as well as citizen
recommendations for the dedication or recognition of specific areas
and features as Heritage Trust Preserves and Sites, and from its
expertise to recommend to the board of the department the
dedication or recognition of such areas and features which it feels
proper.
3. To recommend to the board of the department any rules,
regulations, management criteria, allowable uses and such which the
advisory board feels would be beneficial to carrying out the goals
and purposes of this chapter.
4. To appoint technical committees consisting of experts in
specialty areas dealing with the ecology, history, and archeology of
our State and any other type committees that the advisory board
feels can be of assistance in fulfilling its duties and responsibilities
under this chapter.
5. To assist in maintaining a list of areas and sites which
through dedication become Heritage Trust Preserves or Sites and to
make public information regarding their location, management,
regulation, and permissible public uses and the like.
6. To authorize research and investigation for inventory and
assessment purposes, including the reasonable right of entry and
inspection, and to disseminate information and recommendations
pertaining to natural and related cultural areas and features.
Section 50-27-70. The department shall act as the basic staff for
the board of the department and the advisory board and shall have
the following powers and duties:
1. The director shall select a member of his staff who shall be
primarily responsible for the administration of the Heritage Trust
Program.
2. The department shall supply such other staff and support
services as the board of the department and the advisory board
require to fulfill their duties and responsibilities under this chapter.
3. The department shall maintain a public record of any
inventories or lists established under this chapter.
4. The department shall work with owners, both public and
private, in the development of proposals for the dedication and
recognition of natural and cultural areas and features as Heritage
Preserves and Sites, and it shall keep the advisory board informed
of the same in order that therefrom the advisory board may make
recommendations to the board of the department as provided under
this chapter.
5. The department shall consult with and work in cooperation
with the Department of Archives and History, the State
Archeologist, the Department of Parks, Recreation and Tourism and
any other state, county, or local unit of government, or any private
entity, or group which is or should be directly involved in the
Heritage Trust Program as well as in any particular efforts to
preserve or protect any specific area or feature under the provisions
of this chapter. In all cases, the department shall attempt to avoid
duplication of effort with other agencies and groups and shall have
no mandatory authority hereunder to require action by any such
body.
Section 50-27-80. Upon recommendation of the advisory board
and approval by the board of the department, any area or feature on
the `Priority Areas and Features List' may be established as a
Heritage Preserve through the process of dedication. In addition to
the transfer of either the fee simple interest or a lesser interest
therein such as an open space easement, the owner of any such area
or feature must enter into a written `Dedication Agreement' with
the department whereby any restrictions, conditions, permissive and
nonpermissive uses of the area or feature involved are clearly
stated. Once the necessary deed, easement or the like has been filed
along with the `Dedication Agreement' in the real estate records for
the county in which the area or feature is located, the process of
dedication shall be complete and a Heritage Preserve shall have
formally been established.
No area or feature of primarily cultural significance or character
shall be dedicated unless the Archives and History Commission
approves thereof. The following restrictions shall apply to all
Heritage Preserves:
1. The primary dedication as a Heritage Preserve shall be to
preserve and protect the natural or cultural character of any area or
feature so established. The board of the department and its agents
shall in all cases maintain the essential character of any area or
feature dedicated, and as such they are hereby declared to be at
their highest, best and most important use for the public benefit.
No Heritage Preserve shall be taken for any other public purpose
unless the approval of both the board of the department and the
Governor has been obtained. In no case shall any Heritage Preserve
be taken for any private use.
2. An acquisition by dedication shall be in perpetuity.
3. In any case where an area or feature is dedicated as a
Heritage Preserve through acceptance of less than the fee simple
interest therein, no management of such property shall be performed
by state agencies or their employees and no public funds shall be
utilized in the upkeep or general maintenance of such property;
provided, in the case where public usage of such area or feature is
compatible and consistent with the natural character of the property
and the owner is agreeable to allow such as defined under this
chapter, reasonable costs of maintenance and management may be
borne by the State.
4. No acquisition of any area or feature as a Heritage Preserve
shall be allowed whereby the department receives the fee simple
interest in the property while the grantor or transferor retains the
beneficial use or interests in the land except where total and
complete public usage of the area or feature as allowed under this
chapter is agreed to in the `Dedication Agreement'.
5. Within ninety days from the date of the completion of the
dedication process by which an area or feature is established as a
Heritage Preserve, or as soon thereafter as possible, the department
shall recommend a management plan for the area or feature
concerned. Such proposed plan shall include recommendations as
to the uses and nonuses to which the property should be put,
recommendations as to whether all or a part of the area or feature is
deserving of increased protection through inclusion in the Heritage
Trust, the projected cost of the management of the property, and
recommendations as to whether or not a user fee would be
appropriate. All state, federal, county, local, and private groups
interested in the area or feature involved shall be allowed to have
input into the proposed management plan. The plan shall be
considered by the advisory board, and therefrom the advisory board
shall propose to the board of the department an overall management
plan for the area or feature concerned. Upon approval by the board
of the department of a plan, the department or that agency or group
authorized by the board of the department shall manage the
Heritage Preserve in accordance therewith.
Section 50-27-90. There is hereby created the South Carolina
Heritage Trust, the trustee of which shall be the Board of the South
Carolina Department of Natural Resources. The corpus of the trust
shall be made up of those Heritage Preserves which the board of the
department considers to be of such outstanding and unique natural
or cultural character so as to be significant and essential to the
carrying out of the goals and purposes of this chapter and as such,
to merit a greater degree of preservation than that provided by
dedication. The board of the department shall have authority to
place into the corpus of the trust any Heritage Preserve that it feels
meets this criteria and which has been recommended for inclusion
therein by the advisory board. The beneficiaries of this trust are
and shall be the present and future generations of citizens of the
State, more particularly those present and future citizens residing
within a close proximity to any area or feature which itself, or an
interest therein, becomes, constitutes, or comprises a part of the
corpus of such trust and who actually enjoy use of such area or
feature; and further and more particularly, those present and future
students, teachers, and persons residing in the State who are
concerned with conservation or with research in any facet of
ecology, history, or archeology and who actually utilize any such
area or feature for the promotion of such interest.
Wherever the term `area or feature' is used in this section, it
shall include `or interests therein'. The following, except as
otherwise expressly provided, shall constitute substantive terms of
the trust and apply to any area or feature which becomes a part of
the corpus thereof:
1. Upon approval by the board of the department of the
inclusion of a Heritage Preserve in the corpus of the South Carolina
Heritage Trust, such transfer shall be recorded in the county in
which the property is located and shall establish conclusive proof
that such area or feature is suitable for preservation and protection
under this chapter and constitutes a part of the corpus of the South
Carolina Heritage Trust.
2. In any case wherein the previous owner of a Heritage
Preserve has restricted such area or feature from inclusion in the
South Carolina Heritage Trust, or where the previous owner has
withheld an interest therein such as a life estate or reverter, the
Heritage Preserve involved shall not be allowed to become a part of
the corpus of the South Carolina Heritage Trust unless at a
subsequent time such approval is obtained from such person or his
successor in interest.
3. Upon the approval by the board of the department of the
inclusion of any Heritage Preserve in the South Carolina Heritage
Trust and the transfer of the title or interest held by the board of the
department therein to the trust, subject to the provisions of Item 2
of this section, legal title to such area or feature shall be conveyed
to the trustee of the South Carolina Heritage Trust and the
equitable, or beneficial ownership, shall rest in those beneficiaries
previously stated and described, whether such property was owned
by a private or public source prior to dedication.
4. Upon approval by the advisory board, the department, the
board of the department, and any agency of the State is hereby
authorized to enter into agreement in advance with any person,
firm, corporation, legal entity of government, or any private group
that any particular area or feature shall be conveyed to the trustee in
trust under the provisions of this chapter.
5. Upon approval by the board of the department of inclusion
of any Heritage Preserve into the corpus of the South Carolina
Heritage Trust, the advisory board shall review the management
plan therefor as well as the `Dedication Agreement' and any other
sources of information which it may consider appropriate. Upon
approval thereof by the board of the department, the department, or
that agency or group assigned management responsibilities therefor,
shall manage the property in accordance therewith. Except to the
extent expressly otherwise provided in the `Dedication Agreement',
the following substantive terms shall be deemed to be set forth in
the conveyance to the Heritage Trust and the trustee shall hold such
property in trust subject to such terms:
(a) The essential natural character of the property shall be
maintained.
(b) There shall be no erection of any improvements thereon
except those minimal improvements necessary for the security,
safety, or convenience of the public and those required for
maintenance and management.
(c) Cutting or burning of timber, wood or other destruction
of flora or fauna shall be permitted only for conservation or
regeneration of flora or fauna; or for the control of plant succession
by deliberate manipulation for restoration of preservation of a
particular vegetation type or of an endangered species of flora,
fauna or wildlife; or for the establishment and maintenance of
nature and hiking trails, camping areas and the like where
compatible and consistent with the character of the area or feature
concerned and not seriously damaging or detrimental to the natural
quality of the property.
(d) No stream shall be dammed or have its course altered.
(e) No motorized vehicles shall be permitted on the property
other than those utilized by the trustee or its agents in management
and protection of the property or used by the general public for
ingress and egress to the property in compliance with the
management plan for the area or feature concerned.
(f) No change shall be made in the general topography of the
area or feature except for those minimal alterations which may be
necessary to provide on-foot access to the public for visitation, or
observation; and this shall be done only where wholly compatible
and consistent with the character of the property and where no
detrimental effect shall result.
(g) No activity shall be allowed or permitted which might
pollute any stream, body of water, or the atmosphere.
(h) No signs, billboards or other advertising of any kind shall
be erected; however, informational and directional signs related to
the designation of the area or feature as a Heritage Preserve and
related to the public's enjoyment thereof shall be allowed when
approved by the trustee.
(i) No other acts or uses which are detrimental to the
retention of the property in its natural state shall be allowed,
including those detrimental to flood control, drainage, water
conservation, erosion control or soil conservation, or fish or wildlife
habitat preservation.
(j) Where cultural areas or features are involved, reasonable
excavation, improvement and the like shall be allowed for research
purposes as well as to restore such area or feature.
(k) The trust shall continue in perpetuity.
(l) Nothing in this chapter shall be interpreted as restricting
the use of an existing or any future easement, express or implied, in
favor of any utility or other holder of an easement for public
purposes.
6. Those natural and related cultural areas and features which
are acquired as Heritage Preserves in accordance with the trust
provisions of this chapter are hereby declared to be as such at their
highest, best and most important use for the public benefit. The
State, any agencies thereof, local or county entities of government,
or public utility which has the power of condemnation by law may
acquire by purchase, gift, or eminent domain an easement or other
interest in any property comprising a part of the corpus of the
Heritage Trust; provided, however, that before any such
condemnation shall occur a court of competent jurisdiction shall
determine the following:
(1) there is an unavoidable and imperative public necessity
that the property or interest therein be taken for another public use;
(2) that there is no feasible and prudent alternative for the
proposed use for which the property or interest therein is to be
taken; and
(3) that the proposal for taking includes all possible planning
to minimize the harm done to such property resulting from such
proposed use. Where the court deems appropriate, a public hearing
shall be conducted prior to the court's decision to allow comment
and input thereto. No city, county, public district, agency of the
State, or public utility of the State shall acquire any real property
which is a part of the corpus of the Heritage Trust through
condemnation for the purpose of utilizing such property for another
public use unless the acquiring entity pays or transfers to the
Heritage Trust sufficient compensation to enable the operating
entity to replace the real property and facilities thereon. The trustee
of the trust shall have authority to utilize such proceeds to acquire
additional property for the trust and to maintain those properties
which form the corpus of the trust.
7. The common law of South Carolina pertaining to trusts shall
be applicable to the Heritage Trust and to all areas or features, or
interests therein, which become a part of this corpus. Without in
any way limiting the generality of the foregoing, such trusts shall
not fail for want of a trustee, and the trust shall be terminated as to
any particular area or feature, or interest therein, only upon total
failure of the intended purpose. Any substitution of the trustee or
termination of the trust as to any particular area or feature, or
interests therein, shall occur only after appropriate judicial action
wherein the beneficiaries are adequately represented, and such total
failure shall not in any way affect the remainder of the property
within the corpus of the trust.
8. The trustee shall hold, manage, preserve and enforce the
various areas and features, or interests therein, which become a part
of the corpus of the trust in accordance with the terms of this
chapter and in any respective conveyances and transfers thereto. To
that end the trustees may adopt and modify rules and regulations for
the use and enjoyment of such trust properties by the public, and
may employ or appoint agents to act on their behalf in the
management of such properties.
Section 50-27-100. In any case wherein a priority feature is
either unsuited or unavailable for acquisition as a Heritage Preserve,
the board of the department in agreement with the owner thereof
may recognize such for its importance by registering it as a
Heritage Site through the following registration procedures:
1. The department through its research and consultation with
the owners of properties selected as priority features shall notify the
advisory board of those which are unsuited or unavailable for
dedication but for which the owners have made application for
recognition as Heritage Sites through registration.
2. The advisory board shall review such applications and shall
recommend to the board of the department the approval of those
which it deems worthy of preservation through registration as
Heritage Sites.
3. From the advisory board's recommendations, the board of
the department shall approve those applications for recognition as
Heritage Sites which it deems deserving and appropriate for
carrying out the purposes of this chapter.
4. Upon approval of an application by the board of the
department, the department may enter into a written agreement of
registration with the owner of the feature concerned whereby the
State shall give public recognition of the importance of the area or
feature as a Heritage Site and the owner shall express his intent to
preserve it.
5. The department shall erect and maintain an appropriate sign
on the Heritage Site indicating its recognition and the owner thereof
shall be given a certificate acknowledging its registration.
6. The registration agreement may be terminated by the owner
or the board of the department at any time upon thirty days'
notification to the other party. Such termination shall remove the
feature from the Heritage Site Program, and any certificate
previously issued therefor or sign erected shall be returned to the
department by the property owner.
7. Unless the registration agreement is terminated, the owner of
a Heritage Site shall maintain its essential natural character.
Section 50-27-110. The department shall include those costs and
operating expenses necessary for the activities of the board of the
department and the advisory board as well as staff support to carry
out the provisions of this act in the annual State Appropriation Act.
Funding for management of areas and features which become
Heritage Preserves must be specifically requested by the department
or that entity of government responsible for management thereof.
The board of the department shall select those Heritage Preserves
for which it is appropriate to charge an individual user fee. The
department may sell such user permits for a cost not to exceed five
dollars and to be valid for the fiscal year in which issued at all
Heritage Preserves where a permit is required. At the end of the
fiscal year, the department shall distribute the funds collected
among the entities of government assigned responsibility for
management in direct proportion to the acreage which they manage.
The proceeds of the sale of the user permits must be used to defray
the management expenses.
Section 50-27-115. There is created the Heritage Land Trust
Fund, which must be kept separate from any other funds of the
State. The fund must be administered by the board of the
department for the purpose of acquiring fee simple or lesser interest
in priority areas, legal fees, appraisals, surveys, or other costs
involved in the acquisition of interest in priority areas, and for the
development of minimal facilities and management necessary for
the protection of the essential character of priority areas.
Expenditures under this section for management may not exceed ten
percent of revenues to the fund in any fiscal year.
Unexpended balances, including any interest derived from the
fund, must be carried forward each year and used only for the
purposes provided in this chapter.
No fund money may be expended to acquire interest in property
by eminent domain nor may the funds be expended to acquire
interest in property without a recommendation of the Heritage Trust
Advisory Board and the approval of the State Budget and Control
Board.
The board of the department shall report by letter to the presiding
officers of the General Assembly not later than January fifteenth
each year all funds expended pursuant to this chapter for the
previous year, including the amount of funds expended and the uses
to which the expenditures were applied.
The Trust Fund is eligible to receive appropriations of state
general funds, federal funds, donations, gifts, bond issue receipts,
securities, and other monetary instruments of value.
Reimbursement for monies expended from this fund must be
deposited in this fund. Funds received through sale, exchange, or
otherwise of any Heritage Preserve acquired under this section, or
any products of the Preserve such as timber, utility easement rights,
and the like, accrue to the fund.
Section 50-27-120. Nothing contained in this chapter shall be
construed as interfering with the purposes stated in the
establishment of or pertaining to any state or local park, preserve,
wildlife refuge, forest or other area or the proper management and
development thereof, except that any agency managing an area or
feature acquired as a Heritage Preserve or a Heritage Site under the
provisions of this chapter shall preserve it in accordance with the
applicable conveyance, registration agreement and the rules and
regulations of the board of the department applicable thereto.
Neither the acquisition of any Heritage Preserve nor the
registration of any Heritage Site nor any action taken by the board
of the department under any of the provisions of this chapter shall
void or replace any protective status under law which an area would
have were it not a Heritage Preserve or Heritage Site, the protective
provisions of this chapter being supplemental thereto.
Section 50-27-130. 1. Enforcement officers of the Natural
Resources Enforcement Division of the Department of Natural
Resources, park rangers, and forestry rangers, as well as all other
state and local law enforcement officials, shall have authority to
enforce the provisions of this chapter.
2. The Attorney General shall enforce the rules and regulations
of the board of the department both as they apply to those areas
dedicated as well as those that are subsequently made a part of the
corpus of the South Carolina Heritage Trust. In exercise of this
authority, the Attorney General may, among other things and at the
request of the board of the department, bring an action for
injunctive or declaratory relief in any court of competent
jurisdiction.
3. (a) Any person violating the provisions of this chapter
where the damage to the property does not exceed five hundred
dollars is guilty of a misdemeanor and, upon conviction, shall be
fined not more than one hundred dollars or be imprisoned not more
than thirty days for each offense.
(b) Any person violating the provisions of this chapter where
the damage to the property exceeds five hundred dollars is guilty of
a misdemeanor and, upon conviction, shall be fined not less than
five hundred dollars nor more than five thousand dollars or be
imprisoned not more than six months, or both, for each offense.
Section 50-27-140. Not more than one hundred thousand acres
total of real property shall be acquired in fee under the provisions
of this chapter. Moreover, no acquisition shall be made under this
chapter in any county without written approval of a majority of the
county delegation in the county where the property is located.
Section 50-27-150. The South Carolina Department of Natural
Resources, as trustee for the Heritage Land Trust Fund, shall report
annually to the Committee on Ways and Means of the House of
Representatives and the Senate Finance Committee detailing
acquisitions in the previous year by the Heritage Land Trust Fund
and planned acquisitions for the next five years."
SECTION 247. The first paragraph of Section 51-3-60 of the
1976 Code is amended to read:
"Any A South Carolina resident who is
over sixty-five years of age or disabled or legally blind as defined
in Section 43-25-20 of the 1976 Code may use any facility
of a state park except campsites, overnight lodging, and
recreation buildings without charge. Such These
residents also may also use campsite facilities at
one-half of the prescribed fee. A person exercising this privilege
on the basis of age shall present his medicare card or other card
approved by the South Carolina Commission
Division on Aging in the Office of the Governor
to the employee of the State Department of Parks,
Recreation and Tourism who is in charge of the particular state
park, and a person who is disabled or legally blind shall present to
such the person in charge of the park a certificate to
that effect from a licensed doctor of medicine or an official of an
agency authorized by law to make determinations of disability or
blindness. The authorization for use of the facilities as provided by
this section shall is not be effective if it
conflicts with any federal law, rule, or regulation."
SECTION 248. Section 51-13-860 of the 1976 Code is amended
to read:
"Section 51-13-860. The State Budget and Control
Board may transfer to the authority an amount not to exceed six
million dollars from the funds made available to the South
Carolina Coordinating Council for Economic Development
of the Department of Commerce pursuant to Section
12-27-1270, for the purpose of the authority participating in any
court approved settlement of the claims and litigation brought
against the authority, or its officers,
employees, or agents and arising from, related to, or
connected with the development of a hotel and marina complex
upon the lands of the authority, and for those other operating
expenses necessary for the further development of the authority.
This transfer is considered a loan to the authority, and it must be
for a period not to exceed three years as determined by the Budget
and Control Board and must be free of interest for that
period."
SECTION 249. Section 53-3-100 of the 1976 Code is amended
to read:
"Section 53-3-100. A committee is created to choose and
honor the `South Carolina Family of the Year' which must be
recognized by the presentation of an appropriate award by the
Governor on Saturday of `Family Week in South Carolina'. The
committee is composed of one member appointed by the Governor
and one member appointed by the head of each of the following
state agencies: the Department of Parks, Recreation and Tourism,
the Department of Youth Services Juvenile Justice,
the South Carolina Commission Division on Aging
of the Office of the Governor, the Department of Social
Services, the Commission on Department of
Alcohol and Other Drug Abuse Services, and the
Department of Agriculture Clemson College Extension Service.
The terms of the members are for four years and until their
successors are appointed and qualify. The committee shall meet as
soon after the appointment of its members as practicable and
organize by electing one of its members as chairman, one as
secretary, and such other officers that it may
determine. The expenses of the committee must be paid by the
Department of Parks, Recreation and Tourism from funds
appropriated for this purpose."
SECTION 250. Section 55-1-1 of the 1976 Code, as added by
Act 181 of 1993, is amended to read:
"Section 55-1-1. There is created a Division of
Aeronautics as a division within the Department of
Commerce which shall be governed by the Director of the
Department Secretary of Commerce as provided in
Chapter 1 of Title 13."
SECTION 251A. Section 55-5-50 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 55-5-50. The director secretary
shall employ a deputy director of aeronautics who is or
has been a commercial pilot with instrument rating and such
other employees as necessary for the proper transaction of the
division's business."
SECTION 251B. Section 56-1-40(2) of the 1976 Code is
amended to read:
"(2) whose driver's license or privilege to operate a
motor vehicle currently is suspended or revoked in this State or
another jurisdiction or whose driver's license or privilege to
operate a motor vehicle is subject to being suspended in this State
or another jurisdiction as a result of a conviction or another
adjudication which authorizes or requires the suspension or
revocation of a motor vehicle driver's license under the laws of this
State, except as otherwise provided for in this chapter
by law;"
SECTION 252. Section 56-1-80 of the 1976 Code, as last
amended by Section 121, Act 497 of 1994, is further amended to
read:
"Section 56-1-80. Every application for a driver's license
or permit must:
(1) be made upon the form furnished by the department;
(2) be accompanied by the proper fee and acceptable proof of
date and place of birth;
(3) contain the full name, date of birth, sex, race, and residence
address of the applicant and briefly describe the applicant;
(4) state whether the applicant has been licensed as an operator
or chauffeur and, if so, when and by what state or country; and
(5) state whether a license or permit has been suspended or
revoked or whether an application has been refused and, if so, the
date of and reason for the suspension, revocation, or refusal.
Whenever application is received from a person previously
licensed or permitted in another state, the Department of
Revenue and Taxation in conjunction with the Department of
Public Safety shall request a copy of the applicant's record from the
other state. When received, the record becomes a part of the
driver's record in this State with the same effect as though entered
on the operator's record in this State in the original instance. Every
person who obtains a driver's license or permit for the first time in
South Carolina and every person who renews his driver's license or
permit in South Carolina must be furnished a written request form
for completion and verification of liability insurance coverage.
The completed and verified form or an affidavit prepared by the
department Department of Public Safety that neither
he, nor a resident relative, owns a motor vehicle subject to the
provisions of this chapter, must be returned to the
department Department of Public Safety within
thirty days from the date the license or permit is issued or renewed.
Failure to return the form or affidavit results in the suspension of
the newly issued or renewed driver's license or permit until a
properly executed form or affidavit is returned to the
department."
SECTION 253. Section 56-1-135 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 56-1-135. (A) Notwithstanding the provisions
of Section 56-1-130, a paid or volunteer firefighter of a lawfully
and regularly organized fire department designated to drive a
firefighting vehicle may have a special endorsement affixed to his
driver's license which authorizes him to drive this vehicle for the
purpose of carrying out the duties and responsibilities of a fire
department and related activities.
(B) Every political subdivision and unincorporated community
operating a lawfully and regularly organized fire department of this
State shall designate a law enforcement officer or the fire chief or
his designee as its safety officer. The safety officer shall meet the
qualifications set forth in the department Department of
Public Safety guidelines. However, he does not have to be a
full-time employee. A firefighter desiring to drive the vehicle
referred to in subsection (A) shall demonstrate his ability to
exercise ordinary and reasonable control in the operation of this
vehicle to a safety officer. The fire department, including volunteer
fire departments, shall submit to the department
Department of Public Safety a list of the persons
designated to drive the vehicle.
(C) It is the responsibility of the agency or fire department who
operates the vehicle to keep the list of designated drivers current.
Changes in the list of drivers must be reported to the
department Department of Public Safety within
thirty days from the change."
SECTION 254. Section 56-1-221(B) of the 1976 Code is
amended to read:
"(B) The board shall advise the executive director
of the department Department of Public Safety on
medical criteria and vision standards relating to the licensing of
drivers."
SECTION 255A. Section 56-1-225 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 56-1-225. (a) Any person licensed to drive a
motor vehicle in this State who is involved as a driver in four
accidents in any twenty-four month period, which are reported to
the director Director of the Department of Public
Safety, may, in the discretion of the department
Department of Public Safety, be required to take any
portion of the driver's license examination deemed appropriate.
Any person who has had four such accidents and fails to submit to
such test within thirty days after having been notified by the
department Department of Public Safety shall have
his driver's license suspended until he takes and passes such test.
(b) The director Director of the Department of
Public Safety shall promulgate regulations to implement the
provisions of this section."
SECTION 255B. Section 56-1-320 of the 1976 Code is amended
to read:
"Section 56-1-320. The Department of Public Safety
may, in its discretion, suspend or revoke the license of any resident
of this State or the privilege of a nonresident to drive a motor
vehicle in this State upon receiving notice of the conviction of such
person in another state of an offense therein which, if committed in
this State, would be grounds for the suspension or revocation of the
South Carolina license.
Provided, however, that if another state restores limited or
restricted driving privileges to the person whose license has been
suspended or revoked such restoration of privileges shall also be
valid in this State under the same terms and conditions under which
driving is authorized in the resident state of the person
concerned conviction."
SECTION 255C. Section 56-1-390(1) of the 1976 Code is
amended to read:
"(1) Whenever the Department of Public Safety suspends
or revokes the license of a person under its lawful authority, the
license remains suspended or revoked and must not be reinstated or
renewed nor may another license be issued to that person until he
also remits to the department a reinstatement fee of thirty dollars.
The director or his designee may waive or return the
reinstatement fee if it is determined that the suspension or
revocation is based upon a lack of notice being given to the
department or other similar error."
SECTION 255D. Section 56-1-650 of the 1976 Code is amended
to read:
"(A) The licensing authority in the home state, for
the purposes of suspension, revocation, or limitation of the license
to operate a motor vehicle, shall give the same effect to the conduct
reported pursuant to Article 2, Chapter 1, Title 56, as it would if
the conduct had occurred in the home state, in the case of
convictions for A state that is a member of the Drivers
License Compact shall report to another member state of the
compact a conviction for any of the following:
(1) manslaughter or homicide resulting from the operation of
a motor vehicle as provided by Sections56-1-280 and 56-5-2910;
(2) driving a motor vehicle while under the influence of
alcoholic beverages or a narcotic drug, or under the influence of
any other drug to a degree which renders the driver incapable of
safely driving a motor vehicle, as provided by
Section56-5-2930;
(3) any felony in the commission of which a motor vehicle is
used, as provided by Section56-1-280;
(4) failure to stop and render aid in the event of a motor
vehicle accident resulting in the death or personal injury of another,
as provided by Section56-5-1210.
(B) As to other convictions, reported pursuant to Article 2,
Chapter 1, Title 56, the licensing authority in the home state shall
give such effect to the conduct as is provided by the laws of the
home state. If the laws of a member state do not describe
the violations listed in subsection (A) in precisely the words used in
that subsection, the member state shall construe the descriptions to
apply to offenses of the member state that are substantially similar
to the ones described. A state that is a member of the Drivers
License Compact shall report to another member state of the
compact a conviction for any other offense or any other information
concerning convictions that the member states agree to report.
(C) If the laws of a party state do not provide for offenses
described in precisely the words employed in subsection (A) of this
section, the party state shall construe the descriptions appearing in
subsection (A) of the section as being applicable to those offenses
of a substantially similar nature and the laws of the party state shall
contain such provisions that are necessary to ensure that full force
and effect is given to this article. For a conviction required
to be reported under subsection (A), a member state shall give the
same effect to the report as if the conviction had occurred in that
state. For a conviction that is not required to be reported under
subsection (A), the provisions of Section 56-1-320 shall govern the
effect of the reported conviction in this State. For a conviction that
is not required to be reported under subsection (A), notice of the
conviction must be received by the department for purposes of
suspension or revocation within one year of the date of
conviction."
SECTION 256. Section 56-1-1320 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 56-1-1320. A person with a South Carolina
driver's license, a person who had a South Carolina driver's license
at the time of the offense referenced below, or a person exempted
from the licensing requirements by Section 56-1-30, who is or has
been convicted of a first offense violation of an ordinance of a
municipality, or law of this State, that prohibits a person from
operating a vehicle while under the influence of intoxicating liquor,
drugs, or narcotics, and whose license is not presently suspended
for any other reason, may apply to the motor vehicle division of
the department Department of Revenue to obtain a
provisional driver's license of a design to be determined by the
department Department of Public Safety to operate
a motor vehicle. The person shall enter an Alcohol and Drug
Safety Action Program as provided for in Section 56-1-1330, shall
furnish proof of responsibility as provided for in Section 56-1-1350,
and shall pay to the department Department of
Revenue a fee of five dollars for the provisional driver's
license. The provisional driver's license is not valid for more than
six months from the date of issue shown on the license. The
determination of whether or not a provisional driver's license may
be issued pursuant to the provisions of this article as well as
reviews of cancellations or suspensions under Sections 56-1-370
and 56-1-820 must be made by the Director of the Department of
Public Safety or his designee."
SECTION 257. Section 56-1-1330 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 56-1-1330. The provisional driver's license
provision must include a mandatory requirement that the applicant
enter an Alcohol and Drug Safety Action Program certified by the
South Carolina Commission on Alcohol and Drug Abuse
Department of Alcohol and Other Drug Abuse Services and
be assessed to determine the extent and nature of an alcohol and
drug abuse problem, if any, and successfully complete treatment or
education services recommended by the program. The applicant
shall bear the cost of the services which must be determined by the
administering agency and approved by the South Carolina
Commission on Alcohol and Drug Abuse Department of
Alcohol and Other Drug Abuse Services. The cost may not
exceed seventy-five dollars for assessment, one hundred twenty-five
dollars for education services, two hundred twenty-five dollars for
treatment services, and three hundred dollars in total for any and all
services. The commission shall recommend subsequent cost
changes on an annual basis subject to the approval of the General
Assembly. If the applicant fails to complete successfully the
services as directed by the Department of Public Safety, the
South Carolina Commission on Alcohol and Drug Abuse
Department of Alcohol and Other Drug Abuse Services
shall notify the Department of Public Safety, and the provisional
driver's license issued by the department must be revoked, and the
suspension imposed for the full periods specified in Section
56-5-2990, the suspension to begin on date of notification to the
individual."
SECTION 258. Section 56-1-2100(D) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(D) Within ten days after issuing a commercial driver
license, the department Department of Public Safety
must notify the Commercial Driver License Information System of
that fact, providing all information required to insure
ensure identification of the person."
SECTION 259. Section 56-3-1010(3) of the 1976 Code, as
added by Section 90, Part II, Act 164 of 1993, is amended to read:
"(3) `Department' means the South Carolina Department
of Highways and Public Transportation
Revenue."
SECTION 260. Article 13, Chapter 3, Title 56 of the 1976
Code is amended by adding:
"Section 56-3-1720. The Department of Revenue shall
supply, at an appropriate fee, a special license plate for use on all
law enforcement motor vehicles primarily operated by line law
enforcement personnel of the Department of Public Safety. These
plates shall bear the words "South Carolina," a number,
and a prefix, `HP' or `TP', to designate respectively the highway
patrol or transport police. The Department of Revenue shall not
issue these prefixes for use on any motor vehicles except those
operated by the Department of Public Safety."
SECTION 261. Section 56-5-2950(d) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(d) If a person under arrest refuses, upon the request of a
law enforcement officer, to submit to chemical tests as provided in
subsection (a) of this section, none may be given, but the
department, on the basis of a report of the law enforcement officer
that the arrested person was operating a motor vehicle in this State
while under the influence of alcohol, drugs, or a combination of
them and that the person had refused to submit to the tests shall
suspend his license or permit to drive, or any nonresident operating
privilege for a period of ninety days. If the person is a resident
without a license or permit to operate a motor vehicle in this State,
the department shall deny to the person the issuance of a license or
permit for a period of ninety days after the date of the alleged
violation. The ninety-day period of suspension begins with the day
after the date of the notice required to be given, unless a hearing is
requested as provided, in which case the ninety-day period begins
with the day after the date of the order sustaining the suspension or
denial of issuance. The report of the arresting officer must include
what grounds he had for believing that the arrested person had been
operating a motor vehicle in this State while under the influence of
alcohol, drugs, or a combination of them. If the arrested person
took the chemical breath test but refused to provide a blood or urine
sample, the report of the arresting officer must include what were
his grounds for believing that the arrested person was under the
influence of drugs other than alcohol. If a person who refuses,
upon the request of a law enforcement officer, to submit to
chemical tests as provided in subsection (a) of this section, pleads
guilty or nolo contendere to, or forfeits bond for a first offense
violation of Section 56-5-2930, within thirty days of arrest, the
period of the suspension of driving privileges under this section
must be canceled and any suspension of driving privileges under
Section 56-5-2990 for a first conviction may not exceed six
months."
SECTION 262. Section 56-5-2990 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 56-5-2990. (A) The department shall
suspend the driver's license of any a person who is
convicted, receives sentence upon a plea of guilty or of nolo
contendere, or forfeits bail posted for the violation of Section
56-5-2930 or for the violation of any other law or ordinance of this
State or of any a municipality of this State that
prohibits any a person from operating a motor
vehicle while under the influence of intoxicating liquor, drugs, or
narcotics for six months for the first conviction, plea of guilty or of
nolo contendere, or forfeiture of bail, one year for the second
conviction, plea of guilty or of nolo contendere, or forfeiture of
bail, two years for the third offense, three years for the fourth
offense, and a permanent revocation of the driver's license for fifth
and subsequent offenses. Only those violations which occurred
within ten years including and immediately preceding the date of
the last violation shall constitute constitutes prior
violations within the meaning of this section. Any
A person whose license is revoked following conviction for
a fifth offense as provided in this section is forever barred from
being issued any a license by the Department of
Revenue and Taxation to operate a motor vehicle.
(B) Any A person whose license is
suspended under the provisions of this section must be notified of
suspension by the department of the requirement to be evaluated by
and successfully complete an Alcohol and Drug Safety Action
Program certified by the South Carolina Commission on Alcohol
and Drug Abuse Department of Alcohol and Other Drug
Abuse Services prior to before reinstatement of
the license. An assessment of the degree and kind of alcohol and
drug abuse problem, if any, of the applicant must be prepared and a
plan of education or treatment, or both, must be
developed based upon the assessment. Entry into and successful
completion of the services, if such the services are
necessary, recommended in the plan of education or
treatment, or both, developed for the applicant is a
mandatory requirement of the restoration of driving privileges to the
applicant. The applicant shall bear the cost of the services to be
determined by the administering agency and approved by the
Commission on Alcohol and Drug Abuse Department of
Alcohol and Other Drug Abuse Services. The cost may not
exceed seventy-five dollars for assessment, one hundred twenty-five
dollars for education services, two hundred twenty-five dollars for
treatment services, and three hundred dollars in total for any and all
services. No applicant may be denied services due to an inability to
pay. The applicant shall must be terminated from
the Alcohol and Drug Safety Action Program no later than six
months after the date of program enrollment. If the applicant has
not successfully completed the services as directed by the Alcohol
and Drug Safety Action Program by the end of the six-month
period of enrollment, a hearing must be provided by the
administering agency and if further needed by the Commission
on Alcohol and Drug Abuse Department of Alcohol and
Other Drug Abuse Services. If the applicant is unsuccessful in
the Alcohol and Drug Safety Action Program the department may
restore the privilege to operate a motor vehicle upon the
recommendation of the Medical Advisory Board as utilized by the
department if it determines public safety and welfare of the
petitioner may not be endangered.
(C) The department and the Commission on
Alcohol and Drug Abuse Department of Alcohol and Other
Drug Abuse Services shall develop procedures necessary for
the communication of information pertaining to relicensing or
otherwise. Such These procedures must be
consistent with the confidentiality laws of the State and the United
States. Successful completion of education, treatment services, or
both, for purposes of receiving a provisional driver's license as
stipulated in Section 56-1-1330 may be substituted in lieu of
services received under the authority of this section at the discretion
of the applicant. If the driver's license of any a
person is suspended by authority of this section, no insurance
company may refuse to issue insurance to cover the remaining
members of his family, but the insurance company is not liable for
any actions of the person whose license has been suspended or who
has voluntarily turned his license in to the department or the
Department of Revenue and Taxation." SECTION 263. The first paragraph of Section 56-5-4160(E) of the 1976
Code is amended to read:
"(E) Magistrates have jurisdiction of all contested
violations of this section. All monies collected pursuant to Section
56-5-4160 must be forwarded to the department as provided for in
this section. A magistrate, within forty-five days, must forward all
monies collected to the department for deposit in the state
general fund account established in this section. The
department shall use these monies to establish and maintain
an automated data base to collect, manage, and retain
information required on the uniform size and weight citation,
purchasing bases, to upgrade and refurbish existing weigh
stations, to purchase portable scales, upgrading and
refurbishing existing weigh stations, including adequate night
lighting for enforcement activities, to hire additional other
funded troopers or officers, to purchase equipment, and to
procure other safety measures that the department considers
necessary. The fine may be deposited with the arresting officer or a
person the department may designate. The fine must be deposited
in full or other arrangements satisfactory to the department for
payment must be made before the operator is allowed to move the
vehicle. If there is no conviction, the fine must be returned to the
owner promptly."
SECTION 264. Section 56-5-5810(f) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(f) `Director' means the Director of the Department of
Revenue and Taxation Public Safety."
SECTION 265A. Section 56-10-240 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 56-10-240. If, during the period for which it is
licensed, a motor vehicle is or becomes an uninsured motor vehicle,
then the vehicle owner immediately shall obtain insurance on the
vehicle or within five days after the effective date of cancellation or
expiration of his liability insurance policy surrender the motor
vehicle license plates and registration certificates issued for the
motor vehicle. If five working days after the last day to pay an
automobile liability insurance premium, whether it is the premium
due date or a grace period that is granted customarily or
contractually a motor vehicle is an uninsured motor vehicle, the
insurer shall give written notice, or notice by magnetic or electronic
media in a manner considered satisfactory to the department
Department of Public Safety, within ten days after the
five-day period ends, in addition to that notice previously given in
accordance with law, by delivery under United States Post Office
bulk certified mail, return receipt requested, to the
department Department of Public Safety of the
cancellation or refusal to renew under the following circumstances:
(1) the lapse or termination of such the insurance
or security occurs within three months of issuance provided
that. However, this subsection only applies to
new policies, and not renewal or replacement policies; or
(2) the lapse or termination occurs after three months for a
resident who fails one or more of the objective standards prescribed
in Section 38-73-455.
The Department of Revenue and Taxation Public
Safety, in its discretion, may authorize insurers to utilize
alternative methods of providing notice of cancellation of or refusal
to renew to the department Department of Public
Safety. The Department of Revenue may not reissue
registration certificates and license plates for that vehicle until
satisfactory evidence has been filed by the owner or by the insurer
who gave the cancellation or refusal to renew notice to the
department Department of Public Safety that the
vehicle is insured. Upon receiving information to the effect that a
policy is canceled or otherwise terminated on a motor vehicle
registered in South Carolina, the department Department
of Public Safety shall suspend the license plates and
registration certificate and shall initiate action as required within
fifteen days of the notice of cancellation to pick up the license
plates and registration certificate. A person who has had his license
plates and registration certificate suspended by the
department Department of Public Safety, but who at
the time of suspension possesses liability insurance coverage
sufficient to meet the financial responsibility requirements as set
forth in this chapter, has the right to appeal the suspension
immediately to the Director Chief Insurance
Commissioner of the Department of Insurance. If the
Director Chief Insurance Commissioner of the
Department of Insurance determines that the person has sufficient
liability insurance coverage, he shall notify the Department of
Revenue and Taxation Department of Public Safety,
and the suspension is voided immediately. The Department of
Revenue and Taxation Department of Public Safety
shall give notice by first class mail of the cancellation or suspension
of registration privileges to the vehicle owner at his last known
address. However, when license plates are surrendered pursuant to
this section, they must be forwarded to the Department of Revenue
and Taxation office in the county where the person who
surrenders the plates resides.
If the vehicle owner unlawfully refuses to surrender the
suspended items as required in this article, the department
Department of Public Safety through its designated agents
or by request to a county or municipal law enforcement agency may
take possession of the suspended license plates and registration
certificate and may not reissue the registration until proper proof of
liability insurance coverage is provided and until the owner has paid
a reinstatement fee of two hundred dollars for the first refusal under
this section, and three hundred dollars for each subsequent refusal.
A person who voluntarily surrenders his license plates and
registration certificate before their suspension shall only
must be charged only a reinstatement fee of five
dollars.
A person wilfully failing to return his motor vehicle license
plates and registration certificates as required in this section is
guilty of a misdemeanor and, upon conviction, must be punished as
follows:
(1) for a first offense, fined not less than one hundred
dollars nor more than two hundred dollars or imprisoned
for thirty days;
(2) for a second offense, fined two hundred dollars or
imprisoned for thirty days, or both;
(3) for a third and subsequent offense, imprisoned for
not less than forty-five days nor more than six months.
Only convictions which occurred within ten years including and
immediately preceding the date of the last conviction constitute
prior convictions within the meaning of this section."
SECTION 265B. Section 56-10-290 of the 1976 Code is amended
by adding a sentence at the end to read:
"In accordance with the provisions of Section 38-73-470, a
`Law Enforcement Enhancement Account' is established in the
Office of the State Treasurer for the purposes of paying for such
expenses as may be associated with the cost of enforcing this
chapter."
SECTION 266. Section 57-3-610 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 57-3-610. Whenever a road, bridge, or other
highway facility is dedicated and named in honor of an individual
by act or resolution of the General Assembly, the Department of
Transportation must be reimbursed all expenses incurred by the
department to implement the dedication.
Reimbursement for expenses incurred by the department must
first be approved by a majority of each county legislative
delegation the county transportation committee of the
county in which the road, bridge, or facility is located.
Reimbursement must be from the State Secondary "C"
Apportionment Fund of the county or counties in which the road,
bridge, or facility is located, and expenses under this section are
limited to five hundred dollars. If the road, bridge, or facility is
dedicated on an interstate highway, the allocation is limited to
actual expenses.
Reimbursement for expenses incurred by the department to name
and dedicate a highway facility pursuant to a request from other
than the General Assembly must be by agreement between the
requesting entity and the department."
SECTION 267. Section 57-5-1340 of the 1976 Code is amended
to read:
"Section 57-5-1340. In addition to the powers listed above,
the Department of Highways and Public Transportation may:
(1) request the issuance of turnpike bonds for the purpose of
paying all or any part of the cost of any one or more turnpike
projects;
(2) fix, and revise, from time to
time and charge, and collect tolls for transit over each
turnpike facility constructed by it;
(3) combine, for the purposes of financing the facilities, any
two or more turnpike facilities;
(4) control access to turnpike facilities;
(5) expend, to the extent permitted by a bond
resolution, expend turnpike facility or facilities revenues in
advertising the facilities and services of the turnpike facility or
facilities to the traveling public;
(6) receive and accept from any federal agency grants for or in
the aid of the construction of any turnpike facility;
(7) establish a separate division to administer turnpike facilities
and a separate turnpike facility account;
(8) do all acts and things necessary or convenient to carry out
the powers expressly granted in this article."
SECTION 268. Section 57-25-150(H) of the 1976 Code, as last
amended by Act 431 of 1994, is further amended to read:
"(H) National Historic Landmark Section 501(C)(3)
properties located along South Carolina highways and properties
listed on the National Register of Historic Places by the Department
of the Interior which are located along South Carolina highways are
allowed to erect small directional signs no more frequently than one
a mile within six miles of such properties."
The signs shall must state the name of the
historic property and mileage and comprise no more than twenty
letters measuring no more than fifteen inches by thirty-six inches
and painted using a single color or a neutral background.
The South Carolina Department of Highways and Public
Transportation shall issue a permit sticker for each sign for an
annual fee of fifteen dollars a sign. The department is also
is authorized to issue regulations as are necessary to
implement the permit process and the conditions and restrictions for
the proper placement, height, and design as necessary to
for the efficient administration of this subsection. The
department has no responsibility for erecting these permitted
signs."
SECTION 269. Section 57-25-470 of the 1976 Code is amended
to read:
"Section 57-25-470. (A) The Department of Highways
and Public Transportation may acquire by purchase, gift, or
condemnation, and shall pay just compensation upon the
removal of the following outdoor advertising signs, displays, and
devices:
(1) those lawfully in existence on October 22, 1965;
(2) those lawfully erected on or after May 6, 1969.
(B) Compensation may be paid only for the following:
(1) the taking from the owner of a sign, display, or device of
all right, title, leasehold, and interest in the sign, display, or device;
and
(2) the taking from the owner of the real property on which
the sign, display, or device is located, of the right to erect and
maintain signs, displays, and devices."
SECTION 270. Section 57-25-680 of the 1976 Code is amended
to read:
"Section 57-25-680. (A) The Department of Highways
and Public Transportation may acquire by purchase, gift, or
condemnation, and shall pay just compensation upon the
removal of the following outdoor advertising signs, displays, and
devices:
(1) those lawfully in existence on October 22, 1965;
(2) those lawfully erected on or after June 11, 1969.
(B) Compensation may be paid only for the following:
(1) the taking from the owner of the sign, display, or device
of all right, title, leasehold, and interest in the sign, display, or
device; and
(2) the taking from the owner of the real property on which
the sign, display, or device is located, of the right to erect and
maintain signs, displays, and devices."
SECTION 271. Section 57-27-70 of the 1976 Code is amended
to read:
"Section 57-27-70. When the Department of
Highways and Public Transportation determines that the
topography of the land adjoining the highway does not permit
adequate screening of a junkyard or the screening of the junkyard
would not be economically feasible, the department may acquire by
gift, purchase, exchange, or condemnation, such the
interests in lands necessary to secure the relocation, removal, or
disposal of the junkyards, and to pay for the costs of
relocation, removal, or disposal. When the department determines
that it is in the best interest of the State, it may acquire
lands, or interests in lands, necessary to provide adequate screening
of junkyards. The department may exercise the power of eminent
domain whenever it is necessary, in the judgment of the department,
to acquire lands, or interests therein in the land, by
condemnation."
SECTION 272. Article 3, Chapter 3, Title 58 of the 1976 Code
is amended to read:
"Article 3
Law Enforcement Department
Departments
Section 58-3-310. The law enforcement department of the
Public Service Commission shall consist of such officers,
inspectors, and agents as the commission may deem necessary and
proper for the enforcement of the Motor Vehicle Carrier Law and
other related laws, the enforcement of which is devolved upon the
department. The title of such officers, inspectors and agents shall
be `Transportation Division Inspectors'. The inspectors shall be
commissioned by the Governor upon the recommendation of the
commission. The commission may remove an inspector if it finds
that he is unfit for the position. The Department of Public
Safety must appoint officers and inspectors as necessary and proper
for the enforcement of the Motor Vehicle Carrier Safety Law and
other related laws, the enforcement of which is devolved upon the
Department of Public Safety, State Police Division.
Section 58-3-320. Each inspector of the law enforcement
department of the Public Service Commission shall execute a
bond with a licensed surety company in the amount of not less than
ten thousand dollars. The bond shall be filed with the commission
and shall be conditioned for the faithful performance of his duties,
for the prompt and proper accounting of funds coming into his
hands, and for the payment of any judgment rendered
against him in any court of competent jurisdiction upon a cause of
action arising out of breach or abuse of official duty or power and
damages sustained by any member of the public from any unlawful
act of the inspector. The coverage under the bond shall not include
damage to persons or property arising out of the negligent operation
of a motor vehicle. The bond may be individual, schedule or
blanket, and shall be approved by the Attorney General. The
premiums on the bonds shall be paid by the commission from
appropriated funds. This provision shall not apply to the
officers and inspectors of the Department of Public Safety, State
Police Division.
Section 58-3-330. Before entering upon the duties of his office,
each inspector of the law enforcement department of the Public
Service Commission shall take and subscribe before a notary
public, or other officer authorized to administer an oath, an oath to
faithfully perform the duties of his office and to properly execute
the laws of this State. This provision shall not apply to the
officers and inspectors of the Department of Public Safety, State
Police Division.
Section 58-3-340. The inspectors of the law enforcement
department of the Public Service Commission shall possess and
exercise all of the powers and authority held by constables at
common law. This provision shall not apply to the officers and
inspectors of the Department of Public Safety, State Police
Division.
Section 58-3-350. When acting in their official capacity,
inspectors of the law enforcement department of the Public
Service Commission shall have statewide authority for the
enforcement of all motor vehicle carrier laws and related laws.
This provision shall not apply to the officers and inspectors of
the Department of Public Safety, State Police Division.
Section 58-3-360. Inspectors of the law enforcement
department of the Public Service Commission shall enforce the
Motor Vehicle Carrier Law, and related laws,
and officers and troopers of the Department of Public
Safety, State Police Division shall enforce the Motor
Vehicle Carrier Safety Law and related laws, and all inspectors,
officers, and troopers of both departments shall
insure ensure that all persons violating any
provision of these laws are properly prosecuted.
Section 58-3-370. (A) When any a
person is apprehended by an inspector of the law enforcement
department of the Public Service Commission upon a charge of
violating the Motor Vehicle Carrier Law or related laws, the
following procedure shall be followed:
(1) The person being charged shall be served by the arresting
inspector with an official summons and arrest report. The report
shall give the appropriate judicial officer jurisdiction to dispose of
the case.
(2) The person being charged may deposit with the arresting
inspector a sum of money not to exceed one hundred dollars as bail
in lieu of being immediately brought before the magistrate or other
judicial officer; provided, that an official summons and arrest report
may be issued without requiring any sum of money as bail.
(3) The official summons and arrest report shall indicate the
amount of bail deposited with the inspector and shall serve as a
receipt for the sum.
(4) The arresting inspector shall transmit any sum of money
received from the person charged to the appropriate magistrate or
other judicial officer.
(5) Upon receipt of the sum of money, if any is required, as
bail, the arresting inspector may release the person charged so that
he may appear before the proper judicial officer at a time and place
stated in, and required by, the official summons and arrest report.
(B) When a person is apprehended by an inspector or an
officer of the Department of Public Safety, State Police Division on
a charge of violating the Motor Vehicle Carrier Safety Law or
related laws, the procedure provided in Section 23-6-150 must be
followed."
SECTION 273. Section 59-36-20 of the 1976 Code, as added
by Act 86 of 1993, is amended to read:
"Section 59-36-20. The State Board of Education and the
State Department of Education are responsible for establishing a
comprehensive system of special education and related services and
for ensuring that the requirements of the Federal Individuals with
Disabilities Education Act are carried out. Other state agencies
which provide services for children with disabilities are directed to
cooperate in the establishment and support of the system. Agencies
with responsibilities under this chapter include: the Department of
Mental Retardation Disabilities and Special Needs,
the School for the Deaf and the Blind, the Commission for the
Blind, the Department of Health and Environmental Control, the
Department of Mental Health, the State Department of Social
Services, Continuum of Care Division in the Office of the
Governor, and the State Department of Education.
All public education programs for children with disabilities
within the State, including all programs administered by any other
state or local agency, are under the general supervision of the
persons responsible for education programs for children with
disabilities in the State Department of Education and must meet the
standards of the State Board of Education.
No provision of this section or of this chapter may be construed
to limit the responsibilities of agencies other than the Department of
Education from providing or paying for some or all of the cost of
services to be provided the state's children with disabilities and the
level of service must, at a minimum, must be
similar to that provided individuals with similar needs. If agencies
are unable to agree on responsibilities for a particular child, the
issue must be decided by the Children's Case Resolution System,
Section 20-7-5210, et seq."
SECTION 274. The next to the last paragraph of Section
59-53-20 of the 1976 Code is amended to read:
"The State Board for Technical and Comprehensive
Education shall have the responsibility for developing and
maintaining short and long-range plans for providing up-to-date and
appropriate occupational and technical training for adults and shall
coordinate its planning activities with the Economic
Development Coordinating Council for Economic
Development of the Department of Commerce, the State
Council on Vocational-Technical Education, the Commission on
Higher Education, the State Department of Education, the
Employment Security Commission, and other state agencies,
institutions, and departments."
SECTION 275. Section 59-63-31(1)(b) of the 1976 Code, as
added by Act 163 of 1991, is amended to read:
"(b) a foster parent or in a residential community-based
care facility licensed by the Department of Social Services or
operated by the Department of Social Services or the Department of
Youth Services Juvenile Justice; or"
SECTION 276. Section 59-65-30(f) of the 1976 Code, as last
amended by Act 165 of 1993, is further amended to read:
"(f) A child who has reached the age of sixteen years and
whose further attendance in school, vocational school, or available
special classes is determined by a court of competent jurisdiction to
be disruptive to the educational program of the school, unproductive
of further learning, or not in the best interest of the child, and who
is authorized by the court to enter into suitable gainful employment
under the supervision of the court until age seventeen is attained.
However, prior to before being exempted from the
provisions of this article, the court first may first
require that the child concerned be examined physically and tested
mentally to assist the court to determine whether or not gainful
employment would be more suitable for the child than continued
attendance in school. The examination and testing must be
conducted by the Department of Youth Services Juvenile
Justice or by any a local agency which the
court determines to be appropriate. The court shall revoke the
exemption provided in this item upon a finding that the child fails
to continue in his employment until reaching the age of seventeen
years."
SECTION 277. The first paragraph of Section 59-67-535 of the
1976 Code is amended to read:
"Boats operated by the State Department of Education for
transportation of school children from islands to mainland schools
also may also be used to transport, on a space
available basis only, any a South Carolina resident
who is over fifty-five years of age or disabled or legally blind as
defined in Section 43-25-20 of the 1976 Code. A person
requesting boat transportation shall present his medicare card or
other card approved by the South Carolina Commission
Division on Aging of the Office of the Governor
to the employee of the State Department of Education who is in
charge of the particular boat, and a person who is disabled or
legally blind shall present to such the person in
charge of the boat a certificate to that effect from a licensed doctor
of medicine or an official of an agency authorized by law to make
determinations of disability or blindness."
SECTION 278. Section 59-111-20 of the 1976 Code, as last
amended by Act 151 of 1993, is further amended to read:
"Section 59-111-20. (A) A child of a wartime veteran,
upon application to and approval by the South Carolina
Department of Veterans Office of the Governor, Division of
Veterans' Affairs, may be admitted to any state-supported
college, university, or post high school technical education
institution free of tuition so long as his work and conduct is
satisfactory to the governing body of the institution, if the veteran
was a resident of this State at the time of entry into service and
during service or has been a resident of this State for at least one
year and still resides in this State or, if the veteran is deceased,
resided in this State for one year before his death, and
provided if the veteran served honorably in a
branch of the military service of the United States during a war
period, as those periods are defined by Section 101 of Title 38 of
the United States Code and:
(1) was killed in action;
(2) died from other causes while in the service;
(3) died of disease or disability resulting from service;
(4) was a prisoner of war as defined by Congress or
Presidential proclamation during such the war
period;
(5) is permanently and totally disabled, as determined by the
Veterans Administration from any cause;
(6) has been awarded the Congressional Medal of Honor;
(7) is missing in action; or
(8) the applicant is the child of a deceased veteran who
qualified under items (4) and (5).
(B) The provisions of this section apply to a child of a veteran
who meets the residency requirements of Chapter 112 of this title,
is twenty-six years of age or younger, and is pursuing any type of
undergraduate degree."
SECTION 279. Section 61-1-120 of the 1976 Code, as added
by Act 112 of 1993, is amended to read:
"Section 61-1-120. A person desiring a license or permit
under this title shall file with the commission
department an application in writing on forms provided by
the commission department containing a statement
under oath setting forth:
(1) the name, address, date of birth, race, and nationality of the
person applying for the license or permit;
(2) the exact location where the business is proposed to be
operated;
(3) a description of the type of business to be operated;
(4) whether the applicant or an owner of the business has been
involved in the sale of alcoholic liquors, beer, or wine in this or
another state and whether he has had a license or permit suspended
or revoked;
(5) other information required by the commission
department to determine if the application meets all
statutory requirements for the license or permit and to determine the
true owners of the business seeking the license or permit."
SECTION 280. Section 61-1-125(C)of the 1976 Code, as added
by Act 112 of 1993, is amended to read:
"(C) No license or permit may be issued by the
commission department to a person under
twenty-one years of age."
SECTION 281. Section 61-5-320 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 61-5-320. Prior to Before the
use of the revenue described in Section 61-5-310, the governing
body of each county shall:
(a) designate a single existing county agency or organization,
either public or private, as the sole agency in the county for alcohol
and drug abuse planning for programs funded by revenues allocated
pursuant to Article 1 of this chapter or create a new agency for that
purpose;
(b) develop a county plan in accordance with the state plan for
alcohol abuse and alcoholism and the state plan for drug abuse
required by Public Laws 91-616 and 92-255 for the prevention and
control of alcohol and drug abuse and obtain written approval of
such the plan by the South Carolina Commission
on Alcoholism and the Commissioner of Narcotics and Controlled
Substances Department of Alcohol and Other Drug Abuse
Services. Such The written approval
shall must be granted by the South Carolina
Commission on Alcoholism and by the Commissioner of Narcotics
and Controlled Substances Department of Alcohol and
Other Drug Abuse Services if reasonable. In the event
If approval is denied, an appeal may be taken to
the Governor shall lie. Such The appeal
shall must state fully state the reasons why it
is made. Should If the Governor deem
considers nonapproval of the plan by the South Carolina
Commission on Alcoholism and the Commissioner of Narcotics and
Controlled Substances Department of Alcohol and Other
Drug Abuse Services to be unreasonable, he shall communicate
his reasons to the Commission on Alcoholism and the
Commissioner of Narcotics and Controlled Substances
Department of Alcohol and Other Drug Abuse Services and
require them it to reexamine such
the plan in light of his objections. Following such
the reexamination, no further appeal shall lie
may be taken."
SECTION 282. Section 61-5-360 of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"Section 61-5-360. Each county governing body shall:
(a) establish such methods of administration as
are necessary for the proper and efficient operation of the
programs and services or projects, including the provision of annual
reports of progress toward implementing county plans to the
South Carolina Commission on Alcohol and Drug Abuse
Department of Alcohol and Other Drug Abuse Services;
(b) provide for such accounting procedures as may
be necessary to assure proper disbursement of and accounting
for such the funds, including an annual audit of
fiscal records, a copy of which shall must be
furnished to the South Carolina Commission on Alcohol and
Drug Abuse Department of Alcohol and Other Drug Abuse
Services."
SECTION 283. Section 61-9-35 of the 1976 Code, as added by
Act 112 of 1993, is amended to read:
"Section 61-9-35. A holder of a beer permit or a beer and
wine permit may not purchase beer or wine, or both, on credit by a
dishonored check, an unpaid note or invoice, or other insufficient
manner from a permitted beer and wine wholesaler. However, no
action may be taken against the holder for his first violation of this
section. If a holder commits a second or subsequent violation, his
retail dealer's permit may be suspended, canceled, or revoked by
the Alcoholic Beverage Control Commission Department
of Revenue or a monetary penalty of not more than twenty-five
dollars may be assessed against him."
SECTION 284. Section 61-13-590 of the 1976 Code is amended
to read:
"Section 61-13-590. No liquors so sold
shall may be delivered within a period of
five days after such the sale, during which time the
Tax Commission department may, in its
discretion, may reject any a bid and order
the liquors resold until a satisfactory bid is had
made. But However, if confiscated liquors
are offered for sale, after advertisement, as herein
provided in this chapter, on two different dates and no bids
are made thereon, the liquors shall must be
destroyed by the proper officers."
SECTION 285. Subsections (A) and (D), Section 1613 of Act
181 of 1993 are amended to read:
"SECTION 1613. (A) Where the provisions of this act
transfer particular state agencies, departments, boards, commissions,
committees or entities, or sections, divisions or portions thereof
(transferring departments), to another state agency, department,
division or entity or make them a part of another department or
division (receiving departments), the employees, the personnel
records of employees who are transferred, authorized
appropriations, bonded indebtedness if applicable, and real and
personal property of the transferring department are also transferred
to and become part of the receiving department or division unless
otherwise specifically provided. All classified or unclassified
personnel of the affected agency, department, board, commission,
committee, entity, section, division or position employed by these
transferring departments on the effective date of this act, either by
contract or by employment at will, shall become employees of the
receiving department or division, with the same compensation,
classification, and grade level, as applicable. The Budget and
Control Board shall cause all necessary actions to be taken to
accomplish this transfer and shall in consultation with the agency
head of the transferring and receiving agencies prescribe the manner
in which the transfer provided for in this section shall be
accomplished. The boards' action in facilitating the provisions of
this section are ministerial in nature and shall not be construed as
an approval process over any of the transfers.
(D) Employees or personnel of agencies, departments, entities or
public officials, or sections, divisions or portions thereof,
transferred to or made a part of another agency, department,
division, or official pursuant to the terms of this act shall continue
to occupy the same office locations and facilities which they now
occupy unless or until otherwise changed by appropriate action and
authorization. The rent and physical plant operating costs of these
offices and facilities, if any, shall continue to be paid by the
transferring agency, department, entity or official formerly
employing these personnel until otherwise provided by the General
Assembly. The records and files of the agencies which formerly
employed these personnel shall continue to remain the property of
these transferring agencies, except that these personnel shall have
complete access to these records and files in the performance of
their duties as new employees of the receiving agency. The
personnel record of an employee who is transferred shall become
the property of the receiving agency to which the employee has
been transferred."
SECTION 286. Section 1618 of Act 181 of 1993 is amended to
read:
"SECTION 1618. (A) Article 1 of Chapter 1 of Title
13, Chapter 1 of Title 55, Chapter 1 of Title 61, Chapter 3 of Title
43, Chapter 3 of Title 61, Article 5 of Chapter 1 of Title 31,
Chapter 5 of Title 55, Chapter 5 of Title 61, Article 7 of Chapter 1
of Title 31, Chapter 7 of Title 61, Chapter 9 of Title 55, Chapter 9
of Title 61, Chapter 11 of Title 25, and Sections 1-3-210, 1-3-220,
1-3-240, 1-3-250, 1-15-10, 1-20-50(c), 1-20-50(B)(5),
1-23-120(G)(3), 1-23-310, 1-23-320, 1-25-60(A), 2-7-71, 2-7-105,
2-13-190, 2-13-240, 2-15-61, 2-17-15, 2-19-30, 2-19-70, 2-67-10,
2-67-30, 4-9-155, 4-10-25, 4-10-60, 4-10-80, 4-10-90,
4-29-67, 5-3-90, 5-3-110, 5-3-300, 5-7-110, 5-27-510, 7-13-710,
8-1-80, 8-1-100, 8-11-10, 8-11-945, 8-13-910, 8-17-370,
8-21-310(20)(A), 8-21-770(B), 8-21-780, 8-21-790, 9-1-60,
9-11-180, 10-7-10, 10-11-80, 11-9-820, 11-9-825, 11-11-10,
11-17-10(a), 11-35-45(B), 11-35-710, 11-35-1520(12),
11-35-5230(B)(4), 11-35-5250(2), 11-35-5270, 12-2-10, 12-4-10,
12-4-30, 12-4-335, 12-4-350, 12-4-370, 12-7-455, 12-7-460,
12-7-1220, 12-7-1250, 12-7-1590, 12-7-2010, 12-7-2230,
12-7-2590, 12-7-2610, 12-9-130, 12-9-310, 12-9-420, 12-9-630,
12-9-860, 12-13-70, 12-16-1110, 12-19-20, 12-19-60, 12-19-100,
12-21-100, 12-21-320, 12-21-470, 12-21-660, 12-21-780,
12-21-820, 12-21-1060, 12-21-1110, 12-21-1320, 12-21-1540,
12-21-1550, 12-21-1570, 12-21-1580, 12-21-1590, 12-21-1610,
12-21-1840, 12-21-2420, 12-21-2719, 12-21-2720, 12-21-2726,
12-21-3320, 12-21-3441, 12-21-3590, 12-21-3600, 12-23-815,
12-23-820, 12-23-830, 12-27-270, 12-27-380, 12-27-390,
12-27-405, 12-27-430, 12-27-1210, 12-27-1220, 12-27-1230,
12-27-1240, 12-27-1250, 12-27-1260, 12-27-1290, 12-27-1320,
12-27-1510, 12-29-20, 12-29-110, 12-29-150, 12-31-20, 12-31-50,
12-31-210, 12-31-230, 12-31-240, 12-31-250, 12-31-260,
12-31-270, 12-31-280, 12-31-420, 12-31-610, 12-31-620,
12-31-640, 12-33-70, 12-33-420, 12-33-480, 12-33-485, 12-33-620,
12-33-630, 12-35-560, 12-36-1370, 12-36-1710,
12-36-2120, 12-36-2660, 12-37-220, 12-37-380, 12-37-970,
12-37-975, 12-37-1120, 12-37-1130, 12-37-1410, 12-37-1420,
12-37-1610, 12-37-2110, 12-37-2410, 12-37-2650, 12-37-2660,
12-37-2670, 12-37-2680, 12-37-2700, 12-37-2725,
12-37-2727, 12-39-180, 12-43-210, 12-43-220, 12-43-280,
12-43-300, 12-43-305, 12-43-320, 12-43-335, 12-45-70, 12-47-10,
12-47-60, 12-49-90, 12-49-271, 12-49-290, 12-51-135, 12-53-10,
12-53-210, 12-53-220, 12-54-10, 12-54-230, 12-54-240, 12-54-250,
12-54-260, 12-54-420, 12-54-430, 12-54-720, 13-7-20, 13-7-70(4),
13-7-160, 13-11-80, 13-19-160, 14-7-130, 14-23-1140, 15-9-210(b),
15-9-350, 15-9-360, 15-9-370, 15-9-380, 15-9-390, 15-9-410,
16-3-1110, 16-3-1120, 16-11-340, 19-5-30, 20-7-121, 20-7-128,
20-7-410, 20-7-600, 20-7-630, 20-7-655(B), 20-7-770, 20-7-780,
20-7-1330, 20-7-1490, 20-7-1645, 20-7-2095, 20-7-2115,
20-7-2125, 20-7-2155, 20-7-2170, 20-7-2175, 20-7-2180,
20-7-2185, 20-7-2190, 20-7-2195, 20-7-2200, 20-7-2203,
20-7-2205, 20-7-2260, 20-7-2310, 20-7-2379, 20-7-2700,
20-7-2760, 20-7-2830, 20-7-2880, 20-7-2930, 20-7-2940,
20-7-3050, 20-7-3100, 20-7-3110, 20-7-3120, 20-7-3130,
20-7-3170, 20-7-3180, 20-7-3190, 20-7-3200, 20-7-3210,
20-7-3230, 20-7-3235, 20-7-3240, 20-7-3270, 20-7-3280,
20-7-3300, 20-7-3310, 20-7-3350, 20-7-3360, 20-7-5420,
20-7-5610, 20-7-5630, 20-7-5660, 20-7-5670, 22-1-30, 23-3-10,
23-3-20, 23-3-160, 23-25-20, 23-25-40, 23-31-140, 23-33-20,
23-35-70, 23-41-30(f), 23-41-30(c), 24-1-40, 24-1-90, 24-1-100,
24-1-110, 24-1-120, 24-1-130, 24-1-140, 24-1-145, 24-1-150,
24-1-160, 24-1-170, 24-1-200, 24-1-210, 24-1-220, 24-1-230,
24-1-250, 24-1-260, 24-1-270, 24-3-20, 24-3-30, 24-3-40, 24-3-60,
24-3-70, 24-3-80, 24-3-90, 24-3-110, 24-3-130(A), 24-3-131,
24-3-140, 24-3-150, 24-3-160, 24-3-170, 24-3-180, 24-3-190,
24-3-200, 24-3-210, 24-3-315, 24-3-320, 24-3-330, 24-3-340,
24-3-360, 24-3-380, 24-3-390, 24-3-400, 24-3-410(C), 24-3-510,
24-3-520, 24-3-530, 24-3-540, 24-3-550, 24-3-710, 24-3-720,
24-3-730, 24-3-740, 24-3-750, 24-3-760, 24-3-920, 24-3-950,
24-3-960, 24-7-90, 24-9-10, 24-9-20, 24-9-30, 24-11-30,
24-13-210(c), 24-13-230(A), 24-13-270, 24-13-640, 24-13-710,
24-13-940, 24-13-1310(3), 24-13-1320, 24-13-1330(B) and (C),
24-13-1340(B), 24-13-1520(1) and (2), 24-13-1590, 24-19-10(C),
24-19-20, 24-19-30, 24-19-40, 24-19-60, 24-19-80, 24-19-90,
24-19-100, 24-19-110, 24-19-160, 24-21-10, 24-21-11, 24-21-12,
24-21-13, 24-21-60, 24-21-70, 24-21-220, 24-21-221, 24-21-230,
24-21-250, 24-21-260, 24-21-280, 24-21-290, 24-21-485,
24-21-620, 24-21-645, 24-21-650, 24-21-930, 24-22-20(a),
24-22-160, 24-23-40, 24-23-110, 24-23-115, 24-23-220, 24-25-40,
24-25-50, 24-25-70, 27-18-20(1), 30-4-40(a)(10), 31-1-30,
31-1-120, 31-1-140, 31-1-150, 31-1-160, 31-1-200, 31-1-210,
31-1-220, 31-3-20(1), 31-3-340, 31-3-370, 31-3-390, 31-3-750,
31-17-340, 31-17-360, 31-17-370, 31-17-510(g), 33-1-210,
33-14-200, 33-14-220(a), 33-14-400, 33-15-300(a)(1) and (b),
33-15-310(c), 33-15-330(A)(4), 33-16-101(e)(7), 33-31-60,
33-37-250(10), 36-9-307, 36-9-319, 38-1-10, 38-77-113,
38-77-1120(a), 39-9-230, 39-15-170, 39-41-40, 39-43-160,
39-57-20, 41-41-40, 41-44-60, 41-44-80, 42-1-490, 42-1-500,
42-7-10, 42-7-20, 42-7-30, 42-7-40, 42-7-70, 42-7-75, 42-7-90,
42-7-200, 42-7-310, 43-1-10, 43-1-50, 43-1-60, 43-1-70, 43-1-170,
43-1-190, 43-1-200, 43-1-210, 43-5-10, 43-5-75, 43-5-120,
43-5-150, 43-5-170, 43-5-220, 43-5-550(f), 43-5-550(h)(5),
43-5-620, 43-21-10, 43-21-20, 43-21-40, 43-21-50, 43-21-60,
43-21-70, 43-21-80, 43-21-100, 43-21-120, 43-21-130, 43-21-150,
43-21-160, 43-21-170, 43-21-180, 44-9-20, 44-9-30, 44-9-40,
44-9-50, 44-9-60, 44-9-160, 44-15-60, 44-15-80, 44-20-10,
44-20-20, 44-20-30, 44-20-210, 44-20-220, 44-20-230, 44-20-240,
44-20-250, 44-20-260, 44-20-270, 44-20-280, 44-20-290,
44-20-300, 44-20-310, 44-20-320, 44-20-330, 44-20-340,
44-20-350, 44-20-360, 44-20-370, 44-20-375, 44-20-378,
44-20-380, 44-20-385, 44-20-390, 44-20-400, 44-20-410,
44-20-420, 44-20-430, 44-20-440, 44-20-450, 44-20-460,
44-20-470, 44-20-480, 44-20-490, 44-20-500, 44-20-510,
44-20-710, 44-20-720, 44-20-730, 44-20-740, 44-20-750,
44-20-760, 44-20-770, 44-20-780, 44-20-790, 44-20-800,
44-20-900, 44-20-1000, 44-20-1110, 44-20-1120, 44-20-1130,
44-20-1140, 44-20-1150, 44-20-1160, 44-20-1170, 44-22-10,
44-22-50, 44-22-100, 44-22-110, 44-23-10, 44-23-210, 44-23-220,
44-23-410, 44-25-30, 44-26-10, 44-26-70, 44-26-80, 44-26-120,
44-26-170, 44-28-20, 44-28-40, 44-28-60, 44-28-80, 44-28-360,
44-28-370, 44-36-20, 44-38-30, 44-38-310, 44-38-320, 44-38-330,
44-38-340, 44-38-350, 44-38-360, 44-38-370, 44-38-380,
44-38-390, 44-43-30, 44-43-50, 44-43-70, 44-49-10, 44-49-20,
44-49-30, 44-49-40, 44-49-50, 44-49-60, 44-49-70, 44-49-80,
44-52-10, 44-53-710, 44-53-740, 44-63-110, 44-96-60, 44-96-120,
44-96-140, 44-96-160, 44-96-170(L) and (M), 44-96-180,
44-96-200, 44-96-220, 44-107-80, 46-13-60(2)(c), 48-30-30(A)(5),
48-30-50, 48-30-70, 48-30-80, 48-47-175(B), 49-29-210, Article 1,
Chapter 1, Title 51, 51-11-10, 51-11-15, 51-11-20, 51-11-30,
51-11-40, 51-11-50, 51-11-60, 51-19-10, 55-8-10(a), 55-8-50(a)(2),
55-8-170, 55-11-10(5), 55-11-520, 55-15-10(f), 56-1-10, 56-1-80,
56-1-90, 56-1-135, 56-1-145, 56-1-220, 56-1-225, 56-1-270,
56-1-280, 56-1-290, 56-1-300, 56-1-310, 56-1-320, 56-1-330,
56-1-340, 56-1-350, 56-1-360, 56-1-365, 56-1-370, 56-1-380,
56-1-390, 56-1-400, 56-1-410, 56-1-420, 56-1-460, 56-1-463,
56-1-475, 56-1-510, 56-1-520, 56-1-530, 56-1-540, 56-1-550,
56-1-630, 56-1-740, 56-1-745, 56-1-746, 56-1-770, 56-1-790,
56-1-800, 56-1-810, 56-1-820, 56-1-830, 56-1-840, 56-1-850,
56-1-1020, 56-1-1030, 56-1-1090, 56-1-1100, 56-1-1120,
56-1-1130, 56-1-1320, 56-1-1330, 56-1-1340, 56-1-1730,
56-1-1760, 56-1-2050, 56-1-2100, 56-1-2110, 56-1-2130,
56-1-2140, 56-1-3350, 56-1-3360, 56-1-3370, 56-1-3380,
56-1-3390, 56-1-3400, 56-3-20, 56-3-115, 56-3-250, 56-3-255,
56-3-360, 56-3-650, 56-3-790, 56-3-860, 56-3-910, 56-3-1150,
56-3-1160, 56-3-1330, 56-3-1340, 56-3-1710, 56-3-1750,
56-3-1850, 56-3-1910, 56-3-1950, 56-3-1960, 56-3-1971,
56-3-1972, 56-3-1973, 56-3-1974, 56-3-2010, 56-3-2020,
56-3-2060, 56-3-2150, 56-3-2210, 56-3-2230, 56-3-2250,
56-3-2320, 56-3-2600, 56-3-2710, 56-3-2810, 56-3-3310,
56-3-3710, 56-3-4310, 56-3-4910, 56-3-5920, 56-5-60, 56-5-370,
56-5-910, 56-5-920, 56-5-930, 56-5-935, 56-5-1520, 56-5-1530,
56-5-1540, 56-5-1560, 56-5-1570, 56-5-1890, 56-5-1910,
56-5-1980, 56-5-2120, 56-5-2330, 56-5-2540, 56-5-2550,
56-5-2585, 56-5-2715, 56-5-2730, 56-5-2945, 56-5-2950,
56-5-2990, 56-5-3660, 56-5-3670, 56-5-3680, 56-5-3690,
56-5-3750, 56-5-3880, 56-5-4040, 56-5-4060, 56-5-4070,
56-5-4075, 56-5-4095, 56-5-4140, 56-5-4145, 56-5-4150,
56-5-4160(E), 56-5-4170, 56-5-4175, 56-5-4180, 56-5-4185,
56-5-4190, 56-5-4200, 56-5-4205, 56-5-4210, 56-5-4220,
56-5-4720, 56-5-4840, 56-5-4880, 56-5-4940, 56-5-5010,
56-5-5320, 56-5-5330, 56-5-5340, 56-5-5350, 56-5-5360,
56-5-5400, 56-5-5410, 56-5-5420, 56-5-5430, 56-5-5670,
56-5-5810, 56-5-5830, 56-5-5850, 56-5-5860, 56-5-5870,
56-5-6140, 56-7-10, 56-7-20, 56-7-30, 56-7-50, 56-9-20, 56-10-10,
56-10-20, 56-10-40, 56-10-45, 56-10-210, 56-10-220, 56-10-240,
56-10-245, 56-10-280, 56-10-290, 56-15-10, 56-15-50, 56-15-320,
56-16-10, 56-16-20, 56-16-110, 56-16-150, 56-19-10, 56-19-80,
56-19-390, 56-19-425, 56-23-10, 56-23-40, 56-23-70, 56-23-85,
56-25-10, 56-27-10, 56-29-20, 56-29-50, 56-31-50, 57-1-10,
57-1-20, 57-1-30, 57-1-40, 57-1-45, 57-1-50, 57-1-60, 57-1-70,
57-1-80, 57-1-90, 57-1-100, 57-1-110, 57-1-140, 57-3-10, 57-3-20,
57-3-30, 57-3-35, 57-3-40, 57-3-50, 57-3-610, 57-3-620, 57-3-630,
57-3-640, 57-3-650, 57-3-660, 57-3-670, 57-3-680, 57-3-690,
57-3-700, 57-3-710, 57-3-720, 57-3-730, 57-3-750, 57-3-760,
57-3-770, 57-5-10, 57-5-20, 57-5-30, 57-5-40, 57-5-50, 57-5-60,
57-5-70, 57-5-80, 57-5-90, 57-5-100, 57-5-110, 57-5-120, 57-5-130,
57-5-140, 57-5-150, 57-5-160, 57-5-170, 57-5-180, 57-5-190,
57-5-310, 57-5-320, 57-5-330, 57-5-340, 57-5-350, 57-5-370,
57-5-380, 57-5-540, 57-5-550, 57-5-570, 57-5-580, 57-5-590,
57-5-600, 57-5-710, 57-5-720, 57-5-760, 57-5-1010, 57-5-1320,
57-5-1350, 57-5-1450, 57-5-1610, 57-5-1620, 57-5-1630,
57-5-1660, 57-11-210, 57-11-220, 57-11-240, 57-11-250,
57-11-270, 57-11-280, 57-11-290, 57-11-300, 57-11-320,
57-11-330, 57-11-340, 57-11-360, 57-11-370, 57-11-380,
57-11-390, 57-13-10, 57-13-40, 57-13-130, 57-15-140, 57-23-10,
57-23-20, 57-23-110, 57-23-120, 57-23-210, 57-23-220, 57-23-300,
57-23-310, 57-23-350, 57-23-360, 57-23-400, 57-23-410,
57-23-420, 57-23-500, 57-23-510, 57-23-520, 57-23-600,
57-23-610, 57-23-620, 57-23-700, 57-23-710, 57-23-720,
57-25-110, 57-25-120, 57-25-130, 57-25-140, 57-25-150,
57-25-155, 57-25-160, 57-25-170, 57-25-180, 57-25-185,
57-25-190, 57-25-195, 57-25-200, 57-25-210, 57-25-220,
57-25-430, 57-25-440, 57-25-460, 57-25-480, 57-25-490,
57-25-640, 57-25-650, 57-25-670, 57-25-690, 57-25-700, 57-27-20,
57-27-90, 58-1-30, 58-1-40, 58-3-20, 58-3-24, 58-3-100, 58-12-130,
58-15-1625, 58-15-1650, 58-15-1680, 58-15-1910, 58-15-1920,
58-15-1930, 58-15-1940, 58-15-1950, 58-15-2120, 58-15-2130,
58-17-1450, 58-23-1220, 58-25-80, 58-27-690, 58-35-50,
59-20-20(3), 59-53-10, 59-53-420(14), 59-54-40, 59-67-20,
59-67-260, 59-67-540, 59-67-570, 59-117-90, 59-137-50(B),
61-13-295, 61-13-410, 61-13-470, 61-13-500, 61-13-510,
61-13-540, 61-13-570, 61-13-620, 61-13-630, 61-13-750,
61-13-810, 61-13-835, 61-13-836, 61-13-875, 61-13-885, 62-3-203,
62-3-301, 62-3-704, 62-3-706, 62-3-1002, and 62-5-105, as
amended by this act, are effective July 1, 1993.
(B) Chapter 28 of Title 40, Chapter 65 of Title 40, and Sections
6-9-60, 10-5-230, 10-5-240, 10-5-270, 10-5-300, 10-5-320,
10-9-320, 10-11-50, 23-9-10, 23-9-60, 23-9-65, 23-9-70,
23-9-155, 23-9-210, 23-10-10, 23-35-140, 23-36-160, 23-43-20,
23-43-70, 23-43-110, 23-43-140, 40-1-140, 40-1-310, 40-1-350,
40-3-40, 40-3-120, 40-3-135, 40-3-140, 40-6-40, 40-6-45, 40-6-180,
40-6-220, 40-7-60, 40-7-270, 40-9-30, 40-9-31, 40-9-36, 40-9-95,
40-11-40, 40-11-60, 40-11-90, 40-11-150, 40-11-180, 40-11-190,
40-11-300, 40-11-320, 40-11-350, 40-13-60, 40-13-80, 40-13-260,
40-13-300, 40-15-40, 40-15-50, 40-15-185, 40-15-200, 40-15-210,
40-15-215, 40-15-370, 40-15-380, 40-19-10, 40-19-70, 40-19-80,
40-19-160, 40-19-170, 40-22-150, 40-22-420, 40-22-440, 40-23-40,
40-23-127, 40-29-20, 40-29-50, 40-29-100, 40-29-110, 40-29-160,
40-29-210, 40-33-250, 40-33-931, 40-33-960, 40-35-70, 40-35-135,
40-36-160, 40-37-50, 40-37-230, 40-38-60, 40-38-230, 40-43-135,
40-43-260, 40-43-410, 40-45-260, 40-47-170, 40-47-200,
40-47-210, 40-47-570, 40-47-630, 40-47-660, 40-51-160,
40-55-140, 40-55-160, 40-56-10, 40-56-20, 40-57-170, 40-57-220,
40-59-50, 40-59-60, 40-59-90, 40-59-95, 40-59-130, 40-60-160,
40-60-170, 40-60-210, 40-61-40, 40-61-110, 40-63-10, 40-63-30,
40-63-120, 40-67-100, 40-67-170, 40-69-70, 40-69-150, 40-69-210,
40-69-420, 40-75-40, 40-75-180, 40-77-100, 40-77-110, 40-77-320,
41-1-10, 41-3-10, 41-3-30, 41-3-40, 41-3-50, 41-3-55, 41-3-60,
41-3-70, 41-3-80, 41-3-100, 41-3-110, 41-3-120, 41-3-130,
41-3-140, 41-3-510, 41-3-520, 41-3-530, 41-3-540, 41-15-600,
41-15-610, 41-15-620, 41-18-90, 48-27-70, 48-27-200, 52-7-15,
52-7-20, and 52-7-30, as amended by this act, are effective
February 1, 1994.
(C) Sections 23-9-150, 23-9-170, 23-9-180, 23-36-80,
23-43-180, and 54-15-320, as amended by this act, are effective
March 1, 1994.
(D) SECTION 344 is effective October 1, 1993.
(E) Chapter 3 of Title 50, Chapter 4 of Title 49, Article 5 of
Chapter 9 of Title 48, Chapter 5 of Title 49, Chapter 5 of Title 50,
Chapter 6 of Title 49, Article 7 of Chapter 9 of Title 48, Chapter 7
of Title 50, Article 9 of Chapter 9 of Title 48, Chapter 9 of Title
50, Chapter 11 of Title 50, Chapter 11 of Title 49, Chapter 13 of
Title 50, Chapter 15 of Title 50, Chapter 16 of Title 50,
Chapter 17 of Title 50, Chapter 18 of Title 48, Chapter 19 of Title
50, Chapter 20 of Title 50, Chapter 21 of Title 50, Chapter 21 of
Title 49, Chapter 23 of Title 49, Chapter 23 of Title 50, Chapter 25
of Title 49, Chapter 25 of Title 50, Chapter 29 of Title 49, Chapter
39 of Title 48, Chapter 43 of Title 48, and Sections 1-1-110,
1-23-110, 1-23-115, 1-23-130, 1-23-160, 1-23-380, 2-22-20,
3-3-210, 3-5-40, 3-5-50, 3-5-60, 3-5-80, 3-5-100, 3-5-120, 3-5-130,
3-5-140, 3-5-150, 3-5-160, 3-5-170, 3-5-190, 3-5-320, 3-5-330,
3-5-340, 3-5-360, 11-37-200(A), 12-7-1225, 12-7-2415, 15-9-415,
16-23-20(1), 16-27-60, 16-27-80, 23-23-30, 23-28-120,
27-31-100(f), 40-23-20, 44-1-50, 44-1-100, 44-3-110, 44-3-150,
44-29-210, 44-30-10, 44-30-20, 44-40-30, 44-53-620,
44-53-630, 44-53-640, 44-53-650, 44-53-660, 44-53-1320,
44-53-1340, 44-53-1360, 44-53-1380, 44-53-1390, 44-53-1430,
44-53-1440, 44-53-1450, 44-53-1470, 44-55-20, 44-55-40,
44-55-45, 44-55-60, 44-55-2320, 44-55-2360, 44-56-20, 44-56-50,
44-56-130, 44-56-840, 44-61-70, 44-63-30, 44-65-80, 44-67-30,
44-67-50, 44-85-30, 44-85-50, 44-93-20, 44-93-50, 44-93-130,
44-96-170(O)(8), 44-96-250, 44-96-280, 46-13-150, 46-51-20,
47-3-310, 47-3-320, 47-3-420, 47-3-510, 47-3-550, 48-1-85(C),
48-1-110, 48-9-30(3), 48-9-40, 48-9-260, 48-9-270, 48-9-280,
48-9-290, 48-9-300, 48-9-310, 48-9-320, 48-9-1210, 48-9-1230,
48-9-1320, 48-9-1810, 48-9-1820, 48-9-1840, 48-9-1850, 48-11-10,
48-11-15, 48-11-90, 48-11-100, 48-11-185(D), 48-11-190(C),
48-11-210(D), Items (1)(4) and (6) of 48-14-20, 48-14-40(F),
48-14-50, 48-14-60, 48-14-70, 48-14-80, 48-14-85, 48-14-90,
48-14-110, 48-14-120, 48-14-130A(7), 48-14-140, 48-14-160,
48-14-170, 48-20-30, 48-20-40(3), 48-20-210, 48-20-270,
48-20-280, 48-45-40, 48-45-80, 48-55-10, 49-1-15, 49-27-10,
49-27-70, 49-27-80, 50-1-10, 50-1-20, 50-1-30, 50-1-40, 50-1-60,
50-1-70, 50-1-80, 50-1-85, 50-1-90, 50-1-95, 50-1-100, 50-1-110,
50-1-120, 50-1-125, 50-1-130, 50-1-135, 50-1-136, 50-1-137,
50-1-140, 50-1-150, 50-1-160, 50-1-170, 50-1-180, 50-1-190,
50-1-200, 50-1-210, 50-1-220, 50-1-230, 50-1-240, 50-1-250,
50-1-260, 50-1-270, 50-18-10(5), 51-3-145, 51-3-160, 51-15-540,
57-5-870 and 58-3-140 58-33-140 as amended by
this act, are effective July 1, 1994.
(F) Sections 44-1-20, 44-1-40, and 48-20-110, as amended by
this act, are effective February 1, 1995.
(G) Article 1, Chapter 27, Title 38, Article
Articles 1 and 3, Chapter 79, Title 38, Chapter 3,
Title 38, Article 3, Chapter 27, Title 38, Chapter 5, Title 38, Article
5, Chapter 37, Title 38, Article 5 of Chapter 75 of Title 38, Chapter
7 of Title 38, Chapter 9 of Title 38, Article 9 of Chapter 77 of
Title 38, Chapter 11 of Title 38, Chapter 13 of Title 38, Article 13
of Chapter 37 of Title 38, Chapter 26 of Title 38, Chapter 29 of
Title 38, Chapter 31 of Title 38, Chapter 33 of Title 38, Chapter 39
of Title 38, Chapter 41 of Title 38, Chapter 45 of Title 38, Chapter
47 of Title 38, Chapter 61 of Title 38, Chapter 73 of Title 38,
Chapter 81 of Title 38, Chapter 83 of Title 38, Chapter 89 of Title
38, and Sections 2-7-73(A), 2-23-10, 8-13-740(A)(2)(c),
8-13-740(A)(6)(c), 12-23-310, 15-9-270, 15-9-280(c), 15-9-280(a),
15-9-280(d), 15-9-310, 17-13-80, 20-7-2640, 23-9-90,
33-37-460(3)(b), 33-39-460(3)(b), 34-29-160, 37-6-605, 38-1-20,
38-2-10, 38-15-10, 38-15-20, 38-15-30, 38-15-50, 38-17-30,
38-17-50, 38-17-60, 38-17-70, 38-17-90, 38-17-120, 38-17-140,
38-17-150, 38-17-170, 38-19-40, 38-19-50, 38-19-440, 38-19-470,
38-19-480, 38-19-490, 38-19-610, 38-19-640, 38-19-650,
38-19-825, 38-21-10(2), 38-21-20(11), 38-21-30(3), 38-21-50,
38-21-60, 38-21-70, 38-21-90, 38-21-100, 38-21-110, 38-21-120,
38-21-125, 38-21-130, 38-21-140, 38-21-160, 38-21-170,
38-21-190, 38-21-200, 38-21-210, 38-21-220, 38-21-240,
38-21-250, 38-21-260, 38-21-270, 38-21-280, 38-21-290,
38-21-300, 38-21-310, 38-21-320, 38-21-330, 38-21-340,
38-21-350, 38-21-370, 38-23-20, 38-23-40, 38-23-50, 38-23-70,
38-23-80, 38-23-100, 38-25-10, 38-25-110, 38-25-160, 38-25-310,
38-25-510, 38- 25-520, 38-25-540, 38-25-550, 38-25-570,
38-27-310, 38-27-320, 38-27-330(a), 38-27-350, 38-27-360,
38-27-370, 38-27-390, 38-27-400, 38-27-410, 38-27-500(e),
38-27-520, 38-27-640, 38-27-660, 38-27-670, 38-27-680,
38-27-910(a), 38-27-920, 38-27-930(b), 38-27-940(a), 38-27-950,
38-35-10, 38-35-40, 38-35-50, 38-37-60, 38-37-220, 38-37-230,
38-37-240, 38-37-250, 38-37-260, 38-37-300, 38-37-710,
38-37-720, 38-37-900, 38-37-910, 38-37-920, 38-37-1310,
38-37-1360, 38-43-20, 38-43-30, 38-43-40, 38-43-70, 38-43-100,
38-43-105, 38-43-106, 38-43-110, 38-43-130, 38-43-230,
38-43-250, 38-43-260, 38-44-30, 38-44-40(4), 38-44-50, 38-44-70,
38-44-80, 38-46-20(10)(c), 38-46-30, 38-46-60, 38-46-70,
38-46-90, 38-46-100, 38-46-110, 38-46-120, 38-49-20, 38-51-20,
38-51-30, 38-51-60, 38-53-10(11), 38-53-20, 38-53-80, 38-53-90,
38-53-100, 38-53-110, 38-53-130, 38-53-140, 38-53-150,
38-53-160, 38-53-170(f), 38-53-200, 38-53-210, 38-53-220,
38-53-230, 38-53-310, 38-53-320, 38-55-20, 38-55-40, 38-55-60,
38-55-80, 38-55-120, 38-55-140, 38-55-180, 38-57-150(2),
38-57-200, 38-57-210, 38-57-220, 38-57-230, 38-57-240,
38-57-250, 38-57-260, 38-57-270, 38-57-280, 38-57-290,
38-57-300, 38-57-310, 38-59-30, 38-63-220(n), 38-63-250(a),
38-63-520, 38-63-580, 38-63-590, 38-63-600(8) and (11),
38-63-610, 38-63-650, 38-65-60, 38-65-210, 38-67-10(c),(d), and
(f), 38-67-30, 38-67-40, 38-69-120(11), 38-69-230, 38-69-320,
38-70-10(4) and (5), 38-70-20, 38-70-30, 38-70-40, 38-70-50,
38-70-60, 38-71-70, 38-71-190, 38-71-310, 38-71-315, 38-71-320,
38-71-325, 38-71-330(7), 38-71-335(B), 38-71-340, 38-71-370,
38-71-410, 38-71-510, 38-71-530, 38-71-540, 38-71-550(a)
38-71-550(b), 38-71-720, 38-71-730(6), 38-71-735,
38-71-750, 38-71-920(6),(11)(c), and (12), 38-71-950(B),
38-71-970, 38-71-980, 38-71-1010(6), 38-71-1020, 38-71-1110,
38-72-40, 38-72-60(A), (C)(3), and (F)(1)(a), 38-74-10(13),
38-74-20, 38-74-60(C)(2), 38-74-70, 38-75-230, 38-75-750(a)(5),
38-75-780, 38-75-930, 38-75-940, 38-75-950, 38-75-960,
38-75-980, 38-77-10(1), 38-77-30(12), 38-77-110(A), 38-77-115,
38-77-120, 38-77-150, 38-77-200, 38-77-260, 38-77-280,
38-77-320, 38-77-330, 38-77-350(A), 38-77-520, 38-77-530,
38-77-570, 38-77-580, 38-77-590(a),(b),(e),(f), and (g), 38-77-600,
38-77-610, 38-79-430, 38-85-70, 38-85-80, 38-87-20(1), (8)(h), and
(11)(c)(ii), 38-87-30, 38-87-40, 38-87-50(D), 38-87-80, 38-87-110,
38-87-140, 44-2-75, 44-6-5, 44-6-10, 44-6-30, 44-6-40, 44-6-45,
44-6-50, 44-6-70, 44-6-80, 44-6-90, 44-6-100, 44-6-140, 44-6-146,
44-6-150, 44-6-155, 44-6-160, 44-6-170, 44-6-180, 44-6-190,
44-6-220, 44-6-300, 44-6-310, 44-6-320, 44-6-400, 44-6-410,
44-6-420, 44-6-430, 44-6-440, 44-6-460, 44-6-470, 44-6-500,
44-6-520, 44-6-530, and 59-53-2050, as amended by this act, are
effective July 1, 1995.
(H) Articles 3, 5, 7, 9, and 11 of Chapter 1 of Title 13, Chapter
2 of Title 13, Chapter 6 of Title 23, Article 5 of Chapter 23 of Title
1, Chapter 30 of Title 1, and Sections 1-3-215, 2-47-60, 2-68-50,
12-2-5, 12-4-15, 12-4-400, 12-4-410, 12-27-35,
12-27-1265, 23-3-15, 23-3-25, 44-20-225, 51-1-300, 51-1-310,
51-1-500, 51-1-510, 56-1-3350, 56-1-3360, 56-1-3370, 56-1-3380,
56-1-3390, 56-1-3400, 56-3-4710, 56-3-4720, 56-3-4730,
56-3-4740, 56-5-4160(H), 57-1-310, 57-1-320, 57-1-325, 57-1-330,
57-1-340, 57-1-350, 57-1-410, 57-1-430, 57-1-440, 57-1-450,
57-1-490, 57-3-110, 57-3-120, 57-3-600, 57-3-780, and 58-3-26, as
added by this act, are effective July 1, 1993.
(I) Sections 40-73-15 and 41-3-610, as added by this act, are
effective February 1, 1994.
(J) Chapter 4 of Title 48, Chapter 22 of Title 48, and Sections
1-23-111, 47-5-30, 48-9-15, 48-9-45, 49-1-16, and 50-1-5, as added
by this act, are effective July 1, 1994.
(K) Section 38-1-30, as added by this act, is effective July 1,
1995.
(L) SECTIONS 99A, 253A, 343(B), 345, 495,
784, 785, 786, 787, 813A, 815, 996, 997, 1143, 1179, 1226, 1243,
1281, 1436, 1437, 1543, 1544, 1545, 1546, 1581, 1601, 1604,
1605, 1612, 1613, 1614, 1615, 1616, 1617 and 1618 are effective
July 1, 1993.
(M) Section 345 is effective February 1, 1994.
(N) SECTIONS 99B, 253B, 1144, 1180, 1227, 1244, 1273, and
1282 are effective July 1, 1994.
(O) SECTIONS 496, 502, 813B, 816, 1145, and 1587 are
effective July 1, 1995."
SECTION 287. References in Titles 20 and 43 of the 1976
Code to the Director of the Department of Social Services mean the
State Director of the Department of Social Services so as to
distinguish the State Director from County Directors. References in
Titles 20 and 43 of the 1976 Code to State Commissioner or
Commissioner of the Department of Social Services mean the State
Director of the Department of Social Services. The Code
Commissioner shall change references in the 1976 Code to conform
to this act and such changes must be included in the next printing
of replacement volumes or cumulative supplements.
SECTION 288. References in the the 1976 Code to the Director
of the Department of Insurance mean the Chief Insurance
Commissioner and references to the deputy director of the
Department of Insurance mean the designee of the Chief Insurance
Commissioner. The Code Commissioner shall change references in
the 1976 Code to conform with this act, and such changes must be
included in the next printing of replacement volumes or cumulative
supplements.
SECTION 289. References in the 1976 Code to the Board of
Probation, Parole and Pardon Services mean Board of Paroles and
Pardons. The Code Commissioner shall change references in the
1976 Code to conform to this act, and such changes must be
included in the next printing of replacement volumes or cumulative
supplements.
SECTION 290. References in the 1976 Code to Department of
Revenue and Taxation mean Department of Revenue. The Code
Commissioner shall change references in the 1976 Code to conform
to this act, and such changes must be included in the next printing
of replacement volumes or cumulative supplements.
SECTION 291. References in the 1976 Code to the
Commissioner of Labor or Commissioner of the Department of
Labor mean the Director of the Department of Labor, Licensing,
and Regulation. The Code Commissioner shall change references in
the 1976 Code to conform with this act, and such changes must be
included in the next printing of replacement volumes or cumulative
supplements.
SECTION 292. (A) Chapter 19 of Title 6, Chapter 61 of Title
40, Sections 41-15-310, 43-21-150, 44-6-60, 48-9-230, 49-5-130,
49-21-80, and Chapter 17 of Title 51 are repealed upon approval by
the Governor.
(B) Chapter 5 of Title 12 is repealed effective February 1, 1995.
(C) Sections 43-21-120 and 43-21-140 are repealed effective
July 1, 1995.
SECTION 293. Section 14-1-205 of the 1976 Code, as last
amended by Section 36A, Part II, Act 497 of 1994, is further
amended to read:
"Section 14-1-205. Except as provided in Sections
17-15-260, 34-11-90, 50-1-150, 50-1-170, and 56-5-4160, on
January 1, 1995, 56 percent of all costs, fees, fines, penalties,
forfeitures, and other revenues generated by the circuit courts and
the family courts must be remitted to the county in which the
proceeding is instituted and 44 percent of the revenues must be
delivered to the county treasurer to be remitted monthly by the
fifteenth day of each month to the State Treasurer on forms and in
a manner prescribed by him. When a payment is made to the
county in installments, the state's portion must be remitted to the
State Treasurer by the county treasurer on a monthly basis. The 44
percent remitted to the State Treasurer must be deposited as
follows:
(1) 72.93 66.93 percent to the general fund;
(2) 6.00 percent to the Law Enforcement Enhancement
Account;
(3) 16.73 percent to the Department of Mental Health
to be used exclusively for the treatment and rehabilitation of drug
addicts within the department's addiction center facilities;
(3) (4) 10.34 percent to the State Office of
Victim Assistance under the South Carolina Victim's Compensation
Fund.
The Law Enforcement Enhancement Account must be
maintained in the State Treasurer's Office. In expending the funds
deposited to the Law Enforcement Enhancement Account, the
Director of the Department of Public Safety must consider the need
for (1) additional other funded troopers and officers, (2) pay shift
differential for troopers and officers, and (3) continuing education
and training for troopers and officers. Any unexpended balance on
June 30 of the prior fiscal year may be retained and carried forward
to the current fiscal year.
In any court, when sentencing a person convicted of an offense
which has proximately caused physical injury or death to the victim,
the court may order the defendant to pay a restitution charge
commensurate with the offense committed, not to exceed ten
thousand dollars, to the Victim's Compensation Fund."
SECTION 294. Section 17-5-130 of the 1976 Code, as last
amended by Act 307 of 1994, is further amended to read:
"Section 17-5-130. (A) A coroner in this State must have
the following qualifications:
(1) be a citizen of the United States;
(2) be a resident of the county in which he seeks the office of
coroner for at least one year before qualifying for the election to the
office;
(3) be a registered voter;
(4) attained the age of twenty-one years before the date of
qualifying for election to the office;
(5) obtained a high school diploma or its recognized
equivalent; and
(6) have not been convicted of a felony offense or any
offense involving moral turpitude contrary to the laws of this State,
any other state, or the United States.
(B) Each person serving as a coroner in his first term is required
to complete a basic training session to be determined by the
South Carolina Law Enforcement Training Council (council)
Director of the South Carolina Department of Public Safety
(director). This basic training session must be completed no
later than the end of the calendar year following his election as
coroner. A person appointed to fill the unexpired term in the office
of coroner must complete a basic training session to be determined
by the council director within one calendar year of
the date of appointment. This section shall not be construed to
require an individual to repeat the basic training session if he has
successfully completed the session prior to his election or
appointment as coroner. A coroner who is unable to attend this
training session when offered because of an emergency or
extenuating circumstances shall, within one year from the date the
disability or cause terminates, complete the standard basic training
session required of coroners. A coroner who does not fulfill the
obligations of this subsection is subject to suspension by the
Governor until the coroner completes the training session.
(C) A person holding the office of coroner or deputy coroner
who was elected, appointed, or employed prior to January 1, 1994,
and who has served continuously since that time must attend a
minimum of sixteen hours training annually as may be
selected determined by the council
director on or before December 31, 1995. Each year
thereafter, all coroners and deputy coroners must complete a
minimum of sixteen hours training annually as may be selected by
the council director. Certification or records of
attendance or training shall be maintained as directed by the
council Department of Public Safety.
(D)(1) The basis for the minimum annual requirement of
in-service training is the calendar year. A coroner who
satisfactorily completes the basic training session in accordance with
the provisions of subsection (B) is excused from the minimum
annual training requirements of subsection (C) for the calendar year
in which the basic training session is completed.
(2) The Board of Directors of the South Carolina Coroners
Association, in its discretion, may grant a waiver of the
requirements of the annual in-service training upon presentation of
evidence by a coroner that he was unable to complete the training
due to an emergency or extenuating circumstances.
(3) A coroner who fails to complete the minimum annual
in-service training required by this section may be suspended from
office, without pay, by the Governor for ninety days. The
Governor may continue to suspend a coroner until he completes the
annual minimum in-service training required in this section. The
Governor shall appoint, at the time of the coroner's suspension, a
qualified person to perform as acting coroner during the suspension.
(E) The provisions of items (4) and (5) of subsection (A) do not
apply to a coroner serving on the effective date of this section.
(F) The South Carolina Law Enforcement Training
Council director must appoint a Coroners Training
Advisory Committee to assist in the determination of training
requirements for coroners and deputy coroners. The committee
shall consist of no fewer than five coroners and at least one
physician trained in forensic pathology as recommended by the
South Carolina Coroners Association. The members of the
committee shall serve without compensation.
(G) Expenses of all training authorized or required by this
section must be paid by the county the coroner or deputy coroner
serves, and the South Carolina Law Enforcement Training
Council Department of Public Safety is authorized to
set and collect fees for such training."
SECTION 295. Section 40-65-40, as last amended by Act No.
181 of 1993, is further amended to read:
"Section 40-65-40. Each member of the advisory council
may receive twenty-five dollars an amount as provided
for in the annual General Appropriations Act for each day
actually engaged in the services of the department and shall be
reimbursed for all actual travelling, incidental, and clerical
expenses necessarily incurred in carrying out the provisions of this
chapter. These expenses shall be paid from general appropriations
of the department."
SECTION 296. Section 40-65-60, as last amended by Act No.
181 of 1993, is further amended to read:
"Section 40-65-60. The advisory council shall hold at
least two regular meetings each year. Special meetings may be held
as the bylaws of the council provide. The council shall elect
annually a chairman and a vice-chairman. The chief soil
scientist, SCLRCC State Soil Scientist, SCDNR, shall
serve as secretary-treasurer of the council. A quorum of the council
shall consist of three members."
SECTION 297. Section 44-1-40 of the 1976 Code, as amended
by Act No. 181 of 1993 and as becomes effective February 1, 1995,
is further amended to read:
"Section 44-1-40. The board shall select a director
commissioner for the department who shall serve a
four-year term and who shall have such authority and perform such
duties as may be directed by the board. The salary of the
director commissioner shall be fixed by the board,
upon approval of the State Budget and Control Board. For any
vacancy occurring in the office of director
commissioner on or after February 1, 1995, the board, after
consultation with and approval by the Governor, must submit the
name of its appointee to the Senate for the Senate's advice and
consent. On or after February 1, 1995, the board may remove a
director commissioner only after consultation with
and approval by the Governor."
SECTION 298. Section 44-53-710 of the 1976 Code is amended
to read:
"Section 44-53-710. The South Carolina Department of
Health and Environmental Control shall have exclusive control over
the controlled substance methadone, except for the South Carolina
Department of Mental Health facilities or treatment programs
licensed by the South Carolina Department of Mental Health
and approved by the South Carolina Department of Alcohol
and Other Drug Abuse Services or the federal
government."
SECTION 299. Section 44-53-730 of the 1976 Code is amended
to read:
"Section 44-53-730. No supplier, distributor, or
manufacturer shall sell or distribute methadone or its salts to
anyone other than a facility licensed by the Department of Health
and Environmental Control or the South Carolina Department of
Mental Health, except as provided in Section
44-53-720."
SECTION 300. Section 44-53-740 of the 1976 Code is amended
to read:
"Section 44-53-740. The Board of Health and
Environmental Control shall promulgate regulations as may be
necessary to carry out the provisions of this article in
coordination with the Department of Alcohol and Other Drug Abuse
Services. Such These regulations shall not
include criteria for admission to, continuance in, or discharge from
any methadone maintenance program in a facility of the South
Carolina Department of Mental Health or facility licensed by the
South Carolina Department of Mental Health and approved by
the South Carolina Department of Alcohol and Other Drug
Abuse Services or the federal government."
SECTION 301. References in the 1976 Code to the Director of
the Department of Health and Environmental Control mean the
Commissioner of the Department of Health and Environmental
Control. The Code Commissioner shall change references in the
1976 Code to conform with this act, and such changes must be
included in the next printing of replacement volumes or cumulative
supplements.
SECTION 302. Title 36 of the 1976 Code is amended by
adding:
"CHAPTER 4A.
Uniform Commercial Code--Funds Transfers
SOUTH CAROLINA REPORTER'S INTRODUCTORY
NOTE
In the spring of 1995, the South Carolina Senate Judiciary
Committee requested the South Carolina Law Institute to appoint a
committee (the "Committee") to evaluate the impact of
proposed uniform Article 4A on South Carolina law and to assist
the Senate Judiciary Committee in considering Article 4A for
adoption in South Carolina. The Committee was comprised of
lawyers, professors, bankers, corporate users of wire transfer
services, and a representative of the Office of the Consumer
Advocate. The Reporter and a research assistant provided support
to the Committee. After review of the uniform statute and the
Official Comments thereto, versions of Article 4A adopted by other
states, South Carolina statutory and common law, and scholarly
commentary, the Committee unanimously recommended that South
Carolina adopt the uniform version of Article 4A.
Uniformity Of Article 4A.
Funds transfers are effected across state lines and often through
different funds transfer systems. If participants in a funds transfer
are to be certain of their obligations and liabilities, uniformity of
funds transfer rules is imperative.
Virtually all jurisdictions have adopted Article 4A without change
from the proposed uniform statute. The Committee reviewed all
non-uniform provisions enacted by other states and determined that
most of the provisions were not substantive. The Committee found
no reason to vary Article 4A from the uniform version and
accordingly recommended that South Carolina adopt the uniform
version of Article 4A.
Like other Articles in the Uniform Commercial Code, the
uniform version of Article 4A includes "Official
Comments" addressing the purpose and meaning of the
various sections and the policy considerations on which they are
based. Because the Official Comments provide information of high
value in interpreting and understanding Article 4A, the Committee
recommended that they be included as part of South Carolina's
Article 4A legislation. The majority of adopting states have done
likewise. Only Oklahoma, one of the first states to enact Article
4A, adopted comprehensive state reporter's comments in addition to
the Official Comments. See OKLA. STAT. ANN. tit. 12A Section
4A (West Supp. 1995). In order to avoid any implication of
non-uniformity that might be raised by the content of Reporter's
Comments, the Committee decided to include South Carolina
Reporter's Comments only after sections which call for comment.
The Impact Of Article 4A On South Carolina Law.
At the time of the Committee's deliberations, no South Carolina
statutory or case law dealt with funds transfers. Very few published
opinions from other jurisdictions were available. Prior to the
general enactment of Article 4A, courts decided funds transfer cases
using various common law principles, or by analogy to Article 4 of
the U.C.C. As a result, pre-Article 4A case law provides little
guidance as to how a court would likely decide a funds transfer
issue. For a discussion of how cases decided prior to the enactment
of Article 4A might have been decided, see OKLA. STAT. ANN.
tit. 12A, Section 4A (West Supp. 1995); Tony M. Davis,
Comparing Article 4A with Existing Case Law on Funds Transfers:
A Series of Case Studies, 42 ALA. L. REV. 823 (1991).
The enactment of Article 4A in South Carolina, although
important to clarify national uniformity in regulation of funds
transfers, should work little practical change in South Carolina law
for two reasons. First, for funds transfer issues arising after 1989,
it is likely that a South Carolina court would have looked to Article
4A for guidance. See, Manufacturas Int'l Ltda. v. Manufacturers
Hanover Trust Co., 792 F.Supp. 180 (E.D.N.Y. 1992) (declining to
apply Article 4A but discussing its provisions by analogy). Second,
South Carolina banks using Fedwire as a funds transfer system have
operated under Article 4A since January 1, 1991. Regulation J,
which governs funds transfers through Fedwire, and which
incorporated Article 4A as of that date, preempts inconsistent state
law.
NATIONAL CONFERENCE OF
COMMISSIONERS
ON UNIFORM STATE LAWS
PREFATORY NOTE
The National Conference of Commissioners on Uniform State
laws and The American Law Institute have approved a new Article
4A to the Uniform Commercial Code. Comments that follow each
of the sections of the statute are intended as official comments.
They explain in detail the purpose and meaning of the various
sections and the policy considerations on which they are based.
Description of transaction covered by Article 4A.
There are a number of mechanisms for making payments through
the banking system. Most of these mechanisms are covered in
whole or part by state or federal statutes. In terms of number of
transactions, payments made by check or credit card are the most
common payment methods. Payment by check is covered by
Articles 3 and 4 of the UCC, and some aspects of payment by
credit card are covered by federal law. In recent years electronic
funds transfers have been increasingly common in consumer
transactions. For example, in some cases a retail customer can pay
for purchases by use of an access or debit card inserted in a
terminal at the retail store that allows the bank account of the
customer to be instantly debited. Some aspects of these
point-of-sale transactions and other consumer payments that are
effected electronically are covered by a federal statute, the
Electronic Fund Transfer Act (EFTA). If any part of a funds
transfer is covered by EFTA, the entire funds transfer is excluded
from Article 4A.
Another type of payment, commonly referred to as a wholesale
wire transfer, is the primary focus of Article 4A. Payments that are
covered by Article 4A are overwhelmingly between business or
financial institutions. The dollar volume of payments made by wire
transfer far exceeds the dollar volume of payments made by other
means. The volume of payments by wire transfer over the two
principal wire payment systems -- the Federal Reserve wire transfer
network (Fedwire) and the New York Clearing House Interbank
Payments Systems (CHIPS) -- exceeds one trillion dollars per day.
Most payments carried out by use of automated clearing houses are
consumer payments covered by EFTA and therefore not covered by
Article 4A. There is, however, a significant volume of
non-consumer ACH payments that closely resemble wholesale wire
transfers. These payments are also covered by Article 4A.
There is some resemblance between payments made by wire
transfer and payments made by other means such as paper-based
checks and credit cards or electronically-based consumer payments,
but there are also many differences. Article 4A excludes from its
coverage these other payment mechanisms. Article 4A follows a
policy of treating the transaction that it covers--a "funds
transfer"--as a unique method of payment that is governed by
unique principles of law that address the operational and policy
issues presented by this kind of payment.
The funds transfer that is covered by Article 4A is not a complex
transaction and can be illustrated by the following example which is
used throughout the Prefatory Note as a basis for discussion. X, a
debtor, wants to pay an obligation owed to Y. Instead of delivering
to Y a negotiable instrument such as a check or some other writing
such as a credit card slip that enables Y to obtain payment from a
bank, X transmits an instruction to X's bank to credit a sum of
money to the bank account of Y. In most cases X's bank and Y's
bank are different banks. X's bank may carry out X's instruction
by instructing Y's bank to credit Y's account in the amount that X
requested. The instruction that X issues to its bank is a
"payment order." X is the "sender" of the
payment order and X's bank is the "receiving bank"
with respect to X's order. Y is the "beneficiary" of X's
order. When X's bank issues an instruction to Y's bank to carry
out X's payment order, X's bank "executes" X's order.
The instruction of X's bank to Y's bank is also a payment order.
With respect to that order, X's bank is the sender, Y's bank is the
receiving bank, and Y is the beneficiary. The entire series of
transactions by which X pays Y is known as the "funds
transfer." With respect to the funds transfer, X is the
"originator," X's bank is the "originator's
bank," Y is the "beneficiary" and Y's bank is the
"beneficiary's bank." In more complex transactions
there are one or more additional banks known as
"intermediary banks" between X's bank and Y's bank.
In the funds transfer the instruction contained in the payment order
of X to its bank is carried out by a series of payment orders by
each bank in the transmission chain to the next bank in the chain
until Y's bank receives a payment order to make the credit to Y's
account. In most cases, the payment order of each bank to the next
bank in the chain is transmitted electronically, and often the
payment order of X to its bank is also transmitted electronically, but
the means of transmission does not have any legal significance. A
payment order may be transmitted by any means, and in some cases
the payment order is transmitted by a slow means such as first class
mail. To reflect this fact, the broader term "funds
transfer" rather than the narrower term "wire
transfer" is used in Article 4A to describe the overall payment
transaction.
Funds transfers are divided into two categories determined by
whether the instruction to pay is given by the person making
payment or the person receiving payment. If the instruction is
given by the person making the payment, the transfer is commonly
referred to as a "credit transfer." If the instruction is
given by the person receiving payment, the transfer is commonly
referred to as a "debit transfer." Article 4A governs
credit transfers and excludes debit transfers.
Why is Article 4A needed?
There is no comprehensive body of law that defines the rights
and obligations that arise from wire transfers. Some aspects of wire
transfers are governed by rules of the principal transfer systems.
Transfers made by Fedwire are governed by Federal Reserve
Regulation J and transfers over CHIPS are governed by the CHIPS
rules. Transfers made by means of automated clearing houses are
governed by uniform rules adopted by various associations of banks
in various parts of the nation or by Federal Reserve rules or
operating circulars. But the various funds transfer system rules
apply to only limited aspects of wire transfer transactions. The
resolution of the many issues that are not covered by funds transfer
system rules depends on contracts of the parties, to the extent that
they exist, or principles of law applicable to other payment
mechanisms that might be applied by analogy. The result is a great
deal of uncertainty. There is no consensus about the juridical
nature of a wire transfer and consequently of the rights and
obligations that are created. Article 4A is intended to provide the
comprehensive body of law that we do not have today.
Characteristics of a funds transfer.
There are a number of characteristics of funds transfers covered
by Article 4A that have influenced the drafting of the statute. The
typical funds transfer involves a large amount of money.
Multimillion dollar transactions are commonplace. The originator
of the transfer and the beneficiary are typically sophisticated
business or financial organizations. High speed is another
predominant characteristic. Most funds transfers are completed on
the same day, even in complex transactions in which there are
several intermediary banks in the transmission chain. A funds
transfer is a highly efficient substitute for payments made by the
delivery of paper instruments. Another characteristic is extremely
low cost. A transfer that involves many millions of dollars can be
made for a price of a few dollars. Price does not normally vary
very much or at all with the amount of the transfer. This system of
pricing may not be feasible if the bank is exposed to very large
liabilities in connection with the transaction. The pricing system
assumes that the price reflects primarily the cost of the mechanical
operation performed by the bank, but in fact, a bank may have
more or less potential liability with respect to a funds transfer
depending upon the amount of the transfer. Risk of loss to banks
carrying out a funds transfer may arise from a variety of causes. In
some funds transfers, there may be extensions of very large
amounts of credit for short periods of time by the banks that carry
out a funds transfer. If a payment order is issued to the
beneficiary's bank, it is normal for the bank to release funds to the
beneficiary immediately. Sometimes, payment to the beneficiary's
bank by the bank that issued the order to the beneficiary's bank is
delayed until the end of the day. If that payment is not received
because of the insolvency of the bank that is obliged to pay, the
beneficiary's bank may suffer a loss. There is also risk of loss if a
bank fails to execute the payment order of a customer, or if the
order is executed late. There also may be an error in the payment
order issued by a bank that is executing the payment order of its
customer. For example, the error might relate to the amount to be
paid or to the identity of the person to be paid. Because the dollar
amounts involved in funds transfers are so large, the risk of loss if
something goes wrong in a transaction may also be very large. A
major policy issue in the drafting of Article 4A is that of
determining how risk of loss is to be allocated given the price
structure in the industry.
Concept of acceptance and effect of acceptance by the
beneficiary's bank.
Rights and obligations under Article 4A arise as the result of
"acceptance" of a payment order by the bank to which
the order is addressed. Section 4A-209. The effect of acceptance
varies depending upon whether the payment order is issued to the
beneficiary's bank or to a bank other than the beneficiary's bank.
Acceptance by the beneficiary's bank is particularly important
because it defines when the beneficiary's bank becomes obligated to
the beneficiary to pay the amount of the payment order. Although
Article 4A follows convention in using the term "funds
transfer" to identify the payment from X to Y that is
described above, no money or property right of X is actually
transferred to Y. X pays Y by causing Y's bank to become
indebted to Y in the amount of the payment. This debt arises when
Y's bank accepts the payment order that X's bank issued to Y's
bank to execute X's order. If the funds transfer was carried out by
use of one or more intermediary banks between X's bank and Y's
bank, Y's bank becomes indebted to Y when Y's bank accepts the
payment order issued to it by an intermediary bank. The funds
transfer is completed when this debt is incurred. Acceptance, the
event that determines when the debt of Y's bank to Y arises, occurs
(i) when Y's bank pays Y or notifies Y of receipt of the payment
order, or (ii) when Y's bank receives payment from the bank that
issued a payment order to Y's bank.
The only obligation of the beneficiary's bank that results from
acceptance of a payment order is to pay the amount of the order to
the beneficiary. No obligation is owed to either the sender of the
payment order accepted by the beneficiary's bank or to the
originator of the funds transfer. The obligation created by
acceptance by the beneficiary's bank is for the benefit of the
beneficiary. The purpose of the sender's payment order is to effect
payment by the originator to the beneficiary and that purpose is
achieved when the beneficiary's bank accepts the payment order.
Section 4A-405 states rules for determining when the obligation of
the beneficiary's bank to the beneficiary has been paid.
Acceptance by a bank other than the beneficiary's bank.
In the funds transfer described above, what is the obligation of
X's bank when it receives X's payment order? Funds transfers by a
bank on behalf of its customer are made pursuant to an agreement
or arrangement that may or may not be reduced to a formal
document signed by the parties. It is probably true that in most
cases there is either no express agreement or the agreement
addresses only some aspects of the transaction. Substantial risk is
involved in funds transfers and a bank may not be willing to give
this service to all customers, and may not be willing to offer it to
any customer unless certain safeguards against loss such as security
procedures are in effect. Funds transfers often involve the giving of
credit by the receiving bank to the customer, and that also may
involve an agreement. These considerations are reflected in Article
4A by the principle that, in the absence of a contrary agreement, a
receiving bank does not incur liability with respect to a payment
order until it accepts it. If X and X's bank in the hypothetical case
had an agreement that obliged the bank to act on X's payment
orders and the bank failed to comply with the agreement, the bank
can be held liable for breach of the agreement. But apart from any
obligation arising by agreement, the bank does not incur any
liability with respect to X's payment order until the bank accepts
the order. X's payment order is treated by Article 4A as a request
by X to the bank to take action that will cause X's payment order
to be carried out. That request can be accepted by X's bank by
"executing" X's payment order. Execution occurs when
X's bank sends a payment order to Y's bank intended by X's bank
to carry out the payment order of X. X's bank could also execute
X's payment order by issuing a payment order to an intermediary
bank instructing the intermediary bank to instruct Y's bank to make
the credit to Y's account. In that case execution and acceptance of
X's order occur when the payment order of X's bank is sent to the
intermediary bank. When X's bank executes X's payment order the
bank is entitled to receive payment from X and may debit an
authorized account of X. If X's bank does not execute X's order
and the amount of the order is covered by a withdrawable credit
balance in X's authorized account, the bank must pay X interest on
the money represented by X's order unless X is given prompt
notice of rejection of the order. Section 4A-210(b).
Bank error in funds transfers.
If a bank, other than the beneficiary's bank, accepts a payment
order, the obligations and liabilities are owed to the originator of
the funds transfer. Assume in the example stated above, that X's
bank executes X's payment order by issuing a payment order to an
intermediary bank that executes the order of X's bank by issuing a
payment order to Y's bank. The obligations of X's bank with
respect to execution are owed to X. The obligations of the
intermediary bank with respect to execution are also owed to X.
Section 4A-302 states standards with respect to the time and manner
of execution of payment orders. Section 4A-305 states the measure
of damages for improper execution. It also states that a receiving
bank is liable for damages if it fails to execute a payment order that
it was obliged by express agreement to execute. In each case
consequential damages are not recoverable unless an express
agreement of the receiving bank provides for them. The policy
basis for this limitation is discussed in Comment 2 to Section
4A-305.
Error in the consummation of a funds transfer is not uncommon.
There may be a discrepancy in the amount that the originator orders
to be paid to the beneficiary and the amount that the beneficiary's
bank is ordered to pay. For example, if the originator's payment
order instructs payment of $100,000 and the payment order of the
originator's bank instructs payment of $1,000,000, the originator's
bank is entitled to receive only $100,000 from the originator and
has the burden of recovering the additional $900,000 paid to the
beneficiary by mistake. In some cases, the originator's bank or an
intermediary bank instructs payment to a beneficiary other than the
beneficiary stated in the originator's payment order. If the wrong
beneficiary is paid, the bank that issued the erroneous payment
order is not entitled to receive payment of the payment order that it
executed and has the burden of recovering the mistaken payment.
The originator is not obliged to pay its payment order. Section
4A-303 and Section 4A-207 state rules for determining the rights
and obligations of the various parties to the funds transfer in these
cases and in other typical cases in which error is made.
Pursuant to Section 4A-402(c) the originator is excused from the
obligation to pay the originator's bank if the funds transfer is not
completed, i.e. payment by the originator to the beneficiary is not
made. Payment by the originator to the beneficiary occurs when
the beneficiary's bank accepts a payment order for the benefit of
the beneficiary of the originator's payment order. Section 4A-406.
If for any reason that acceptance does not occur, the originator is
not required to pay the payment order that it issued or, if it already
paid, is entitled to refund of the payment with interest. This
"money-back guarantee" is an important protection of
the originator of a funds transfer. The same rule applies to any
other sender in the funds transfer. Each sender's obligation to pay
is excused if the beneficiary's bank does not accept a payment order
for the benefit of the beneficiary of that sender's order. There is an
important exception to this rule. It is common practice for the
originator of a funds transfer to designate the intermediary bank or
banks through which the funds transfer is to be routed. The
originator's bank is required by Section 4A-302 to follow the
instruction of the originator with respect to intermediary banks. If
the originator's bank sends a payment order to the intermediary
bank designated in the originator's order and the intermediary bank
causes the funds transfer to miscarry by failing to execute the
payment order or by instructing payment to the wrong beneficiary,
the originator's bank is not required to pay its payment order and if
it has already paid it is entitled to recover payment from the
intermediary bank. This remedy is normally adequate, but if the
originator's bank has already paid its order and the intermediary
bank has suspended payments or is not permitted by law to refund
payment, the originator's bank will suffer a loss. Since the
originator required the originator's bank to use the failed
intermediary bank, Section 4A-402(e) provides that in this case the
originator is obliged to pay its payment order and has a claim
against the intermediary bank for the amount of the order. The
same principle applies to any other sender that designates a
subsequent intermediary bank.
Unauthorized payment orders.
An important issue addressed in Section 4A-202 and Section
4A-203 is how the risk of loss from unauthorized payment orders is
to be allocated. In a large percentage of cases, the payment order
of the originator of the funds transfer is transmitted electronically to
the originator's bank. In these cases it may not be possible for the
bank to know whether the electronic message has been authorized
by its customer. To ensure that no unauthorized person is
transmitting messages to the bank, the normal practice is to
establish security procedures that usually involve the use of codes
or identifying numbers or words. If the bank accepts a payment
order that purports to be that of its customer after verifying its
authenticity by complying with a security procedure agreed to by
the customer and the bank, the customer is bound to pay the order
even if it was not authorized. But there is an important limitation
on this rule. The bank is entitled to payment in the case of an
unauthorized order only if the court finds that the security
procedure was a commercially reasonable method of providing
security against unauthorized payment orders. The customer can
also avoid liability if it can prove that the unauthorized order was
not initiated by an employee or other agent of the customer having
access to confidential security information or by a person who
obtained that information from a source controlled by the customer.
The policy issues are discussed in the comments following Section
4A-203. If the bank accepts an unauthorized payment order
without verifying it in compliance with a security procedure, the
loss falls on the bank.
Security procedures are also important in cases of error in the
transmission of payment orders. There may be an error by the
sender in the amount of the order, or a sender may transmit a
payment order and then erroneously transmit a duplicate of the
order. Normally, the sender is bound by the payment order even if
it is issued by mistake. But in some cases an error of this kind can
be detected by a security procedure. Although the receiving bank is
not obliged to provide a security procedure for the detection of
error, if such a procedure is agreed to by the bank Section 4A-205
provides that if the error is not detected because the receiving bank
does not comply with the procedure, any resulting loss is borne by
the bank failing to comply with the security procedure.
Insolvency losses.
Some payment orders do not involve the granting of credit to the
sender by the receiving bank. In those cases, the receiving bank
accepts the sender's order at the same time the bank receives
payment of the order. This is true of a transfer of funds by
Fedwire or of cases in which the receiving bank can debit a funded
account of the sender. But in some cases the granting of credit is
the norm. This is true of a payment order over CHIPS. In a
CHIPS transaction the receiving bank usually will accept the order
before receiving payment from the sending bank. Payment is
delayed until the end of the day when settlement is made through
the Federal Reserve System. If the receiving bank is an
intermediary bank, it will accept by issuing a payment order to
another bank and the intermediary bank is obliged to pay that
payment order. If the receiving bank is the beneficiary's bank, the
bank usually will accept by releasing funds to the beneficiary before
the bank has received payment. If a sending bank suspends
payments before settling its liabilities at the end of the day, the
financial stability of banks that are net creditors of the insolvent
bank may also be put into jeopardy, because the dollar volume of
funds transfers between the banks may be extremely large. With
respect to two banks that are dealing with each other in a series of
transactions in which each bank is sometimes a receiving bank and
sometimes a sender, the risk of insolvency can be managed if
amounts payable as a sender and amounts receivable as a receiving
bank are roughly equal. But if these amounts are significantly out
of balance, a net creditor bank may have a very significant credit
risk during the day before settlement occurs. The Federal Reserve
System and the banking community are greatly concerned with this
risk, and various measures have been instituted to reduce this credit
exposure. Article 4A also addresses this problem. A receiving
bank can always avoid this risk by delaying acceptance of a
payment order until after the bank has received payment. For
example, if the beneficiary's bank credits the beneficiary's account
it can avoid acceptance by not notifying the beneficiary of the
receipt of the order or by notifying the beneficiary that the credit
may not be withdrawn until the beneficiary's bank receives
payment. But if the beneficiary's bank releases funds to the
beneficiary before receiving settlement, the result in a funds transfer
other than a transfer by means of an automated clearing house or
similar provisional settlement system is that the beneficiary's bank
may not recover the funds if it fails to receive settlement. This rule
encourages the banking system to impose credit limitations on
banks that issue payment orders. These limitations are already in
effect. CHIPS has also proposed a loss-sharing plan to be adopted
for implementation in the second half of 1990 under which CHIPS
participants will be required to provide funds necessary to complete
settlement of the obligations of one or more participants that are
unable to meet settlement obligations. Under this plan, it will be a
virtual certainty that there will be settlement on CHIPS in the event
of failure by a single bank. Section 4A-403(b) and (c) are also
addressed to reducing risks of insolvency. Under these provisions,
the amount owed by a failed bank with respect to payment orders it
issued is the net amount owing after setting off amounts owed to
the failed bank with respect to payment orders it received. This
rule allows credit exposure to be managed by limitations on the net
debit position of a bank.
PART 1
SUBJECT MATTER AND DEFINITIONS
Section 36-4A-101. Short title.
This chapter may be cited as Uniform Commercial Code--Funds
Transfers.
Section 36-4A-102. Subject matter.
Except as otherwise provided in Section 36-4A-108, this chapter
applies to funds transfers defined in Section 36-4A-104.
OFFICIAL COMMENT
Article 4A governs a specialized method of payment referred to
in the Article as a funds transfer but also commonly referred to in
the commercial community as a wholesale wire transfer. A funds
transfer is made by means of one or more payment orders. The
scope of Article 4A is determined by the definitions of
"payment order" and "funds transfer" found
in Section 4A-103 and Section 4A-104.
The funds transfer governed by Article 4A is in large part a
product of recent and developing technological changes. Before
this Article was drafted there was no comprehensive body of law --
statutory or judicial -- that defined the juridical nature of a funds
transfer or the rights and obligations flowing from payment orders.
Judicial authority with respect to funds transfers is sparse,
undeveloped, and not uniform. Judges have had to resolve disputes
by referring to general principles of common law or equity, or they
have sought guidance in statutes such as Article 4 which are
applicable to other payment methods. But attempts to define rights
and obligations in funds transfers by general principles or by
analogy to rights and obligations in negotiable instrument law or the
law of check collection have not been satisfactory.
In the drafting of Article 4A, a deliberate decision was made to
write on a clean slate and to treat a funds transfer as a unique
method of payment to be governed by unique rules that address the
particular issues raised by this method of payment. A deliberate
decision was also made to use precise and detailed rules to assign
responsibility, define behavioral norms, allocate risks, and establish
limits on liability, rather than to rely on broadly stated, flexible
principles. In the drafting of these rules, a critical consideration
was that the various parties to funds transfers need to be able to
predict risk with certainty, to insure against risk, to adjust
operational and security procedures, and to price funds transfer
services appropriately. This consideration is particularly important
given the very large amounts of money that are involved in funds
transfers.
Funds transfers involve competing interests -- those of the banks
that provide funds transfer services and the commercial and
financial organizations that use the services, as well as the public
interest. These competing interests were represented in the drafting
process and they were thoroughly considered. The rules that
emerged represent a careful and delicate balancing of those interests
and are intended to be the exclusive means of determining the
rights, duties, and liabilities of the affected parties in any situation
covered by particular provisions of the Article. Consequently,
resort to principles of law or equity outside of Article 4A is not
appropriate to create rights, duties and liabilities inconsistent with
those stated in this Article.
Section 36-4A-103. Payment order -- Definitions.
(a) In this chapter:
(1) `Payment order' means an instruction of a sender to a
receiving bank, transmitted orally, electronically, or in writing, to
pay, or to cause another bank to pay, a fixed or determinable
amount of money to a beneficiary if:
(i) the instruction does not state a condition to payment
to the beneficiary other than time of payment;
(ii) the receiving bank is to be reimbursed by debiting an
account of, or otherwise receiving payment from, the sender; and
(iii) the instruction is transmitted by the sender directly to
the receiving bank or to an agent, funds-transfer system, or
communication system for transmittal to the receiving bank.
(2) `Beneficiary' means the person to be paid by the
beneficiary's bank.
(3) `Beneficiary's bank' means the bank identified in a
payment order in which an account of the beneficiary is to be
credited pursuant to the order or which otherwise is to make
payment to the beneficiary if the order does not provide for
payment to an account.
(4) `Receiving bank' means the bank to which the sender's
instruction is addressed.
(5) `Sender' means the person giving the instruction to the
receiving bank.
(b) If an instruction complying with subsection (a)(1) is to
make more than one payment to a beneficiary, the instruction is a
separate payment order with respect to each payment.
(c) A payment order is issued when it is sent to the receiving
bank.
OFFICIAL COMMENT
This section is discussed in the Comment following Section
4A-104.
Section 36-4A-104. Funds transfer -- Definitions.
In this chapter:
(a) `Funds transfer' means the series of transactions,
beginning with the originator's payment order, made for the
purpose of making payment to the beneficiary of the order. The
term includes any payment order issued by the originator's bank or
an intermediary bank intended to carry out the originator's payment
order. A funds transfer is completed by acceptance by the
beneficiary's bank of a payment order for the benefit of the
beneficiary of the originator's payment order.
(b) `Intermediary bank' means a receiving bank other than
the originator's bank or the beneficiary's bank.
(c) `Originator' means the sender of the first payment order
in a funds transfer.
(d) `Originator's bank' means (i) the receiving bank to which
the payment order of the originator is issued if the originator is not
a bank, or (ii) the originator if the originator is a bank.
OFFICIAL COMMENT
1. Article 4A governs a method of payment in which the person
making payment (the "originator") directly transmits an
instruction to a bank either to make payment to the person receiving
payment (the "beneficiary") or to instruct some other
bank to make payment to the beneficiary. The payment from the
originator to the beneficiary occurs when the bank that is to pay the
beneficiary becomes obligated to pay the beneficiary. There are
two basic definitions: "Payment order" stated in Section
4A-103 and "Funds transfer" stated in Section 4A-104.
These definitions, other related definitions, and the scope of Article
4A can best be understood in the context of specific fact situations.
Consider the following cases:
Case #1. X, which has an account in Bank A, instructs
that bank to pay $1,000,000 to Y's account in Bank A. Bank A
carries out X's instruction by making a credit of $1,000,000 to Y's
account and notifying Y that the credit is available for immediate
withdrawal. The instruction by X to Bank A is a "payment
order" which was issued when it was sent to Bank A. Section
4A-103(a)(1) and (c). X is the "sender" of the payment
order and Bank A is the "receiving bank." Section
4A-103(a)(5) and (a)(4). Y is the "beneficiary" of the
payment order and Bank A is the "beneficiary's bank."
Section 4A-103(a)(2) and (a)(3). When Bank A notified Y of
receipt of the payment order, Bank A "accepted" the
payment order. Section 4A-209(b)(1). When Bank A accepted the
order, it incurred an obligation to Y to pay the amount of the order.
Section 4A-404(a). When Bank A accepted X's order, X incurred
an obligation to pay Bank A the amount of the order. Section
4A-402(b). Payment from X to Bank A would normally be made
by a debit to X's account in Bank A. Section 4A-403(a)(3). At the
time Bank A incurred the obligation to pay Y, payment of
$1,000,000 by X to Y was also made. Section 4A-406(a). Bank A
paid Y when it gave notice to Y of a withdrawable credit of
$1,000,000 to Y's account. Section 4A-405(a). The overall
transaction, which comprises the acts of X and Bank A, in which
the payment by X to Y is accomplished is referred to as the
"funds transfer." Section 4A-104(a). In this case only
one payment order was involved in the funds transfer. A
one-payment-order funds transfer is usually referred to as a
"book transfer" because the payment is accomplished by
the receiving bank's debiting the account of the sender and
crediting the account of the beneficiary in the same bank. X, in
addition to being the sender of the payment order to Bank A, is the
"originator" of the funds transfer. Section 4A-104(c).
Bank A is the "originator's bank" in the funds transfer
as well as the beneficiary's bank. Section 4A-104(d).
Case #2. Assume the same facts as in Case #1 except
that X instructs Bank A to pay $1,000,000 to Y's account in Bank
B. With respect to this payment order, X is the sender, Y is the
beneficiary, and Bank A is the receiving bank. Bank A carries out
X's order by instructing Bank B to pay $1,000,000 to Y's account.
This instruction is a payment order in which Bank A is the sender,
Bank B is the receiving bank, and Y is the beneficiary. When Bank
A issued its payment order to Bank B, Bank A
"executed" X's order. Section 4A-301(a). In the funds
transfer, X is the originator, Bank A is the originator's bank, and
Bank B is the beneficiary's bank. When Bank A executed X's
order, X incurred an obligation to pay Bank A the amount of the
order. Section 4A-402(c). When Bank B accepts the payment
order issued to it by Bank A, Bank B incurs an obligation to Y to
pay the amount of the order (Section 4A-404 (a)) and Bank A
incurs an obligation to pay Bank B. Section 4A-402(b).
Acceptance by Bank B also results in payment of $1,000,000 by X
to Y. Section 4A-406(a). In this case two payment orders are
involved in the funds transfer.
Case #3. Assume the same facts as in Case #2 except
that Bank A does not execute X's payment order by issuing a
payment order to Bank B. One bank will not normally act to carry
out a funds transfer for another bank unless there is a preexisting
arrangement between the banks for transmittal of payment orders
and settlement of accounts. For example, if Bank B is a foreign
bank with which Bank A has no relationship, Bank A can utilize a
bank that is a correspondent of both Bank A and Bank B. Assume
Bank A issues a payment order to Bank C to pay $1,000,000 to Y's
account in Bank B. With respect to this order, Bank A is the
sender, Bank C is the receiving bank, and Y is the beneficiary.
Bank C will execute the payment order of Bank A by issuing a
payment order to Bank B to pay $1,000,000 to Y's account in Bank
B. With respect to Bank C's payment order, Bank C is the sender,
Bank B is the receiving bank, and Y is the beneficiary. Payment of
$1,000,000 by X to Y occurs when Bank B accepts the payment
order issued to it by Bank C. In this case the funds transfer
involves three payment orders. In the funds transfer, X is the
originator, Bank A is the originator's bank, Bank B is the
beneficiary's bank, and Bank C is an "intermediary
bank." Section 4A-104 (b). In some cases there may be
more than one intermediary bank, and in those cases each
intermediary bank is treated like Bank C in Case #3.
As the three cases demonstrate, a payment under Article 4A
involves an overall transaction, the funds transfer, in which the
originator, X, is making payment to the beneficiary, Y, but the
funds transfer may encompass a series of payment orders that are
issued in order to effect the payment initiated by the originator's
payment order.
In some cases the originator and the beneficiary may be the same
person. This will occur, for example, when a corporation orders a
bank to transfer funds from an account of the corporation in that
bank to another account of the corporation in that bank or in some
other bank. In some funds transfers the first bank to issue a
payment order is a bank that is executing a payment order of a
customer that is not a bank. In this case the customer is the
originator. In other cases, the first bank to issue a payment order is
not acting for a customer, but is making a payment for its own
account. In that event the first bank to issue a payment order is the
originator as well as the originator's bank.
2. "Payment order" is defined in Section
4A-103(a)(1) as an instruction to a bank to pay, or to cause another
bank to pay, a fixed or determinable amount of money. The bank
to which the instruction is addressed is known as the
"receiving bank." Section 4A-103(a)(4).
"Bank" is defined in Section 4A-105(a)(2). The effect
of this definition is to limit Article 4A to payments made through
the banking system. A transfer of funds made by an entity outside
the banking system is excluded. A transfer of funds through an
entity other than a bank is usually a consumer transaction involving
relatively small amounts of money and a single contract carried out
by transfers of cash or a cash equivalent such as a check.
Typically, the transferor delivers cash or a check to the company
making the transfer, which agrees to pay a like amount to a person
designated by the transferor. Transactions covered by Article 4A
typically involve very large amounts of money in which several
transactions involving several banks may be necessary to carry out
the payment. Payments are normally made by debits or credits to
bank accounts. Originators and beneficiaries are almost always
business organizations and the transfers are usually made to pay
obligations. Moreover, these transactions are frequently done on
the basis of very short-term credit granted by the receiving bank to
the sender of the payment order. Wholesale wire transfers involve
policy questions that are distinct from those involved in
consumer-based transactions by nonbanks.
3. Further limitations on the scope of Article 4A are found in
the three requirements found in subparagraphs (i), (ii), and (iii) of
Section 4A-103(a)(1). Subparagraph (i) states that the instruction to
pay is a payment order only if it "does not state a condition to
payment to the beneficiary other than time of payment." An
instruction to pay a beneficiary sometimes is subject to a
requirement that the beneficiary perform some act such as delivery
of documents. For example, a New York bank may have issued a
letter of credit in favor of X, a California seller of goods to be
shipped to the New York bank's customer in New York. The terms
of the letter of credit provide for payment to X if documents are
presented to prove shipment of the goods. Instead of providing for
presentment of the documents to the New York bank, the letter of
credit states that they may be presented to a California bank that
acts as an agent for payment. The New York bank sends an
instruction to the California bank to pay X upon presentation of the
required documents. The instruction is not covered by Article 4A
because payment to the beneficiary is conditional upon receipt of
shipping documents. The function of banks in a funds transfer
under Article 4A is comparable to the role of banks in the
collection and payment of checks in that it is essentially mechanical
in nature. The low price and high speed that characterize funds
transfers reflect this fact. Conditions to payment by the California
bank other than time of payment impose responsibilities on that
bank that go beyond those in Article 4A funds transfers. Although
the payment by the New York bank to X under the letter of credit
is not covered by Article 4A, if X is paid by the California bank,
payment of the obligation of the New York bank to reimburse the
California bank could be made by an Article 4A funds transfer. In
such a case there is a distinction between the payment by the New
York bank to X under the letter of credit and the payment by the
New York bank to the California bank. For example, if the New
York bank pays its reimbursement obligation to the California bank
by a Fedwire naming the California bank as beneficiary (see
Comment 1 to Section 4A-107), payment is made to the California
bank rather than to X. That payment is governed by Article 4A and
it could be made either before or after payment by the California
bank to X. The payment by the New York bank to X under the
letter of credit is not governed by Article 4A and it occurs when the
California bank, as agent of the New York bank, pays X. No
payment order was involved in that transaction. In this example, if
the New York bank had erroneously sent an instruction to the
California bank unconditionally instructing payment to X, the
instruction would have been an Article 4A payment order. If the
payment order was accepted (Section 4A-209(b)) by the California
bank, a payment by the New York bank to X would have resulted
(Section 4A-406(a)). But Article 4A would not prevent recovery of
funds from X on the basis that X was not entitled to retain the
funds under the law of mistake and restitution, letter of credit law,
or other applicable law.
4. Transfers of funds made through the banking system are
commonly referred to as either "credit" transfers or
"debit" transfers. In a credit transfer the instruction to
pay is given by the person making payment. In a debit transfer the
instruction to pay is given by the person receiving payment. The
purpose of subparagraph (ii) of subsection (a)(1) of Section 4A-103
is to include credit transfers in Article 4A and to exclude debit
transfers. All of the instructions to pay in the three cases described
in Comment 1 fall within subparagraph (ii). Take Case #2 as an
example. With respect to X's instruction given to Bank A, Bank A
will be reimbursed by debiting X's account or otherwise receiving
payment from X. With respect to Bank A's instruction to Bank B,
Bank B will be reimbursed by receiving payment from Bank A. In
a debit transfer, a creditor, pursuant to authority from the debtor, is
enabled to draw on the debtor's bank account by issuing an
instruction to pay to the debtor's bank. If the debtor's bank pays, it
will be reimbursed by the debtor rather than by the person giving
the instruction. For example, the holder of an insurance policy may
pay premiums by authorizing the insurance company to order the
policyholder's bank to pay the insurance company. The order to
pay may be in the form of a draft covered by Article 3, or it might
be an instruction to pay that is not an instrument under that Article.
The bank receives reimbursement by debiting the policyholder's
account. Or, a subsidiary corporation may make payments to its
parent by authorizing the parent to order the subsidiary's bank to
pay the parent from the subsidiary's account. These transactions
are not covered by Article 4A because subparagraph (2) is not
satisfied. Article 4A is limited to transactions in which the account
to be debited by the receiving bank is that of the person in whose
name the instruction is given.
If the beneficiary of a funds transfer is the originator of the
transfer, the transfer is governed by Article 4A if it is a credit
transfer in form. If it is in the form of a debit transfer it is not
governed by Article 4A. For example, Corporation has accounts in
Bank A and Bank B. Corporation instructs Bank A to pay to
Corporation's account in Bank B. The funds transfer is governed
by Article 4A. Sometimes, Corporation will authorize Bank B to
draw on Corporation's account in Bank A for the purpose of
transferring funds into Corporation's account in Bank B. If
Corporation also makes an agreement with Bank A under which
Bank A is authorized to follow instructions of Bank B, as agent of
Corporation, to transfer funds from Customer's account in Bank A,
the instruction of Bank B is a payment order of Customer and is
governed by Article 4A. This kind of transaction is known in the
wire-transfer business as a "drawdown transfer." If
Corporation does not make such an agreement with Bank A and
Bank B instructs Bank A to make the transfer, the order is in form
a debit transfer and is not governed by Article 4A. These debit
transfers are normally ACH transactions in which Bank A relies on
Bank B's warranties pursuant to ACH rules, including the warranty
that the transfer is authorized.
5. The principal effect of subparagraph (iii) of subsection (a) of
Section 4A-103 is to exclude from Article 4A payments made by
check or credit card. In those cases the instruction of the debtor to
the bank on which the check is drawn or to which the credit card
slip is to be presented is contained in the check or credit card slip
signed by the debtor. The instruction is not transmitted by the
debtor directly to the debtor's bank. Rather, the instruction is
delivered or otherwise transmitted by the debtor to the creditor who
then presents it to the bank either directly or through bank
collection channels. These payments are governed by Articles 3
and 4 and federal law. There are, however, limited instances in
which the paper on which a check is printed can be used as the
means of transmitting a payment order that is covered by Article
4A. Assume that Originator instructs Originator's Bank to pay
$10,000 to the account of Beneficiary in Beneficiary's Bank. Since
the amount of Originator's payment order is small, if Originator's
Bank and Beneficiary's Bank do not have an account relationship,
Originator's Bank may execute Originator's order by issuing a
teller's check payable to Beneficiary's Bank for $10,000 along with
instructions to credit Beneficiary's account in that amount. The
instruction to Beneficiary's Bank to credit Beneficiary's account is a
payment order. The check is the means by which Originator's
Bank pays its obligation as sender of the payment order. The
instruction of Originator's Bank to Beneficiary's Bank might be
given in a letter accompanying the check or it may be written on
the check itself. In either case the instruction to Beneficiary's Bank
is a payment order but the check itself (which is an order to pay
addressed to the drawee rather than to Beneficiary's Bank) is an
instrument under Article 3 and is not a payment order. The check
can be both the means by which Originator's Bank pays its
obligation under Section 4A-402(b) to Beneficiary's Bank and the
means by which the instruction to Beneficiary's Bank is transmitted.
6. Most payments covered by Article 4A are commonly referred
to as wire transfers and usually involve some kind of electronic
transmission, but the applicability of Article 4A does not depend
upon the means used to transmit the instruction of the sender.
Transmission may be by letter or other written communication, oral
communication, or electronic communication. An oral
communication is normally given by telephone. Frequently the
message is recorded by the receiving bank to provide evidence of
the transaction, but apart from problems of proof there is no need to
record the oral instruction. Transmission of an instruction may be a
direct communication between the sender and the receiving bank or
through an intermediary such as an agent of the sender, a
communication system such as international cable, or a funds
transfer system such as CHIPS, SWIFT, or an automated clearing
house.
Section 36-4A-105. Other definitions.
(a) In this chapter:
(1) `Authorized account' means a deposit account of a
customer in a bank designated by the customer as a source of
payment of payment orders issued by the customer to the bank. If
a customer does not so designate an account, any account of the
customer is an authorized account if payment of a payment order
from that account is not inconsistent with a restriction on the use of
that account.
(2) `Bank' means a person engaged in the business of
banking and includes a savings bank, savings and loan association,
credit union, and trust company. A branch or separate office of a
bank is a separate bank for purposes of this chapter.
(3) `Customer' means a person, including a bank, having
an account with a bank or from whom a bank has agreed to receive
payment orders.
(4) `Funds-transfer business day' of a receiving bank
means the part of a day during which the receiving bank is open for
the receipt, processing, and transmittal of payment orders and
cancellations and amendments of payment orders.
(5) `Funds-transfer system' means a wire transfer network,
automated clearing house, or other communication system of a
clearing house or other association of banks through which a
payment order by a bank may be transmitted to the bank to which
the order is addressed.
(6) `Good faith' means honesty in fact and the observance
of reasonable commercial standards of fair dealing.
(7) `Prove' with respect to a fact means to meet the burden
of establishing the fact (Section 36-1-201(8)).
(b) Other definitions applying to this chapter and the sections
in which they appear are:
`Acceptance' Section 36-4A-209
`Beneficiary' Section 36-4A-103
`Beneficiary's bank' Section 36-4A-103
`Executed' Section 36-4A-301
`Execution date' Section 36-4A-301
`Funds transfer' Section 36-4A-104
`Funds-transfer system rule' Section 36-4A-501
`Intermediary bank' Section 36-4A-104
`Originator' Section 36-4A-104
`Originator's bank' Section 36-4A-104
`Payment by beneficiary's bank
to beneficiary' Section 36-4A-405
`Payment by originator to
beneficiary' Section 36-4A-406
`Payment by sender
to receiving bank' Section 36-4A-403
`Payment date' Section 36-4A-401
`Payment order' Section 36-4A-103
`Receiving bank' Section 36-4A-103
`Security procedure' Section 36-4A-201
`Sender' Section 36-4A-103
(c) The following definitions in Chapter 4 apply to this
chapter:
`Clearing house' Section 36-4-104
`Item' Section 36-4-104
`Suspends payments' Section 36-4-104
(d) In addition, Chapter 1 contains general definitions and
principles of construction and interpretation applicable throughout
this chapter.
OFFICIAL COMMENT
1. The definition of "bank" in subsection (a)(2)
includes some institutions that are not commercial banks. The
definition reflects the fact that many financial institutions now
perform functions previously restricted to commercial banks,
including acting on behalf of customers in funds transfers. Since
many funds transfers involve payment orders to or from foreign
countries, the definition also covers foreign banks. The definition
also includes Federal Reserve Banks. Funds transfers carried out by
Federal Reserve Banks are described in Comments 1 and 2 to
Section 4A-107.
2. Funds transfer business is frequently transacted by banks
outside of general banking hours. Thus, the definition of banking
day in Section 4-104(1)(c) cannot be used to describe when a bank
is open for funds transfer business. Subsection (a)(4) defines a new
term, "funds transfer business day," which is applicable
to Article 4A. The definition states, "is open for the receipt,
processing, and transmittal of payment orders and cancellations and
amendments of payment orders." In some cases it is possible
to electronically transmit payment orders and other communications
to a receiving bank at any time. If the receiving bank is not open
for the processing of an order when it is received, the
communication is stored in the receiving bank's computer for
retrieval when the receiving bank is open for processing. The use
of the conjunctive makes clear that the defined term is limited to
the period during which all functions of the receiving bank can be
performed, i.e., receipt, processing, and transmittal of payment
orders, cancellations, and amendments.
3. Subsection (a)(5) defines "funds transfer system."
The term includes a system such as CHIPS which provides for
transmission of a payment order as well as settlement of the
obligation of the sender to pay the order. It also includes
automated clearing houses, operated by a clearing house or other
association of banks, which process and transmit payment orders of
banks to other banks. In addition the term includes organizations
that provide only transmission services such as SWIFT. The
definition also includes the wire transfer network and automated
clearing houses of Federal Reserve Banks. Systems of the Federal
Reserve Banks, however, are treated differently from systems of
other associations of banks. Funds transfer systems other than
systems of the Federal Reserve Banks are treated in Article 4A as a
means of communication of payment orders between participating
banks. Section 4A-206. The Comment to that section and the
Comment to Section 4A-107 explain how Federal Reserve Banks
function under Article 4A. Funds transfer systems are also able to
promulgate rules binding on participating banks that, under Section
4A-501, may supplement or in some cases may even override
provisions of Article 4A.
4. Subsection (d) incorporates definitions stated in Article 1 as
well as principles of construction and interpretation stated in that
Article. Included is Section 1-103. The last paragraph of the
Comment to Section 4A-102 is addressed to the issue of the extent
to which general principles of law and equity should apply to
situations covered by provisions of Article 4A.
Section 36-4A-106. Time payment order is received.
(a) The time of receipt of a payment order or communication
canceling or amending a payment order is determined by the rules
applicable to receipt of a notice stated in Section 36-1-201(27). A
receiving bank may fix a cut-off time or times on a funds-transfer
business day for the receipt and processing of payment orders and
communications canceling or amending payment orders. Different
cut-off times may apply to payment orders, cancellations, or
amendments, or to different categories of payment orders,
cancellations, or amendments. A cut-off time may apply to senders
generally or different cut-off times may apply to different senders
or categories of payment orders. If a payment order or
communication canceling or amending a payment order is received
after the close of a funds-transfer business day or after the
appropriate cut-off time on a funds-transfer business day, the
receiving bank may treat the payment order or communication as
received at the opening of the next funds-transfer business day.
(b) If this chapter refers to an execution date or payment date
or states a day on which a receiving bank is required to take action,
and the date or day does not fall on a funds-transfer business day,
the next day that is a funds-transfer business day is treated as the
date or day stated, unless the contrary is stated in this chapter.
OFFICIAL COMMENT
The time that a payment order is received by a receiving bank
usually defines the payment date or the execution date of a payment
order. Section 4A-401 and Section 4A-301. The time of receipt of
a payment order, or communication canceling or amending a
payment order is defined in subsection (a) by reference to the rules
stated in Section 1-201(27). Thus, time of receipt is determined by
the same rules that determine when a notice is received. Time of
receipt, however, may be altered by a cut-off time.
Section 36-4A-107. Federal reserve regulations and operating
circulars.
Regulations of the Board of Governors of the Federal Reserve
System and operating circulars of the Federal Reserve Banks
supersede any inconsistent provision of this chapter to the extent of
the inconsistency.
COMMENT
1. Funds transfers under Article 4A may be made, in whole or
in part, by payment orders through a Federal Reserve Bank in what
is usually referred to as a transfer by Fedwire. If Bank A, which
has an account in Federal Reserve Bank X, wants to pay $1,000,000
to Bank B, which has an account in Federal Reserve Bank Y, Bank
A can issue an instruction to Reserve Bank X requesting a debit of
$1,000,000 to Bank A's Reserve account and an equal credit to
Bank B's Reserve account. Reserve Bank X will debit Bank A's
account and will credit the account of Reserve Bank Y. Reserve
Bank X will issue an instruction to Reserve Bank Y requesting a
debit of $1,000,000 to the account of Reserve Bank X and an equal
credit to Bank B's account in Reserve Bank Y. Reserve Bank Y
will make the requested debit and credit and will give Bank B an
advice of credit. The definition of "bank" in Section
4A-105(a)(2) includes both Reserve Bank X and Reserve Bank Y.
Bank A's instruction to Reserve Bank X to pay money to Bank B is
a payment order under Section 4A-103(a)(1). Bank A is the sender
and Reserve Bank X is the receiving bank. Bank B is the
beneficiary of Bank A's order and of the funds transfer. Bank A is
the originator of the funds transfer and is also the originator's bank.
Section 4A-104(c) and (d). Reserve Bank X, an intermediary bank
under Section 4A-104(b), executes Bank A's order by sending a
payment order to Reserve Bank Y instructing that bank to credit the
Federal Reserve account of Bank B. Reserve Bank Y is the
beneficiary's bank.
Suppose the transfer of funds from Bank A to Bank B is part of
a larger transaction in which Originator, a customer of Bank A,
wants to pay Beneficiary, a customer of Bank B. Originator issues
a payment order to Bank A to pay $1,000,000 to the account of
Beneficiary in Bank B. Bank A may execute Originator's order by
means of Fedwire which simultaneously transfers $1,000,000 from
Bank A to Bank B and carries a message instructing Bank B to pay
$1,000,000 to the account of Y. The Fedwire transfer is carried out
as described in the previous paragraph, except that the beneficiary
of the funds transfer is Beneficiary rather than Bank B. Reserve
Bank X and Reserve Bank Y are intermediary banks. When
Reserve Bank Y advises Bank B of the credit to its Federal Reserve
account, it will also instruct Bank B to pay to the account of
Beneficiary. The instruction is a payment order to Bank B which is
the beneficiary's bank. When Reserve Bank Y advises Bank B of
the credit to its Federal Reserve account Bank B receives payment
of the payment order issued to it by Reserve Bank Y. Section
4A-403(a)(1). The payment order is automatically accepted by
Bank B at the time it receives the payment order of Reserve Bank
Y. Section 4A-209(b)(2). At the time of acceptance by Bank B
payment by Originator to Beneficiary also occurs. Thus, in a
Fedwire transfer, payment to the beneficiary's bank, acceptance by
the beneficiary's bank, and payment by the originator to the
beneficiary all occur simultaneously by operation of law at the time
the payment order to the beneficiary's bank is received.
If Originator orders payment to the account of Beneficiary in
Bank C rather than Bank B, the analysis is somewhat modified.
Bank A may not have any relationship with Bank C and may not be
able to make payment directly to Bank C. In that case, Bank A
could send a Fedwire instructing Bank B to instruct Bank C to pay
Beneficiary. The analysis is the same as the previous case except
that Bank B is an intermediary bank and Bank C is the
beneficiary's bank.
2. A funds transfer can also be made through a Federal Reserve
Bank in an automated clearing house transaction. In a typical case,
Originator instructs Originator's Bank to pay to the account of
Beneficiary in Beneficiary's Bank. Originator's instruction to pay a
particular beneficiary is transmitted to Originator's Bank along with
many other instructions for payment to other beneficiaries by many
different beneficiary's banks. All of these instructions are
contained in a magnetic tape or other electronic device.
Transmission of instructions to the various beneficiary's banks
requires that Originator's instructions be processed and repackaged
with instructions of other originators so that all instructions to a
particular beneficiary's bank are transmitted together to that bank.
The repackaging is done in processing centers usually referred to as
automated clearing houses. Automated clearing houses are operated
either by Federal Reserve Banks or by other associations of banks.
If Originator's Bank chooses to execute Originator's instructions by
transmitting them to a Federal Reserve Bank for processing by the
Federal Reserve Bank, the transmission to the Federal Reserve Bank
results in the issuance of payment orders by Originator's Bank to
the Federal Reserve Bank, which is an intermediary bank.
Processing by the Federal Reserve Bank will result in the issuance
of payment orders by the Federal Reserve Bank to Beneficiary's
Bank as well as payment orders to other beneficiary's banks making
payments to carry out Originator's instructions.
3. Although the terms of Article 4A apply to funds transfers
involving Federal Reserve Banks, federal preemption would make
ineffective any Article 4A provision that conflicts with federal law.
The payments activities of the Federal Reserve Banks are governed
by regulations of the Federal Reserve Board and by operating
circulars issued by the Reserve Banks themselves. In some
instances, the operating circulars are issued pursuant to a Federal
Reserve Board regulation. In other cases, the Reserve Bank issues
the operating circular under its own authority under the Federal
Reserve Act, subject to review by the Federal Reserve Board.
Section 4A-107 states that Federal Reserve Board regulations and
operating circulars of the Federal Reserve Banks supersede any
inconsistent provision of Article 4A to the extent of the
inconsistency. Federal Reserve Board regulations, being valid
exercises of regulatory authority pursuant to a federal statute, take
precedence over state law if there is an inconsistency. Childs v.
Federal Reserve Bank of Dallas, 719 F.2d 812 (5th Cir. 1983),
reh. den. 724 F.2d 127 (5th Cir. 1984). Section 4A-107 treats
operating circulars as having the same effect whether issued under
the Reserve Bank's own authority or under a Federal Reserve Board
regulation.
Section 36-4A-108. Exclusion of consumer transactions
governed by federal law.
This chapter does not apply to a funds transfer any part of which
is governed by the Electronic Fund Transfer Act of 1978 (Title XX,
Public Law 95-630, 92 Stat. 3728, 15 U.S.C. Section 1693 et seq.)
as amended from time to time.
OFFICIAL COMMENT
The Electronic Fund Transfer Act of 1978 is a federal statute that
covers a wide variety of electronic funds transfers involving
consumers. The types of transfers covered by the federal statute are
essentially different from the wholesale wire transfers that are the
primary focus of Article 4A. Section 4A-108 excludes a funds
transfer from Article 4A if any part of the transfer is covered by the
federal law. Existing procedures designed to comply with federal
law will not be affected by Article 4A. The effect of Section
4A-108 is to make Article 4A and EFTA mutually exclusive. For
example, if a funds transfer is to a consumer account in the
beneficiary's bank and the funds transfer is made in part by use of
Fedwire and in part by means of an automated clearing house,
EFTA applies to the ACH part of the transfer but not to the
Fedwire part. Under Section 4A-108, Article 4A does not apply to
any part of the transfer. However, in the absence of any law to
govern the part of the funds transfer that is not subject to EFTA, a
court might apply appropriate principles from Article 4A by
analogy.
PART 2
ISSUE AND ACCEPTANCE OF PAYMENT
ORDER
Section 36-4A-201. Security procedure.
`Security procedure' means a procedure established by agreement
of a customer and a receiving bank for the purpose of (i) verifying
that a payment order or communication amending or canceling a
payment order is that of the customer, or (ii) detecting error in the
transmission or the content of the payment order or communication.
A security procedure may require the use of algorithms or other
codes, identifying words or numbers, encryption, callback
procedures, or similar security devices. Comparison of a signature
on a payment order or communication with an authorized specimen
signature of the customer is not by itself a security procedure.
OFFICIAL COMMENT
A large percentage of payment orders and communications
amending or canceling payment orders are transmitted
electronically, and it is standard practice to use security procedures
that are designed to assure the authenticity of the message. Security
procedures can also be used to detect error in the content of
messages or to detect payment orders that are transmitted by
mistake as in the case of multiple transmission of the same payment
order. Security procedures might also apply to communications that
are transmitted by telephone or in writing. Section 4A-201 defines
these security procedures. The definition of security procedure
limits the term to a procedure "established by agreement of a
customer and a receiving bank." The term does not apply to
procedures that the receiving bank may follow unilaterally in
processing payment orders. The question of whether loss that may
result from the transmission of a spurious or erroneous payment
order will be borne by the receiving bank or the sender or
purported sender is affected by whether a security procedure was or
was not in effect and whether there was or was not compliance with
the procedure. Security procedures are referred to in Sections
4A-202 and 4A-203, which deal with authorized and verified
payment orders, and Section 4A-205, which deals with erroneous
payment orders.
Section 36-4A-202. Authorized and verified payment orders.
(a) A payment order received by the receiving bank is the
authorized order of the person identified as sender if that person
authorized the order or is otherwise bound by it under the law of
agency.
(b) If a bank and its customer have agreed that the
authenticity of payment orders issued to the bank in the name of the
customer as sender will be verified pursuant to a security procedure,
a payment order received by the receiving bank is effective as the
order of the customer, whether or not authorized, if (i) the security
procedure is a commercially reasonable method of providing
security against unauthorized payment orders, and (ii) the bank
proves that it accepted the payment order in good faith and in
compliance with the security procedure and any written agreement
or instruction of the customer restricting acceptance of payment
orders issued in the name of the customer. The bank is not
required to follow an instruction that violates a written agreement
with the customer or notice of which is not received at a time and
in a manner affording the bank a reasonable opportunity to act on it
before the payment order is accepted.
(c) Commercial reasonableness of a security procedure is a
question of law to be determined by considering the wishes of the
customer expressed to the bank, the circumstances of the customer
known to the bank, including the size, type, and frequency of
payment orders normally issued by the customer to the bank,
alternative security procedures offered to the customer, and security
procedures in general use by customers and receiving banks
similarly situated. A security procedure is deemed to be
commercially reasonable if (i) the security procedure was chosen by
the customer after the bank offered, and the customer refused, a
security procedure that was commercially reasonable for that
customer, and (ii) the customer expressly agreed in writing to be
bound by any payment order, whether or not authorized, issued in
its name and accepted by the bank in compliance with the security
procedure chosen by the customer.
(d) The term `sender' in this chapter includes the customer in
whose name a payment order is issued if the order is the authorized
order of the customer under subsection (a), or it is effective as the
order of the customer under subsection (b).
(e) This section applies to amendments and cancellations of
payment orders to the same extent it applies to payment orders.
(f) Except as provided in this section and in Section
36-4A-203(a)(1), rights and obligations arising under this section or
Section 36-4A-203 may not be varied by agreement.
OFFICIAL COMMENT
This section is discussed in the Comment following Section
4A-203.
Section 36-4A-203. Unenforceability of certain verified payment
orders.
(a) If an accepted payment order is not, under Section
36-4A-202(a), an authorized order of a customer identified as
sender, but is effective as an order of the customer pursuant to
Section 36-4A-202(b), the following rules apply:
(1) By express written agreement, the receiving bank may
limit the extent to which it is entitled to enforce or retain payment
of the payment order.
(2) The receiving bank is not entitled to enforce or retain
payment of the payment order if the customer proves that the order
was not caused, directly or indirectly, by a person (i) entrusted at
any time with duties to act for the customer with respect to payment
orders or the security procedure, or (ii) who obtained access to
transmitting facilities of the customer or who obtained, from a
source controlled by the customer and without authority of the
receiving bank, information facilitating breach of the security
procedure, regardless of how the information was obtained or
whether the customer was at fault. Information includes any access
device, computer software, or the like.
(b) This section applies to amendments of payment orders to
the same extent it applies to payment orders.
OFFICIAL COMMENT
1. Some person will always be identified as the sender of a
payment order. Acceptance of the order by the receiving bank is
based on a belief by the bank that the order was authorized by the
person identified as the sender. If the receiving bank is the
beneficiary's bank acceptance means that the receiving bank is
obliged to pay the beneficiary. If the receiving bank is not the
beneficiary's bank, acceptance means that the receiving bank has
executed the sender's order and is obliged to pay the bank that
accepted the order issued in execution of the sender's order. In
either case the receiving bank may suffer a loss unless it is entitled
to enforce payment of the payment order that it accepted. If the
person identified as the sender of the order refuses to pay on the
ground that the order was not authorized by that person, what are
the rights of the receiving bank? In the absence of a statute or
agreement that specifically addresses the issue, the question usually
will be resolved by the law of agency. In some cases, the law of
agency works well. For example, suppose the receiving bank
executes a payment order given by means of a letter apparently
written by a corporation that is a customer of the bank and
apparently signed by an officer of the corporation. If the receiving
bank acts solely on the basis of the letter, the corporation is not
bound as the sender of the payment order unless the signature was
that of the officer and the officer was authorized to act for the
corporation in the issuance of payment orders, or some other
agency doctrine such as apparent authority or estoppel causes the
corporation to be bound. Estoppel can be illustrated by the
following example. Suppose P is aware that A, who is
unauthorized to act for P, has fraudulently misrepresented to T that
A is authorized to act for P. T believes A and is about to rely on
the misrepresentation. If P does not notify T of the true facts
although P could easily do so, P may be estopped from denying A's
lack of authority. A similar result could follow if the failure to
notify T is the result of negligence rather than a deliberate decision.
Restatement, Second, Agency Section 8B. Other equitable
principles such as subrogation or restitution might also allow a
receiving bank to recover with respect to an unauthorized payment
order that it accepted. In Gatoil (U.S.A.), Inc. v. Forest Hill
State Bank, 1 U.C.C. Rep. Serv. 2d 171 (D.Md. 1986), a joint
venturer not authorized to order payments from the account of the
joint venture, ordered a funds transfer from the account. The
transfer paid a bona fide debt of the joint venture. Although the
transfer was unauthorized, the court refused to require recredit of
the account because the joint venture suffered no loss. The result
can be rationalized on the basis of subrogation of the receiving
bank to the right of the beneficiary of the funds transfer to receive
the payment from the joint venture.
But in most cases these legal principles give the receiving bank
very little protection in the case of an authorized payment order.
Cases like those just discussed are not typical of the way that most
payment orders are transmitted and accepted, and such cases are
likely to become even less common. Given the large amount of the
typical payment order, a prudent receiving bank will be unwilling to
accept a payment order unless it has assurance that the order is
what it purports to be. This assurance is normally provided by
security procedures described in Section 4A-201.
In a very large percentage of cases covered by Article 4A,
transmission of the payment order is made electronically. The
receiving bank may be required to act on the basis of a message
that appears on a computer screen. Common law concepts of
authority of agent to bind principal are not helpful. There is no
way of determining the identity or the authority of the person who
caused the message to be sent. The receiving bank is not relying
on the authority of any particular person to act for the purported
sender. The case is not comparable to payment of a check by the
drawee bank on the basis of a signature that is forged. Rather, the
receiving bank relies on a security procedure pursuant to which the
authenticity of the message can be "tested" by various
devices which are designed to provide certainty that the message is
that of the sender identified in the payment order. In the wire
transfer business the concept of "authorized" is different
from that found in agency law. In that business a payment order is
treated as the order of the person in whose name it is issued if it is
properly tested pursuant to a security procedure and the order
passes the test.
Section 4A-202 reflects the reality of the wire transfer business.
A person in whose name a payment order is issued is considered to
be the sender of the order if the order is "authorized" as
stated in subsection (a) or if the order is "verified"
pursuant to a security procedure in compliance with subsection (b).
If subsection (b) does not apply, the question of whether the
customer is responsible for the order is determined by the law of
agency. The issue is one of actual or apparent authority of the
person who caused the order to be issued in the name of the
customer. In some cases the law of agency might allow the
customer to be bound by an unauthorized order if conduct of the
customer can be used to find an estoppel against the customer to
deny that the order was unauthorized. If the customer is bound by
the order under any of these agency doctrines, subsection (a) treats
the order as authorized and thus the customer is deemed to be the
sender of the order. In most cases, however, subsection (b) will
apply. In that event there is no need to make an agency law
analysis to determine authority. Under Section 4A-202, the issue of
liability of the purported sender of the payment order will be
determined by agency law only if the receiving bank did not
comply with subsection (b).
2. The scope of Section 4A-202 can be illustrated by the
following cases. Case #1. A payment order purporting to
be that of Customer is received by Receiving Bank, but the order
was fraudulently transmitted by a person who had no authority to
act for Customer. Case #2. An authentic payment order
was sent by Customer, but before the order was received by
Receiving Bank the order was fraudulently altered by an
unauthorized person to change the beneficiary. Case #3.
An authentic payment order was received by Receiving Bank, but
before the order was executed by Receiving Bank a person who had
no authority to act for Customer fraudulently sent a communication
purporting to amend the order by changing the beneficiary. In each
case Receiving Bank acted on the fraudulent communication by
accepting the payment order. These cases are all essentially similar
and they are treated identically by Section 4A-202. In each case
Receiving Bank acted on a communication that it thought was
authorized by Customer when in fact the communication was
fraudulent. No distinction is made between Case #1 in which
Customer took no part at all in the transaction and Case #2 and
Case #3 in which an authentic order was fraudulently altered or
amended by an unauthorized person. If subsection (b) does not
apply, each case is governed by subsection (a). If there are no
additional facts on which an estoppel might be found, Customer is
not responsible in Case #1 for the fraudulently issued payment
order, in Case #2 for the fraudulent alteration, or in Case #3 for the
fraudulent amendment. Thus, in each case Customer is not liable to
pay the order and Receiving Bank takes the loss. The only remedy
of Receiving Bank is to seek recovery from the person who
received payment as beneficiary of the fraudulent order. If there
was verification in compliance with subsection (b), Customer will
take the loss unless Section 4A-203 applies.
3. Subsection (b) of Section 4A-202 is based on the assumption
that losses due to fraudulent payment orders can best be avoided by
the use of commercially reasonable security procedures, and that the
use of such procedures should be encouraged. The subsection is
designed to protect both the customer and the receiving bank. A
receiving bank needs to be able to rely on objective criteria to
determine whether it can safely act on a payment order. Employees
of the bank can be trained to "test" a payment order
according to the various steps specified in the security procedure.
The bank is responsible for the acts of these employees. Subsection
(b)(ii) requires the bank to prove that it accepted the payment order
in good faith and "in compliance with the security
procedure." If the fraud was not detected because the bank's
employee did not perform the acts required by the security
procedure, the bank has not complied. Subsection (b)(ii) also
requires the bank to prove that it complied with any agreement or
instruction that restricts acceptance of payment orders issued in the
name of the customer. A customer may want to protect itself by
imposing limitations on acceptance of payment orders by the bank.
For example, the customer may prohibit the bank from accepting a
payment order that is not payable from an authorized account, that
exceeds the credit balance in specified accounts of the customer, or
that exceeds some other amount. Another limitation may relate to
the beneficiary. The customer may provide the bank with a list of
authorized beneficiaries and prohibit acceptance of any payment
order to a beneficiary not appearing on the list. Such limitations
may be incorporated into the security procedure itself or they may
be covered by a separate agreement or instruction. In either case,
the bank must comply with the limitations if the conditions stated in
subsection (b) are met. Normally limitations on acceptance would
be incorporated into an agreement between the customer and the
receiving bank, but in some cases the instruction might be
unilaterally given by the customer. If standing instructions or an
agreement state limitations on the ability of the receiving bank to
act, provision must be made for later modification of the
limitations. Normally, this would be done by an agreement that
specifies particular procedures to be followed. Thus, subsection (b)
states that the receiving bank is not required to follow an instruction
that violates a written agreement. The receiving bank is not bound
by an instruction unless it has adequate notice of it. Subsections
(25), (26) and (27) of Section 1-201 apply.
Subsection (b)(i) assures that the interests of the customer will be
protected by providing an incentive to a bank to make available to
the customer a security procedure that is commercially reasonable.
If a commercially reasonable security procedure is not made
available to the customer, subsection (b) does not apply. The result
is that subsection (a) applies and the bank acts at its peril in
accepting a payment order that may be unauthorized. Prudent
banking practice may require that security procedures be utilized in
virtually all cases except for those in which personal contact
between the customer and the bank eliminates the possibility of an
unauthorized order. The burden of making available commercially
reasonable security procedures is imposed on receiving banks
because they generally determine what security procedures can be
used and are in the best position to evaluate the efficacy of
procedures offered to customers to combat fraud. The burden on
the customer is to supervise its employees to assure compliance
with the security procedure and to safeguard confidential security
information and access to transmitting facilities so that the security
procedure cannot be breached.
4. The principal issue that is likely to arise in litigation
involving subsection (b) is whether the security procedure in effect
when a fraudulent payment order was accepted was commercially
reasonable. The concept of what is commercially reasonable in a
given case is flexible. Verification entails labor and equipment
costs that can vary greatly depending upon the degree of security
that is sought. A customer that transmits very large numbers of
payment orders in very large amounts may desire and may
reasonably expect to be provided with state-of-the-art procedures
that provide maximum security. But the expense involved may
make use of a state-of-the-art procedure infeasible for a customer
that normally transmits payment orders infrequently or in relatively
low amounts. Another variable is the type of receiving bank. It is
reasonable to require large money center banks to make available
state-of-the-art security procedures. On the other hand, the same
requirement may not be reasonable for a small country bank. A
receiving bank might have several security procedures that are
designed to meet the varying needs of different customers. The
type of payment order is another variable. For example, in a
wholesale wire transfer, each payment order is normally transmitted
electronically and individually. A testing procedure will be
individually applied to each payment order. In funds transfers to be
made by means of an automated clearing house, many payment
orders are incorporated into an electronic device such as a magnetic
tape that is physically delivered. Testing of the individual payment
orders is not feasible. Thus, a different kind of security procedure
must be adopted to take into account the different mode of
transmission.
The issue of whether a particular security procedure is
commercially reasonable is a question of law. Whether the
receiving bank complied with the procedure is a question of fact. It
is appropriate to make the finding concerning commercial
reasonability a matter of law because security procedures are likely
to be standardized in the banking industry and a question of law
standard leads to more predictability concerning the level of
security that a bank must offer to its customers. The purpose of
subsection (b) is to encourage banks to institute reasonable
safeguards against fraud but not to make them insurers against
fraud. A security procedure is not commercially unreasonable
simply because another procedure might have been better or
because the judge deciding the question would have opted for a
more stringent procedure. The standard is not whether the security
procedure is the best available. Rather it is whether the procedure
is reasonable for the particular customer and the particular bank,
which is a lower standard. On the other hand, a security procedure
that fails to meet prevailing standards of good banking practice
applicable to the particular bank should not be held to be
commercially reasonable. Subsection (c) states factors to be
considered by the judge in making the determination of commercial
reasonableness. Sometimes an informed customer refuses a security
procedure that is commercially reasonable and suitable for that
customer and insists on using a higher-risk procedure because it is
more convenient or cheaper. In that case, under the last sentence of
subsection (c), the customer has voluntarily assumed the risk of
failure of the procedure and cannot shift the loss to the bank. But
this result follows only if the customer expressly agrees in writing
to assume that risk. It is implicit in the last sentence of subsection
(c) that a bank that accedes to the wishes of its customer in this
regard is not acting in bad faith by so doing so long as the
customer is made aware of the risk. In all cases, however, a
receiving bank cannot get the benefit of subsection (b) unless it has
made available to the customer a security procedure that is
commercially reasonable and suitable for use by that customer. In
most cases, the mutual interest of bank and customer to protect
against fraud should lead to agreement to a security procedure
which is commercially reasonable.
5. The effect of Section 4A-202(b) is to place the risk of loss on
the customer if an unauthorized payment order is accepted by the
receiving bank after verification by the bank in compliance with a
commercially reasonable security procedure. An exception to this
result is provided by Section 4A-203(a)(2). The customer may
avoid the loss resulting from such a payment order if the customer
can prove that the fraud was not committed by a person described
in that subsection. Breach of a commercially reasonable security
procedure requires that the person committing the fraud have
knowledge of how the procedure works and knowledge of codes,
identifying devices, and the like. That person may also need access
to transmitting facilities through an access device or other software
in order to breach the security procedure. This confidential
information must be obtained either from a source controlled by the
customer or from a source controlled by the receiving bank. If the
customer can prove that the person committing the fraud did not
obtain the confidential information from an agent or former agent
of the customer or from a source controlled by the customer, the
loss is shifted to the bank. "Prove" is defined in
Section 4A-105(a)(7). Because of bank regulation requirements, in
this kind of case there will always be a criminal investigation as
well as an internal investigation of the bank to determine the
probable explanation for the breach of security. Because a funds
transfer fraud usually will involve a very large amount of money,
both the criminal investigation and the internal investigation are
likely to be thorough. In some cases there may be an investigation
by bank examiners as well. Frequently, these investigations will
develop evidence of who is at fault and the cause of the loss. The
customer will have access to evidence developed in these
investigations and that evidence can be used by the customer in
meeting its burden of proof.
6. The effect of Section 4A-202(b) may also be changed by an
agreement meeting the requirements of Section 4A-203(a)(1).
Some customers may be unwilling to take all or part of the risk of
loss with respect to unauthorized payment orders even if all of the
requirements of Section 4A-202(b) are met. By virtue of Section
4A-203(a)(1), a receiving bank may assume all of the risk of loss
with respect to unauthorized payment orders, or the customer and
bank may agree that losses from unauthorized payment orders are to
be divided as provided in the agreement.
7. In a large majority of cases the sender of a payment order is a
bank. In many cases in which there is a bank sender, both the
sender and the receiving bank will be members of a funds transfer
system over which the payment order is transmitted. Since Section
4A-202(f) does not prohibit a funds transfer system rule from
varying rights and obligations under Section 4A-202, a rule of the
funds transfer system can determine how loss due to an
unauthorized payment order from a participating bank to another
participating bank is to be allocated. A funds transfer system rule,
however, cannot change the rights of a customer that is not a
participating bank. Section 4A-501(b). Section 4A-202(f) also
prevents variation by agreement except to the extent stated.
Section 36-4A-204. Refund of payment and duty of customer to
report with respect to unauthorized payment order.
(a) If a receiving bank accepts a payment order issued in the
name of its customer as sender which is (i) not authorized and not
effective as the order of the customer under Section 36-4A-202, or
(ii) not enforceable, in whole or in part, against the customer under
Section 36-4A-203, the bank shall refund any payment of the
payment order received from the customer to the extent the bank is
not entitled to enforce payment and shall pay interest on the
refundable amount calculated from the date the bank received
payment to the date of the refund. However, the customer is not
entitled to interest from the bank on the amount to be refunded if
the customer fails to exercise ordinary care to determine that the
order was not authorized by the customer and to notify the bank of
the relevant facts within a reasonable time not exceeding ninety
days after the date the customer received notification from the bank
that the order was accepted or that the customer's account was
debited with respect to the order. The bank is not entitled to any
recovery from the customer on account of a failure by the customer
to give notification as stated in this section.
(b) Reasonable time under subsection (a) may be fixed by
agreement as stated in Section 36-1-204(1), but the obligation of a
receiving bank to refund payment as stated in subsection (a) may
not otherwise be varied by agreement.
OFFICIAL COMMENT
1. With respect to unauthorized payment orders, in a very large
percentage of cases a commercially reasonable security procedure
will be in effect. Section 4A-204 applies only to cases in which (i)
no commercially reasonable security procedure is in effect, (ii) the
bank did not comply with a commercially reasonable security
procedure that was in effect, (iii) the sender can prove, pursuant to
Section 4A-203(a)(2), that the culprit did not obtain confidential
security information controlled by the customer, or (iv) the bank,
pursuant to Section 4A-203(a)(1) agreed to take all or part of the
loss resulting from an unauthorized payment order. In each of
these cases the bank takes the risk of loss with respect to an
unauthorized payment order because the bank is not entitled to
payment from the customer with respect to the order. The bank
normally debits the customer's account or otherwise receives
payment from the customer shortly after acceptance of the payment
order. Subsection (a) of Section 4A-204 states that the bank must
recredit the account or refund payment to the extent the bank is not
entitled to enforce payment.
2. Section 4A-204 is designed to encourage a customer to
promptly notify the receiving bank that it has accepted an
unauthorized payment order. Since cases of unauthorized payment
orders will almost always involve fraud, the bank's remedy is
normally to recover from the beneficiary of the unauthorized order
if the beneficiary was party to the fraud. This remedy may not be
worth very much and it may not make any difference whether or
not the bank promptly learns about the fraud. But in some cases
prompt notification may make it easier for the bank to recover some
part of its loss from the culprit. The customer will routinely be
notified of the debit to its account with respect to an unauthorized
order or will otherwise be notified of acceptance of the order. The
customer has a duty to exercise ordinary care to determine that the
order was unauthorized after it has received notification from the
bank, and to advise the bank of the relevant facts within a
reasonable time not exceeding ninety days after receipt of
notification. Reasonable time is not defined and it may depend on
the facts of the particular case. If a payment order for $1,000,000
is wholly unauthorized, the customer should normally discover it in
far less than ninety days. If a $1,000,000 payment order was
authorized but the name of the beneficiary was fraudulently
changed, a much longer period may be necessary to discover the
fraud. But in any event, if the customer delays more than ninety
days, the customer's duty has not been met. The only consequence
of a failure of the customer to perform this duty is a loss of interest
on the refund payable by the bank. A customer that acts promptly
is entitled to interest from the time the customer's account was
debited or the customer otherwise made payment. The rate of
interest is stated in Section 4A-506. If the customer fails to
perform the duty, no interest is recoverable for any part of the
period before the bank learns that it accepted an unauthorized order.
But the bank is not entitled to any recovery from the customer
based on negligence for failure to inform the bank. Loss of interest
is in the nature of a penalty on the customer designed to provide an
incentive for the customer to police its account. There is no
intention to impose a duty on the customer that might result in
shifting loss from the unauthorized order to the customer.
Section 36-4A-205. Erroneous payment orders.
(a) If an accepted payment order was transmitted pursuant to
a security procedure for the detection of error and the payment
order (i) erroneously instructed payment to a beneficiary not
intended by the sender, (ii) erroneously instructed payment in an
amount greater than the amount intended by the sender, or (iii) was
an erroneously transmitted duplicate of a payment order previously
sent by the sender, the following rules apply:
(1) If the sender proves that the sender or a person acting
on behalf of the sender pursuant to Section 36-4A-206 complied
with the security procedure and that the error would have been
detected if the receiving bank had also complied, the sender is not
obliged to pay the order to the extent stated in paragraphs (2) and
(3).
(2) If the funds transfer is completed on the basis of an
erroneous payment order described in clause (i) or (iii) of
subsection (a), the sender is not obliged to pay the order and the
receiving bank is entitled to recover from the beneficiary any
amount paid to the beneficiary to the extent allowed by the law
governing mistake and restitution.
(3) If the funds transfer is completed on the basis of a
payment order described in clause (ii) of subsection (a), the sender
is not obliged to pay the order to the extent the amount received by
the beneficiary is greater than the amount intended by the sender.
In that case, the receiving bank is entitled to recover from the
beneficiary the excess amount received to the extent allowed by the
law governing mistake and restitution.
(b) If (i) the sender of an erroneous payment order described
in subsection (a) is not obliged to pay all or part of the order, and
(ii) the sender receives notification from the receiving bank that the
order was accepted by the bank or that the sender's account was
debited with respect to the order, the sender has a duty to exercise
ordinary care, on the basis of information available to the sender, to
discover the error with respect to the order and to advise the bank
of the relevant facts within a reasonable time, not exceeding ninety
days, after the bank's notification was received by the sender. If
the bank proves that the sender failed to perform that duty, the
sender is liable to the bank for the loss the bank proves it incurred
as a result of the failure, but the liability of the sender may not
exceed the amount of the sender's order.
(c) This section applies to amendments to payment orders to
the same extent it applies to payment orders.
OFFICIAL COMMENT
1. This section concerns error in the content or in the
transmission of payment orders. It deals with three kinds of error.
Case #1. The order identifies a beneficiary not intended by
the sender. For example, Sender intends to wire funds to a
beneficiary identified only by an account number. The wrong
account number is stated in the order. Case #2. The error
is in the amount of the order. For example, Sender intends to wire
$1,000 to Beneficiary. Through error, the payment order instructs
payment of $1,000,000. Case #3. A payment order is sent
to the receiving bank and then, by mistake, the same payment order
is sent to the receiving bank again. In Case #3, the receiving bank
may have no way of knowing whether the second order is a
duplicate of the first or is another order. Similarly, in Case #1 and
Case #2, the receiving bank may have no way of knowing that the
error exists. In each case, if this section does not apply and the
funds transfer is completed, Sender is obliged to pay the order.
Section 4A-402. Sender's remedy, based on payment by mistake, is
to recover from the beneficiary that received payment.
Sometimes, however, transmission of payment orders of the
sender to the receiving bank is made pursuant to a security
procedure designed to detect one or more of the errors described
above. Since "security procedure" is defined by Section
4A-201 as "a procedure established by agreement of a
customer and a receiving bank for the purpose of * * * detecting
error * * *," Section 4A-205 does not apply if the receiving
bank and the customer did not agree to the establishment of a
procedure for detecting error. A security procedure may be
designed to detect an account number that is not one to which
Sender normally makes payment. In that case, the security
procedure may require a special verification that payment to the
stated account number was intended. In the case of dollar amounts,
the security procedure may require different codes for different
dollar amounts. If a $1,000,000 payment order contains a code that
is inappropriate for that amount, the error in amount should be
detected. In the case of duplicate orders, the security procedure
may require that each payment order be identified by a number or
code that applies to no other order. If the number or code of each
payment order received is registered in a computer base, the
receiving bank can quickly identify a duplicate order. The three
cases covered by this section are essentially similar. In each, if the
error is not detected, some beneficiary will receive funds that the
beneficiary was not intended to receive. If this section applies, the
risk of loss with respect to the error of the sender is shifted to the
bank which has the burden of recovering the funds from the
beneficiary. The risk of loss is shifted to the bank only if the
sender proves that the error would have been detected if there had
been compliance with the procedure and that the sender (or an agent
under Section 4A-206) complied. In the case of a duplicate order
or a wrong beneficiary, the sender doesn't have to pay the order.
In the case of an overpayment, the sender does not have to pay the
order to the extent of the overpayment. If subsection (a)(1) applies,
the position of the receiving bank is comparable to that of a
receiving bank that erroneously executes a payment order as stated
in Section 4A-303. However, failure of the sender to timely report
the error is covered by Section 4A-205(b) rather than by Section
4A-304 which applies only to erroneous execution under Section
4A-303. A receiving bank to which the risk of loss is shifted by
subsection (a)(1) or (2) is entitled to recover the amount
erroneously paid to the beneficiary to the extent allowed by the law
of mistake and restitution. Rights of the receiving bank against the
beneficiary are similar to those of a receiving bank that erroneously
executes a payment order as stated in Section 4A-303. Those rights
are discussed in Comment 2 to Section 4A-303.
2. A security procedure established for the purpose of detecting
error is not effective unless both sender and receiving bank comply
with the procedure. Thus, the bank undertakes a duty of complying
with the procedure for the benefit of the sender. This duty is
recognized in subsection (a)(1). The loss with respect to the
sender's error is shifted to the bank if the bank fails to comply with
the procedure and the sender (or an agent under Section 4A-206)
does comply. Although the customer may have been negligent in
transmitting the erroneous payment order, the loss is put on the
bank on a last-clear-chance theory. A similar analysis applies to
subsection (b). If the loss with respect to an error is shifted to the
receiving bank and the sender is notified by the bank that the
erroneous payment order was accepted, the sender has a duty to
exercise ordinary care to discover the error and notify the bank of
the relevant facts within a reasonable time not exceeding 90 days.
If the bank can prove that the sender failed in this duty it is entitled
to compensation for the loss incurred as a result of the failure.
Whether the bank is entitled to recover from the sender depends
upon whether the failure to give timely notice would have made
any difference. If the bank could not have recovered from the
beneficiary that received payment under the erroneous payment
order even if timely notice had been given, the sender's failure to
notify did not cause any loss of the bank.
3. Section 4A-205 is subject to variation by agreement under
Section 4A-501. Thus, if a receiving bank and its customer have
agreed to a security procedure for detection of error, the liability of
the receiving bank for failing to detect an error of the customer as
provided in Section 4A-205 may be varied as provided in an
agreement of the bank and the customer.
Section 36-4A-206. Transmission of payment order through
funds-transfer or other communication system.
(a) If a payment order addressed to a receiving bank is
transmitted to a funds-transfer system or other third-party
communication system for transmittal to the bank, the system is
deemed to be an agent of the sender for the purpose of transmitting
the payment order to the bank. If there is a discrepancy between
the terms of the payment order transmitted to the system and the
terms of the payment order transmitted by the system to the bank,
the terms of the payment order of the sender are those transmitted
by the system. This section does not apply to a funds-transfer
system of the Federal Reserve Banks.
(b) This section applies to cancellations and amendments of
payment orders to the same extent it applies to payment orders.
OFFICIAL COMMENT
1. A payment order may be issued to a receiving bank directly
by delivery of a writing or electronic device or by an oral or
electronic communication. If an agent of the sender is employed to
transmit orders on behalf of the sender, the sender is bound by the
order transmitted by the agent on the basis of agency law. Section
4A-206 is an application of that principle to cases in which a funds
transfer or communication system acts as an intermediary in
transmitting the sender's order to the receiving bank. The
intermediary is deemed to be an agent of the sender for the purpose
of transmitting payment orders and related messages for the sender.
Section 4A-206 deals with error by the intermediary.
2. Transmission by an automated clearing house of an
association of banks other than the Federal Reserve Banks is an
example of a transaction covered by Section 4A-206. Suppose
Originator orders Originator's Bank to cause a large number of
payments to be made to many accounts in banks in various parts of
the country. These payment orders are electronically transmitted to
Originator's Bank and stored in an electronic device that is held by
Originator's Bank. Or, transmission of the various payment orders
is made by delivery to Originator's Bank of an electronic device
containing the instruction to the bank. In either case the terms of
the various payment orders by Originator are determined by the
information contained in the electronic device. In order to execute
the various orders, the information in the electronic device must be
processed. For example, if some of the orders are for payments to
accounts in Bank X and some to accounts in Bank Y, Originator's
Bank will execute these orders of Originator by issuing a series of
payment orders to Bank X covering all payments to accounts in that
bank, and by issuing a series of payment orders to Bank Y covering
all payments to accounts in that bank. The orders to Bank X may
be transmitted together by means of an electronic device, and those
to Bank Y may be included in another electronic device. Typically,
this processing is done by an automated clearing house acting for a
group of banks including Originator's Bank. The automated
clearing house is a funds transfer system. Section 4A-105(a)(5).
Originator's Bank delivers Originator's electronic device or
transmits the information contained in the device to the funds
transfer system for processing into payment orders of Originator's
Bank to the appropriate beneficiary's banks. The processing may
result in an erroneous payment order. Originator's Bank, by use of
Originator's electronic device, may have given information to the
funds transfer system instructing payment of $100,000 to an
account in Bank X, but because of human error or an equipment
malfunction the processing may have converted that instruction into
an instruction to Bank X to make a payment of $1,000,000. Under
Section 4A-206, Originator's Bank issued a payment order for
$1,000,000 to Bank X when the erroneous information was sent to
Bank X. Originator's Bank is responsible for the error of the
automated clearing house. The liability of the funds transfer system
that made the error is not governed by Article 4A. It is left to the
law of contract, a funds transfer system rule, or other applicable
law.
In the hypothetical case just discussed, if the automated clearing
house is operated by a Federal Reserve Bank, the analysis is
different. Section 4A-206 does not apply. Originator's Bank will
execute Originator's payment orders by delivery or transmission of
the electronic information to the Federal Reserve Bank for
processing. The result is that Originator's Bank has issued payment
orders to the Federal Reserve Bank which, in this case, is acting as
an intermediary bank. When the Federal Reserve Bank has
processed the information given to it by Originator's Bank, it will
issue payment orders to the various beneficiary's banks. If the
processing results in an erroneous payment order, the Federal
Reserve Bank has erroneously executed the payment order of
Originator's Bank and the case is governed by Section 4A-303.
Section 36-4A-207. Misdescription of beneficiary.
(a) Subject to subsection (b), if, in a payment order received
by the beneficiary's bank, the name, bank account number, or other
identification of the beneficiary refers to a nonexistent or
unidentifiable person or account, no person has rights as a
beneficiary of the order and acceptance of the order cannot occur.
(b) If a payment order received by the beneficiary's bank
identifies the beneficiary both by name and by an identifying or
bank account number and the name and number identify different
persons, the following rules apply:
(1) Except as otherwise provided in subsection (c), if the
beneficiary's bank does not know that the name and number refer
to different persons, it may rely on the number as the proper
identification of the beneficiary of the order. The beneficiary's
bank need not determine whether the name and number refer to the
same person.
(2) If the beneficiary's bank pays the person identified by
name or knows that the name and number identify different
persons, no person has rights as beneficiary except the person paid
by the beneficiary's bank if that person was entitled to receive
payment from the originator of the funds transfer. If no person has
rights as beneficiary, acceptance of the order cannot occur.
(c) If (i) a payment order described in subsection (b) is
accepted, (ii) the originator's payment order described the
beneficiary inconsistently by name and number, and (iii) the
beneficiary's bank pays the person identified by number as
permitted by subsection (b)(1), the following rules apply:
(1) If the originator is a bank, the originator is obliged to
pay its order.
(2) If the originator is not a bank and proves that the
person identified by number was not entitled to receive payment
from the originator, the originator is not obliged to pay its order
unless the originator's bank proves that the originator, before
acceptance of the originator's order, had notice that payment of a
payment order issued by the originator might be made by the
beneficiary's bank on the basis of an identifying or bank account
number even if it identifies a person different from the named
beneficiary. Proof of notice may be made by any admissible
evidence. The originator's bank satisfies the burden of proof if it
proves that the originator, before the payment order was accepted,
signed a writing stating the information to which the notice relates.
(d) In a case governed by subsection (b)(1), if the
beneficiary's bank rightfully pays the person identified by number
and that person was not entitled to receive payment from the
originator, the amount paid may be recovered from that person to
the extent allowed by the law governing mistake and restitution as
follows:
(1) If the originator is obliged to pay its payment order as
stated in subsection (c), the originator has the right to recover.
(2) If the originator is not a bank and is not obliged to pay
its payment order, the originator's bank has the right to recover.
OFFICIAL COMMENT
1. Subsection (a) deals with the problem of payment orders
issued to the beneficiary's bank for payment to nonexistent or
unidentifiable persons or accounts. Since it is not possible in that
case for the funds transfer to be completed, subsection (a) states
that the order cannot be accepted. Under Section 4A-402(c), a
sender of a payment order is not obliged to pay its order unless the
beneficiary's bank accepts a payment order instructing payment to
the beneficiary of that sender's order. Thus, if the beneficiary of a
funds transfer is nonexistent or unidentifiable, each sender in the
funds transfer that has paid its payment order is entitled to get its
money back.
2. Subsection (b), which takes precedence over subsection (a),
deals with the problem of payment orders in which the description
of the beneficiary does not allow identification of the beneficiary
because the beneficiary is described by name and by an identifying
number or an account number and the name and number refer to
different persons. A very large percentage of payment orders
issued to the beneficiary's bank by another bank are processed by
automated means using machines capable of reading orders on
standard formats that identify the beneficiary by an identifying
number or the number of a bank account. The processing of the
order by the beneficiary's bank and the crediting of the
beneficiary's account are done by use of the identifying or bank
account number without human reading of the payment order itself.
The process is comparable to that used in automated payment of
checks. The standard format, however, may also allow the
inclusion of the name of the beneficiary and other information
which can be useful to the beneficiary's bank and the beneficiary
but which plays no part in the process of payment. If the
beneficiary's bank has both the account number and name of the
beneficiary supplied by the originator of the funds transfer, it is
possible for the beneficiary's bank to determine whether the name
and number refer to the same person, but if a duty to make that
determination is imposed on the beneficiary's bank the benefits of
automated payment are lost. Manual handling of payment orders is
both expensive and subject to human error. If payment orders can
be handled on an automated basis there are substantial economies of
operation and the possibility of clerical error is reduced. Subsection
(b) allows banks to utilize automated processing by allowing banks
to act on the basis of the number without regard to the name if the
bank does not know that the name and number refer to different
persons. "Know" is defined in Section 1-201(25) to
mean actual knowledge, and Section 1-201(27) states rules for
determining when an organization has knowledge of information
received by the organization. The time of payment is the pertinent
time at which knowledge or lack of knowledge must be determined.
Although the clear trend is for beneficiary's banks to process
payment orders by automated means, Section 4A-207 is not limited
to cases in which processing is done by automated means. A bank
that processes by semi-automated means or even manually may rely
on number as stated in Section 4A-207.
In cases covered by subsection (b) the erroneous identification
would in virtually all cases be the identifying or bank account
number. In the typical case the error is made by the originator of
the funds transfer. The originator should know the name of the
person who is to receive payment and can further identify that
person by an address that would normally be known to the
originator. It is not unlikely, however, that the originator may not
be sure whether the identifying or account number refers to the
person the originator intends to pay. Subsection (b)(1) deals with
the typical case in which the beneficiary's bank pays on the basis of
the account number and is not aware at the time of payment that the
named beneficiary is not the holder of the account which was paid.
In some cases the false number will be the result of error by the
originator. In other cases fraud is involved. For example, Doe is
the holder of shares in Mutual Fund. Thief, impersonating Doe,
requests redemption of the shares and directs Mutual Fund to wire
the redemption proceeds to Doe's account #12345 in Beneficiary's
Bank. Mutual Fund originates a funds transfer by issuing a
payment order to Originator's Bank to make the payment to Doe's
account #12345 in Beneficiary's Bank. Originator's Bank executes
the order by issuing a conforming payment order to Beneficiary's
Bank which makes payment to account #12345. That account is the
account of Roe rather than Doe. Roe might be a person acting in
concert with Thief or Roe might be an innocent third party.
Assume that Roe is a gem merchant that agreed to sell gems to
Thief who agreed to wire the purchase price to Roe's account in
Beneficiary's Bank. Roe believed that the credit to Roe's account
was a transfer of funds from Thief and released the gems to Thief
in good faith in reliance on the payment. The case law is unclear
on the responsibility of a beneficiary's bank in carrying out a
payment order in which the identification of the beneficiary by
name and number is conflicting. See Securities Fund Services,
Inc. v. American National Bank, 542 F.Supp. 323 (N.D.Ill.
1982) and Bradford Trust Co. v. Texas American Bank,
790 F.2d 407 (5th Cir. 1986). Section 4A-207 resolves the issue.
If Beneficiary's Bank did not know about the conflict between
the name and number, subsection (b)(1) applies. Beneficiary's
Bank has no duty to determine whether there is a conflict and it
may rely on the number as the proper identification of the
beneficiary of the order. When it accepts the order, it is entitled to
payment from Originator's Bank. Section 4A-402(b). On the other
hand, if Beneficiary's Bank knew about the conflict between the
name and number and nevertheless paid Roe, subsection (b)(2)
applies. Under that provision, acceptance of the payment order of
Originator's Bank did not occur because there is no beneficiary of
that order. Since acceptance did not occur Originator's Bank is not
obliged to pay Beneficiary's Bank. Section 4A-402(b). Similarly,
Mutual Fund is excused from its obligation to pay Originator's
Bank. Section 4A-402(c). Thus, Beneficiary's Bank takes the loss.
Its only cause of action is against Thief. Roe is not obliged to
return the payment to the beneficiary's bank because Roe received
the payment in good faith and for value. Article 4A makes
irrelevant the issue of whether Mutual Fund was or was not
negligent in issuing its payment order.
3. Normally, subsection (b)(1) will apply to the hypothetical
case discussed in Comment 2. Beneficiary's Bank will pay on the
basis of the number without knowledge of the conflict. In that case
subsection (c) places the loss on either Mutual Fund or Originator's
Bank. It is not unfair to assign the loss to Mutual Fund because it
is the person who dealt with the impostor and it supplied the wrong
account number. It could have avoided the loss if it had not used
an account number that it was not sure was that of Doe. Mutual
Fund, however, may not have been aware of the risk involved in
giving both name and number. Subsection (c) is designed to
protect the originator, Mutual Fund, in this case. Under that
subsection, the originator is responsible for the inconsistent
description of the beneficiary if it had notice that the order might be
paid by the beneficiary's bank on the basis of the number. If the
originator is a bank, the originator always has that responsibility.
The rationale is that any bank should know how payment orders are
processed and paid. If the originator is not a bank, the originator's
bank must prove that its customer, the originator, had notice.
Notice can be proved by any admissible evidence, but the bank can
always prove notice by providing the customer with a written
statement of the required information and obtaining the customer's
signature to the statement. That statement will then apply to any
payment order accepted by the bank thereafter. The information
need not be supplied more than once.
In the hypothetical case if Originator's Bank made the disclosure
stated in the last sentence of subsection (c)(2), Mutual Fund must
pay Originator's Bank. Under subsection (d)(1), Mutual Fund has
an action to recover from Roe if recovery from Roe is permitted by
the law governing mistake and restitution. Under the assumed facts
Roe should be entitled to keep the money as a person who took it
in good faith and for value since it was taken as payment for the
gems. In that case, Mutual Fund's only remedy is against Thief. If
Roe was not acting in good faith, Roe has to return the money to
Mutual Fund. If Originator's Bank does not prove that Mutual
Fund had notice as stated in subsection (c)(2), Mutual Fund is not
required to pay Originator's Bank. Thus, the risk of loss falls on
Originator's Bank whose remedy is against Roe or Thief as stated
above. Subsection (d)(2).
Section 36-4A-208. Misdescription of intermediary bank or
beneficiary's bank.
(a) This subsection applies to a payment order identifying an
intermediary bank or the beneficiary's bank only by an identifying
number.
(1) The receiving bank may rely on the number as the
proper identification of the intermediary or beneficiary's bank and
need not determine whether the number identifies a bank.
(2) The sender is obliged to compensate the receiving bank
for any loss and expenses incurred by the receiving bank as a result
of its reliance on the number in executing or attempting to execute
the order.
(b) This subsection applies to a payment order identifying an
intermediary bank or the beneficiary's bank both by name and an
identifying number if the name and number identify different
persons.
(1) If the sender is a bank, the receiving bank may rely on
the number as the proper identification of the intermediary or
beneficiary's bank if the receiving bank, when it executes the
sender's order, does not know that the name and number identify
different persons. The receiving bank need not determine whether
the name and number refer to the same person or whether the
number refers to a bank. The sender is obliged to compensate the
receiving bank for any loss and expenses incurred by the receiving
bank as a result of its reliance on the number in executing or
attempting to execute the order.
(2) If the sender is not a bank and the receiving bank
proves that the sender, before the payment order was accepted, had
notice that the receiving bank might rely on the number as the
proper identification of the intermediary or beneficiary's bank even
if it identifies a person different from the bank identified by name,
the rights and obligations of the sender and the receiving bank are
governed by subsection (b)(1), as though the sender were a bank.
Proof of notice may be made by any admissible evidence. The
receiving bank satisfies the burden of proof if it proves that the
sender, before the payment order was accepted, signed a writing
stating the information to which the notice relates.
(3) Regardless of whether the sender is a bank, the
receiving bank may rely on the name as the proper identification of
the intermediary or beneficiary's bank if the receiving bank, at the
time it executes the sender's order, does not know that the name
and number identify different persons. The receiving bank need not
determine whether the name and number refer to the same person.
(4) If the receiving bank knows that the name and number
identify different persons, reliance on either the name or the number
in executing the sender's payment order is a breach of the
obligation stated in Section 36-4A-302(a)(1).
OFFICIAL COMMENT
1. This section addresses an issue similar to that addressed by
Section 4A-207. Because of automation in the processing of
payment orders, a payment order may identify the beneficiary's
bank or an intermediary bank by an identifying number. The bank
identified by number might or might not also be identified by name.
The following two cases illustrate Section 4A-208(a) and (b):
Case #1. Originator's payment order to Originator's
Bank identifies the beneficiary's bank as Bank A and instructs
payment to Account #12345 in that bank. Originator's Bank
executes Originator's order by issuing a payment order to
Intermediary Bank. In the payment order of Originator's Bank, the
beneficiary's bank is identified as Bank A but is also identified by
number, #67890. The identifying number refers to Bank B rather
than Bank A. If processing by Intermediary Bank of the payment
order of Originator's Bank is done by automated means,
Intermediary Bank, in executing the order, will rely on the
identifying number and will issue a payment order to Bank B rather
than Bank A. If there is an Account #12345 in Bank B, the
payment order of Intermediary Bank would normally be accepted
and payment would be made to a person not intended by
Originator. In this case, Section 4A-208(b)(1) puts the risk of loss
on Originator's Bank. Intermediary Bank may rely on the number
#67890 as the proper identification of the beneficiary's bank.
Intermediary Bank has properly executed the payment order of
Originator's Bank. By using the wrong number to describe the
beneficiary's bank, Originator's Bank has improperly executed
Originator's payment order because the payment order of
Originator's Bank provides for payment to the wrong beneficiary,
the holder of Account #12345 in Bank B rather than the holder of
Account #12345 in Bank A. Section 4A-302(a) (1) and Section
4A-303(c). Originator's Bank is not entitled to payment from
Originator but is required to pay Intermediary Bank. Section
4A-303(c) and Section 4A-402(c). Intermediary Bank is also
entitled to compensation for any loss and expenses resulting from
the error by Originator's Bank.
If there is no Account #12345 in Bank B, the result is that there
is no beneficiary of the payment order issued by Originator's Bank
and the funds transfer will not be completed. Originator's Bank is
not entitled to payment from Originator and Intermediary Bank is
not entitled to payment from Originator's Bank. Section 4A-402(c).
Since Originator's Bank improperly executed Originator's payment
order, it may be liable for damages under Section 4A-305. As
stated above, Intermediary Bank is entitled to compensation for loss
and expenses resulting from the error by Originator's Bank.
Case #2. Suppose the same payment order by Originator
to Originator's Bank as in Case #1. In executing the payment order
Originator's Bank issues a payment order to Intermediary Bank in
which the beneficiary's bank is identified only by number, #67890.
That number does not refer to Bank A. Rather, it identifies a
person that is not a bank. If processing by Intermediary Bank of
the payment order of Originator's Bank is done by automated
means, Intermediary Bank will rely on the number #67890 to
identify the beneficiary's bank. Intermediary Bank has no duty to
determine whether the number identifies a bank. The funds transfer
cannot be completed in this case because no bank is identified as
the beneficiary's bank. Subsection (a) puts the risk of loss on
Originator's Bank. Originator's Bank is not entitled to payment
from Originator. Section 4A-402(c). Originator's Bank has
improperly executed Originator's payment order and may be liable
for damages under Section 4A-305. Originator's Bank is obliged to
compensate Intermediary Bank for loss and expenses resulting from
the error by Originator's Bank.
Subsection (a) also applies if #67890 identifies a bank, but the
bank is not Bank A. Intermediary Bank may rely on the number as
the proper identification of the beneficiary's bank. If the bank to
which Intermediary Bank sends its payment order accepts the order,
Intermediary Bank is entitled to payment from Originator's Bank,
but Originator's Bank is not entitled to payment from Originator.
The analysis is similar to that in Case #1.
2. Subsection (b)(2) of Section 4A-208 addresses cases in which
an erroneous identification of a beneficiary's bank or intermediary
bank by name and number is made in a payment order of a sender
that is not a bank. Suppose Originator issues a payment order to
Originator's Bank that instructs that bank to use an intermediary
bank identified as Bank A and by an identifying number, #67890.
The identifying number refers to Bank B. Originator intended to
identify Bank A as intermediary bank. If Originator's Bank relied
on the number and issued a payment order to Bank B, the rights of
Originator's Bank depend upon whether the proof of notice stated
in subsection (b)(2) is made by Originator's Bank. If proof is
made, Originator's Bank's rights are governed by subsection (b)(1)
of Section 4A-208. Originator's Bank is not liable for breach of
Section 4A-302(a)(1) and is entitled to compensation from
Originator for any loss and expenses resulting from Originator's
error. If notice is not proved, Originator's Bank may not rely on
the number in executing Originator's payment order. Since
Originator's Bank does not get the benefit of subsection (b)(1) in
that case, Originator's Bank improperly executed Originator's
payment order and is in breach of the obligation stated in Section
4A-302(a)(1). If notice is not given, Originator's Bank can rely on
the name if it is not aware of the conflict in name and number.
Subsection (b)(3).
3. Although the principal purpose of Section 4A-208 is to
accommodate automated processing of payment orders, Section
4A-208 applies regardless of whether processing is done by
automation, semi-automated means, or manually.
Section 36-4A-209. Acceptance of payment order.
(a) Subject to subsection (d), a receiving bank other than the
beneficiary's bank accepts a payment order when it executes the
order.
(b) Subject to subsections (c) and (d), a beneficiary's bank
accepts a payment order at the earliest of the following times:
(1) when the bank (i) pays the beneficiary as stated in
Section 36-4A-405(a) or 36-4A-405(b), or (ii) notifies the
beneficiary of receipt of the order or that the account of the
beneficiary has been credited with respect to the order unless the
notice indicates that the bank is rejecting the order or that funds
with respect to the order may not be withdrawn or used until receipt
of payment from the sender of the order;
(2) when the bank receives payment of the entire amount of
the sender's order pursuant to Section 36-4A-403(a)(1) or
36-4A-403(a)(2); or
(3) the opening of the next funds-transfer business day of
the bank following the payment date of the order if, at that time,
the amount of the sender's order is fully covered by a withdrawable
credit balance in an authorized account of the sender or the bank
has otherwise received full payment from the sender, unless the
order was rejected before that time or is rejected within (i) one hour
after that time, or (ii) one hour after the opening of the next
business day of the sender following the payment date if that time
is later. If notice of rejection is received by the sender after the
payment date and the authorized account of the sender does not
bear interest, the bank is obliged to pay interest to the sender on the
amount of the order for the number of days elapsing after the
payment date to the day the sender receives notice or learns that the
order was not accepted, counting that day as an elapsed day. If the
withdrawable credit balance during that period falls below the
amount of the order, the amount of interest payable is reduced
accordingly.
(c) Acceptance of a payment order cannot occur before the
order is received by the receiving bank. Acceptance does not occur
under subsection (b)(2) or (b)(3) if the beneficiary of the payment
order does not have an account with the receiving bank, the account
has been closed, or the receiving bank is not permitted by law to
receive credits for the beneficiary's account.
(d) A payment order issued to the originator's bank cannot be
accepted until the payment date if the bank is the beneficiary's
bank, or the execution date if the bank is not the beneficiary's bank.
If the originator's bank executes the originator's payment order
before the execution date or pays the beneficiary of the originator's
payment order before the payment date and the payment order is
subsequently canceled pursuant to Section 36-4A-211(b), the bank
may recover from the beneficiary any payment received to the
extent allowed by the law governing mistake and restitution.
OFFICIAL COMMENT
1. This section treats the sender's payment order as a request by
the sender to the receiving bank to execute or pay the order and that
request can be accepted or rejected by the receiving bank. Section
4A-209 defines when acceptance occurs. Section 4A-210 covers
rejection. Acceptance of the payment order imposes an obligation
on the receiving bank to the sender if the receiving bank is not the
beneficiary's bank, or to the beneficiary if the receiving bank is the
beneficiary's bank. These obligations are stated in Section 4A-302
and Section 4A-404.
2. Acceptance by a receiving bank other than the beneficiary's
bank is defined in Section 4A-209(a). That subsection states the
only way that a bank other than the beneficiary's bank can accept a
payment order. A payment order to a bank other than the
beneficiary's bank is, in effect, a request that the receiving bank
execute the sender's order by issuing a payment order to the
beneficiary's bank or to an intermediary bank. Normally,
acceptance occurs at the time of execution, but there is an exception
stated in subsection (d) and discussed in Comment 9. Execution
occurs when the receiving bank "issues a payment order
intended to carry out" the sender's order. Section 4A-301(a).
In some cases the payment order issued by the receiving bank may
not conform to the sender's order. For example, the receiving bank
might make a mistake in the amount of its order, or the order might
be issued to the wrong beneficiary's bank or for the benefit of the
wrong beneficiary. In all of these cases there is acceptance of the
sender's order by the bank when the receiving bank issues its order
intended to carry out the sender's order, even though the bank's
payment order does not in fact carry out the instruction of the
sender. Improper execution of the sender's order may lead to
liability to the sender for damages or it may mean that the sender is
not obliged to pay its payment order. These matters are covered in
Section 4A-303, Section 4A-305, and Section 4A-402.
3. A receiving bank has no duty to accept a payment order
unless the bank makes an agreement, either before or after issuance
of the payment order, to accept it, or acceptance is required by a
funds transfer system rule. If the bank makes such an agreement it
incurs a contractual obligation based on the agreement and may be
held liable for breach of contract if a failure to execute violates the
agreement. In many cases a bank will enter into an agreement with
its customer to govern the rights and obligations of the parties with
respect to payment orders issued to the bank by the customer or, in
cases in which the sender is also a bank, there may be a funds
transfer system rule that governs the obligations of a receiving bank
with respect to payment orders transmitted over the system. Such
agreements or rules can specify the circumstances under which a
receiving bank is obliged to execute a payment order and can define
the extent of liability of the receiving bank for breach of the
agreement or rule. Section 4A-305(d) states the liability for breach
of an agreement to execute a payment order.
4. In the case of a payment order issued to the beneficiary's
bank, acceptance is defined in Section 4A-209(b). The function of
a beneficiary's bank that receives a payment order is different from
that of a receiving bank that receives a payment order for execution.
In the typical case, the beneficiary's bank simply receives payment
from the sender of the order, credits the account of the beneficiary
and notifies the beneficiary of the credit. Acceptance by the
beneficiary's bank does not create any obligation to the sender.
Acceptance by the beneficiary's bank means that the bank is liable
to the beneficiary for the amount of the order. Section 4A-404(a).
There are three ways in which the beneficiary's bank can accept a
payment order which are described in the following comments.
5. Under Section 4A-209(b)(1), the beneficiary's bank can
accept a payment order by paying the beneficiary. In the normal
case of crediting an account of the beneficiary, payment occurs
when the beneficiary is given notice of the right to withdraw the
credit, the credit is applied to a debt of the beneficiary, or
"funds with respect to the order" are otherwise made
available to the beneficiary. Section 4A-405(a). The quoted phrase
covers cases in which funds are made available to the beneficiary as
a result of receipt of a payment order for the benefit of the
beneficiary but the release of funds is not expressed as payment of
the order. For example, the beneficiary's bank might express a
release of funds equal to the amount of the order as a
"loan" that will be automatically repaid when the
beneficiary's bank receives payment by the sender of the order. If
the release of funds is designated as a loan pursuant to a routine
practice of the bank, the release is conditional payment of the order
rather than a loan, particularly if normal incidents of a loan such as
the signing of a loan agreement or note and the payment of interest
are not present. Such a release of funds is payment to the
beneficiary under Section 4A-405(a). Under Section 4A-405(c) the
bank cannot recover the money from the beneficiary if the bank
does not receive payment from the sender of the payment order that
it accepted. Exceptions to this rule are stated in Section 4A-405(d)
and (e). The beneficiary's bank may also accept by notifying the
beneficiary that the order has been received. "Notifies"
is defined in Section 1-201(26). In some cases a beneficiary's bank
will receive a payment order during the day but settlement of the
sender's obligation to pay the order will not occur until the end of
the day. If the beneficiary's bank wants to defer incurring liability
to the beneficiary until the beneficiary's bank receives payment, it
can do so. The beneficiary's bank incurs no liability to the
beneficiary with respect to a payment order that it receives until it
accepts the order. If the bank does not accept pursuant to
subsection (b)(1), acceptance does not occur until the end of the day
when the beneficiary's bank receives settlement. If the sender
settles, the payment order will be accepted under subsection (b)(2)
and the funds will be released to the beneficiary the next morning.
If the sender doesn't settle, no acceptance occurs. In either case the
beneficiary's bank suffers no loss.
6. In most cases the beneficiary's bank will receive a payment
order from another bank. If the sender is a bank and the
beneficiary's bank receives payment from the sender by final
settlement through the Federal Reserve System or a funds transfer
system (Section 4A-403(a)(1)) or, less commonly, through credit to
an account of the beneficiary's bank with the sender or another
bank (Section 4A-403(a)(2)), acceptance by the beneficiary's bank
occurs at the time payment is made. Section 4A-209(b)(2). A
minor exception to this rule is stated in Section 4A-209(c). Section
4A-209(b)(2) results in automatic acceptance of payment orders
issued to a beneficiary's bank by means of Fedwire because the
Federal Reserve account of the beneficiary's bank is credited and
final payment is made to that bank when the payment order is
received.
Subsection (b)(2) would also apply to cases in which the
beneficiary's bank mistakenly pays a person who is not the
beneficiary of the payment order issued to the beneficiary's bank.
For example, suppose the payment order provides for immediate
payment to Account #12345. The beneficiary's bank erroneously
credits Account #12346 and notifies the holder of that account of
the credit. No acceptance occurs in this case under subsection
(b)(1) because the beneficiary of the order has not been paid or
notified. The holder of Account #12345 is the beneficiary of the
order issued to the beneficiary's bank. But acceptance will
normally occur if the beneficiary's bank takes no other action,
because the bank will normally receive settlement with respect to
the payment order. At that time the bank has accepted because the
sender paid its payment order. The bank is liable to pay the holder
of Account #12345. The bank has paid the holder of Account
#12346 by mistake, and has a right to recover the payment if the
credit is withdrawn, to the extent provided in the law governing
mistake and restitution.
7. Subsection (b)(3) covers cases of inaction by the beneficiary's
bank. It applies whether or not the sender is a bank and covers a
case in which the sender and the beneficiary both have accounts
with the receiving bank and payment will be made by debiting the
account of the sender and crediting the account of the beneficiary.
Subsection (b)(3) is similar to subsection (b)(2) in that it bases
acceptance by the beneficiary's bank on payment by the sender.
Payment by the sender is effected by a debit to the sender's account
if the account balance is sufficient to cover the amount of the order.
On the payment date (Section 4A-401) of the order the
beneficiary's bank will normally credit the beneficiary's account
and notify the beneficiary of receipt of the order if it is satisfied
that the sender's account balance covers the order or is willing to
give credit to the sender. In some cases, however, the bank may
not be willing to give credit to the sender and it may not be
possible for the bank to determine until the end of the day on the
payment date whether there are sufficient good funds in the
sender's account. There may be various transactions during the day
involving funds going into and out of the account. Some of these
transactions may occur late in the day or after the close of the
banking day. To accommodate this situation, subsection (b)(3)
provides that the status of the account is determined at the opening
of the next funds transfer business day of the beneficiary's bank
after the payment date of the order. If the sender's account balance
is sufficient to cover the order, the beneficiary's bank has a source
of payment and the result in almost all cases is that the bank
accepts the order at that time if it did not previously accept under
subsection (b)(1). In rare cases, a bank may want to avoid
acceptance under subsection (b)(3) by rejecting the order as
discussed in Comment 8.
8. Section 4A-209 is based on a general principle that a
receiving bank is not obliged to accept a payment order unless it
has agreed or is bound by a funds transfer system rule to do so.
Thus, provision is made to allow the receiving bank to prevent
acceptance of the order. This principle is consistently followed if
the receiving bank is not the beneficiary's bank. If the receiving
bank is not the beneficiary's bank, acceptance is in the control of
the receiving bank because it occurs only if the order is executed.
But in the case of the beneficiary's bank acceptance can occur by
passive receipt of payment under subsection (b)(2) or (3). In the
case of a payment made by Fedwire acceptance cannot be
prevented. In other cases the beneficiary's bank can prevent
acceptance by giving notice of rejection to the sender before
payment occurs under Section 4A-403(a)(1) or (2). A minor
exception to the ability of the beneficiary's bank to reject is stated
in Section 4A-502(c)(3).
Under subsection (b)(3) acceptance occurs at the opening of the
next funds transfer business day of the beneficiary's bank following
the payment date unless the bank rejected the order before that time
or it rejects within one hour after that time. In some cases the
sender and the beneficiary's bank may not be in the same time zone
or the beginning of the business day of the sender and the funds
transfer business day of the beneficiary's bank may not coincide.
For example, the sender may be located in California and the
beneficiary's bank in New York. Since in most cases notice of
rejection would be communicated electronically or by telephone, it
might not be feasible for the bank to give notice before one hour
after the opening of the funds transfer business day in New York
because at that hour, the sender's business day may not have started
in California. For that reason, there are alternative deadlines stated
in subsection (b)(3). In the case stated, the bank acts in time if it
gives notice within one hour after the opening of the business day
of the sender. But if the notice of rejection is received by the
sender after the payment date, the bank is obliged to pay interest to
the sender if the sender's account does not bear interest. In that
case the bank had the use of funds of the sender that the sender
could reasonably assume would be used to pay the beneficiary. The
rate of interest is stated in Section 4A-506. If the sender receives
notice on the day after the payment date the sender is entitled to
one day's interest. If receipt of notice is delayed for more than one
day, the sender is entitled to interest for each additional day of
delay.
9. Subsection (d) applies only to a payment order by the
originator of a funds transfer to the originator's bank and it refers
to the following situation. On April 1, Originator instructs Bank A
to make a payment on April 15 to the account of Beneficiary in
Bank B. By mistake, on April 1, Bank A executes Originator's
payment order by issuing a payment order to Bank B instructing
immediate payment to Beneficiary. Bank B credited Beneficiary's
account and immediately released the funds to Beneficiary. Under
subsection (d) no acceptance by Bank A occurred on April 1 when
Originator's payment order was executed because acceptance cannot
occur before the execution date which in this case would be April
15 or shortly before that date. Section 4A-301(b). Under Section
4A-402(c), Originator is not obliged to pay Bank A until the order
is accepted and that can't occur until the execution date. But Bank
A is required to pay Bank B when Bank B accepted Bank A's order
on April 1. Unless Originator and Beneficiary are the same person,
in almost all cases Originator is paying a debt owed to Beneficiary
and early payment does not injure Originator because Originator
does not have to pay Bank A until the execution date. Section
4A-402(c). Bank A takes the interest loss. But suppose that on
April 3, Originator concludes that no debt was owed to Beneficiary
or that the debt was less than the amount of the payment order.
Under Section 4A-211(b) Originator can cancel its payment order if
Bank A has not accepted. If early execution of Originator's
payment order is acceptance, Originator can suffer a loss because
cancellation after acceptance is not possible without the consent of
Bank A and Bank B. Section 4A-211(c). If Originator has to pay
Bank A, Originator would be required to seek recovery of the
money from Beneficiary. Subsection (d) prevents this result and
puts the risk of loss on Bank A by providing that the early
execution does not result in acceptance until the execution date.
Since on April 3 Originator's order was not yet accepted, Originator
can cancel it under Section 4A-211(b). The result is that Bank A is
not entitled to payment from Originator but is obliged to pay Bank
B. Bank A has paid Beneficiary by mistake. If Originator's
payment order is cancelled, Bank A becomes the originator of an
erroneous funds transfer to Beneficiary. Bank A has the burden of
recovering payment from Beneficiary on the basis of a payment by
mistake. If Beneficiary received the money in good faith in
payment of a debt owed to Beneficiary by Originator, the law of
mistake and restitution may allow Beneficiary to keep all or part of
the money received. If Originator owed money to Beneficiary,
Bank A has paid Originator's debt and, under the law of restitution,
which applies pursuant to Section 1-103, Bank A is subrogated to
Beneficiary's rights against Originator on the debt.
If Bank A is the Beneficiary's bank and Bank A credited
Beneficiary's account and released the funds to Beneficiary on April
1, the analysis is similar. If Originator's order is cancelled, Bank A
has paid Beneficiary by mistake. The right of Bank A to recover
the payment from Beneficiary is similar to Bank A's rights in the
preceding paragraph.
Section 36-4A-210. Rejection of payment order.
(a) A payment order is rejected by the receiving bank by a
notice of rejection transmitted to the sender orally, electronically, or
in writing. A notice of rejection need not use any particular words
and is sufficient if it indicates that the receiving bank is rejecting
the order or will not execute or pay the order. Rejection is
effective when the notice is given if transmission is by a means that
is reasonable in the circumstances. If notice of rejection is given by
a means that is not reasonable, rejection is effective when the notice
is received. If an agreement of the sender and receiving bank
establishes the means to be used to reject a payment order, (i) any
means complying with the agreement is reasonable and (ii) any
means not complying is not reasonable unless no significant delay
in receipt of the notice resulted from the use of the noncomplying
means.
(b) This subsection applies if a receiving bank other than the
beneficiary's bank fails to execute a payment order despite the
existence on the execution date of a withdrawable credit balance in
an authorized account of the sender sufficient to cover the order. If
the sender does not receive notice of rejection of the order on the
execution date and the authorized account of the sender does not
bear interest, the bank is obliged to pay interest to the sender on the
amount of the order for the number of days elapsing after the
execution date to the earlier of the day the order is canceled
pursuant to Section 36-4A-211(d) or the day the sender receives
notice or learns that the order was not executed, counting the final
day of the period as an elapsed day. If the withdrawable credit
balance during that period falls below the amount of the order, the
amount of interest is reduced accordingly.
(c) If a receiving bank suspends payments, all unaccepted
payment orders issued to it are deemed rejected at the time the bank
suspends payments.
(d) Acceptance of a payment order precludes a later rejection
of the order. Rejection of a payment order precludes a later
acceptance of the order.
OFFICIAL COMMENT
1. With respect to payment orders issued to a receiving bank
other than the beneficiary's bank, notice of rejection is not
necessary to prevent acceptance of the order. Acceptance can occur
only if the receiving bank executes the order. Section 4A-209(a).
But notice of rejection will routinely be given by such a bank in
cases in which the bank cannot or is not willing to execute the
order for some reason. There are many reasons why a bank doesn't
execute an order. The payment order may not clearly instruct the
receiving bank because of some ambiguity in the order or an
internal inconsistency. In some cases, the receiving bank may not
be able to carry out the instruction because of equipment failure,
credit limitations on the receiving bank, or some other factor which
makes proper execution of the order infeasible. In those cases
notice of rejection is a means of informing the sender of the facts
so that a corrected payment order can be transmitted or the sender
can seek alternate means of completing the funds transfer. The
other major reason for not executing an order is that the sender's
account is insufficient to cover the order and the receiving bank is
not willing to give credit to the sender. If the sender's account is
sufficient to cover the order and the receiving bank chooses not to
execute the order, notice of rejection is necessary to prevent liability
to pay interest to the sender if the case falls within Section
4A-210(b) which is discussed in Comment 3.
2. A payment order to the beneficiary's bank can be accepted by
inaction of the bank. Section 4A-209(b)(2) and (3). To prevent
acceptance under those provisions it is necessary for the receiving
bank to send notice of rejection before acceptance occurs.
Subsection (a) of Section 4A-210 states the rule that rejection is
accomplished by giving notice of rejection. This incorporates the
definitions in Section 1-201(26). Rejection is effective when notice
is given if it is given by a means that is reasonable in the
circumstances. Otherwise it is effective when the notice is received.
The question of when rejection is effective is important only in the
relatively few cases under subsection (b)(2) and (3) in which a
notice of rejection is necessary to prevent acceptance. The question
of whether a particular means is reasonable depends on the facts in
a particular case. In a very large percentage of cases the sender and
the receiving bank will be in direct electronic contact with each
other and in those cases a notice of rejection can be transmitted
instantaneously. Since time is of the essence in a large proportion
of funds transfers, some quick means of transmission would usually
be required, but this is not always the case. The parties may
specify by agreement the means by which communication between
the parties is to be made.
3. Subsection (b) deals with cases in which a sender does not
learn until after the execution date that the sender's order has not
been executed. It applies only to cases in which the receiving bank
was assured of payment because the sender's account was sufficient
to cover the order. Normally, the receiving bank will accept the
sender's order if it is assured of payment, but there may be some
cases in which the bank chooses to reject. Unless the receiving
bank had obligated itself by agreement to accept, the failure to
accept is not wrongful. There is no duty of the receiving bank to
accept the payment order unless it is obliged to accept by express
agreement. Section 4A-212. But even if the bank has not acted
wrongfully, the receiving bank had the use of the sender's money
that the sender could reasonably assume was to be the source of
payment of the funds transfer. Until the sender learns that the order
was not accepted the sender is denied the use of that money.
Subsection (b) obliges the receiving bank to pay interest to the
sender as restitution unless the sender receives notice of rejection on
the execution date. The time of receipt of notice is determined
pursuant to Section 1-201(27). The rate of interest is stated in
Section 4A-506. If the sender receives notice on the day after the
execution date, the sender is entitled to one day's interest. If
receipt of notice is delayed for more than one day, the sender is
entitled to interest for each additional day of delay.
4. Subsection (d) treats acceptance and rejection as mutually
exclusive. If a payment order has been accepted, rejection of that
order becomes impossible. If a payment order has been rejected it
cannot be accepted later by the receiving bank. Once notice of
rejection has been given, the sender may have acted on the notice
by making the payment through other channels. If the receiving
bank wants to act on a payment order that it has rejected it has to
obtain the consent of the sender. In that case the consent of the
sender would amount to the giving of a second payment order that
substitutes for the rejected first order. If the receiving bank
suspends payments (Section 4-104(1)(k)), subsection (c) provides
that unaccepted payment orders are deemed rejected at the time
suspension of payments occurs. This prevents acceptance by
passage of time under Section 4A-209(b)(3).
Section 36-4A-211. Cancellation and amendment of payment
order.
(a) A communication of the sender of a payment order
canceling or amending the order may be transmitted to the receiving
bank orally, electronically, or in writing. If a security procedure is
in effect between the sender and the receiving bank, the
communication is not effective to cancel or amend the order unless
the communication is verified pursuant to the security procedure or
the bank agrees to the cancellation or amendment.
(b) Subject to subsection (a), a communication by the sender
canceling or amending a payment order is effective to cancel or
amend the order if notice of the communication is received at a
time and in a manner affording the receiving bank a reasonable
opportunity to act on the communication before the bank accepts
the payment order.
(c) After a payment order has been accepted, cancellation or
amendment of the order is not effective unless the receiving bank
agrees or a funds-transfer system rule allows cancellation or
amendment without agreement of the bank.
(1) With respect to a payment order accepted by a receiving
bank other than the beneficiary's bank, cancellation or amendment
is not effective unless a conforming cancellation or amendment of
the payment order issued by the receiving bank is also made.
(2) With respect to a payment order accepted by the
beneficiary's bank, cancellation or amendment is not effective
unless the order was issued in execution of an unauthorized
payment order, or because of a mistake by a sender in the funds
transfer which resulted in the issuance of a payment order (i) that is
a duplicate of a payment order previously issued by the sender, (ii)
that orders payment to a beneficiary not entitled to receive payment
from the originator, or (iii) that orders payment in an amount
greater than the amount the beneficiary was entitled to receive from
the originator. If the payment order is canceled or amended, the
beneficiary's bank is entitled to recover from the beneficiary any
amount paid to the beneficiary to the extent allowed by the law
governing mistake and restitution.
(d) An unaccepted payment order is canceled by operation of
law at the close of the fifth funds-transfer business day of the
receiving bank after the execution date or payment date of the
order.
(e) A canceled payment order cannot be accepted. If an
accepted payment order is canceled, the acceptance is nullified and
no person has any right or obligation based on the acceptance.
Amendment of a payment order is deemed to be cancellation of the
original order at the time of amendment and issue of a new
payment order in the amended form at the same time.
(f) Unless otherwise provided in an agreement of the parties
or in a funds-transfer system rule, if the receiving bank, after
accepting a payment order, agrees to cancellation or amendment of
the order by the sender or is bound by a funds-transfer system rule
allowing cancellation or amendment without the bank's agreement,
the sender, whether or not cancellation or amendment is effective, is
liable to the bank for any loss and expenses, including reasonable
attorney's fees, incurred by the bank as a result of the cancellation
or amendment or attempted cancellation or amendment.
(g) A payment order is not revoked by the death or legal
incapacity of the sender unless the receiving bank knows of the
death or of an adjudication of incapacity by a court of competent
jurisdiction and has reasonable opportunity to act before acceptance
of the order.
(h) A funds-transfer system rule is not effective to the extent
it conflicts with subsection (c)(2).
OFFICIAL COMMENT
1. This section deals with cancellation and amendment of
payment orders. It states the conditions under which cancellation or
amendment is both effective and rightful. There is no concept of
wrongful cancellation or amendment of a payment order. If the
conditions stated in this section are not met the attempted
cancellation or amendment is not effective. If the stated conditions
are met the cancellation or amendment is effective and rightful.
The sender of a payment order may want to withdraw or change the
order because the sender has had a change of mind about the
transaction or because the payment order was erroneously issued or
for any other reason. One common situation is that of multiple
transmission of the same order. The sender that mistakenly
transmits the same order twice wants to correct the mistake by
canceling the duplicate order. Or, a sender may have intended to
order a payment of $1,000,000 but mistakenly issued an order to
pay $10,000,000. In this case the sender might try to correct the
mistake by canceling the order and issuing another order in the
proper amount. Or, the mistake could be corrected by amending
the order to change it to the proper amount. Whether the error is
corrected by amendment or cancellation and reissue the net result is
the same. This result is stated in the last sentence of subsection (e).
2. Subsection (a) allows a cancellation or amendment of a
payment order to be communicated to the receiving bank
"orally, electronically, or in writing." The quoted
phrase is consistent with the language of Section 4A-103(a)
applicable to payment orders. Cancellations and amendments are
normally subject to verification pursuant to security procedures to
the same extent as payment orders. Subsection (a) recognizes this
fact by providing that in cases in which there is a security
procedure in effect between the sender and the receiving bank the
bank is not bound by a communication canceling or amending an
order unless verification has been made. This is necessary to
protect the bank because under subsection (b) a cancellation or
amendment can be effective by unilateral action of the sender.
Without verification the bank cannot be sure whether the
communication was or was not effective to cancel or amend a
previously verified payment order.
3. If the receiving bank has not yet accepted the order, there is
no reason why the sender should not be able to cancel or amend the
order unilaterally so long as the requirements of subsections (a) and
(b) are met. If the receiving bank has accepted the order, it is
possible to cancel or amend but only if the requirements of
subsection (c) are met.
First consider the case of a receiving bank other than the
beneficiary's bank. If the bank has not yet accepted the order, the
sender can unilaterally cancel or amend. The communication
amending or canceling the payment order must be received in time
to allow the bank to act on it before the bank issues its payment
order in execution of the sender's order. The time that the sender's
communication is received is governed by Section 4A-106. If a
payment order does not specify a delayed payment date or
execution date, the order will normally be executed shortly after
receipt. Thus, as a practical matter, the sender will have very little
time in which to instruct cancellation or amendment before
acceptance. In addition, a receiving bank will normally have
cut-off times for receipt of such communications, and the receiving
bank is not obliged to act on communications received after the
cut-off hour. Cancellation by the sender after execution of the
order by the receiving bank requires the agreement of the bank
unless a funds transfer rule otherwise provides. Subsection (c).
Although execution of the sender's order by the receiving bank
does not itself impose liability on the receiving bank (under Section
4A-402 no liability is incurred by the receiving bank to pay its
order until it is accepted), it would commonly be the case that
acceptance follows shortly after issuance. Thus, as a practical
matter, a receiving bank that has executed a payment order will
incur a liability to the next bank in the chain before it would be
able to act on the cancellation request of its customer. It is
unreasonable to impose on the receiving bank a risk of loss with
respect to a cancellation request without the consent of the receiving
bank.
The statute does not state how or when the agreement of the
receiving bank must be obtained for cancellation after execution.
The receiving bank's consent could be obtained at the time
cancellation occurs or it could be based on a preexisting agreement.
Or, a funds transfer system rule could provide that cancellation can
be made unilaterally by the sender. By virtue of that rule any
receiving bank covered by the rule is bound. Section 4A-501. If
the receiving bank has already executed the sender's order, the bank
would not consent to cancellation unless the bank to which the
receiving bank has issued its payment order consents to cancellation
of that order. It makes no sense to allow cancellation of a payment
order unless all subsequent payment orders in the funds transfer that
were issued because of the cancelled payment order are also
cancelled. Under subsection (c)(1), if a receiving bank consents to
cancellation of the payment order after it is executed, the
cancellation is not effective unless the receiving bank also cancels
the payment order issued by the bank.
4. With respect to a payment order issued to the beneficiary's
bank, acceptance is particularly important because it creates liability
to pay the beneficiary, it defines when the originator pays its
obligation to the beneficiary, and it defines when any obligation for
which the payment is made is discharged. Since acceptance affects
the rights of the originator and the beneficiary it is not appropriate
to allow the beneficiary's bank to agree to cancellation or
amendment except in unusual cases. Except as provided in
subsection (c)(2), cancellation or amendment after acceptance by the
beneficiary's bank is not possible unless all parties affected by the
order agree. Under subsection (c)(2), cancellation or amendment is
possible only in the four cases stated. The following examples
illustrate subsection (c)(2):
Case #1. Originator's Bank executed a payment order
issued in the name of its customer as sender. The order was not
authorized by the customer and was fraudulently issued.
Beneficiary's Bank accepted the payment order issued by
Originator's Bank. Under subsection (c)(2) Originator's Bank can
cancel the order if Beneficiary's Bank consents. It doesn't make
any difference whether the payment order that Originator's Bank
accepted was or was not enforceable against the customer under
Section 4A-202(b). Verification under that provision is important
in determining whether Originator's Bank or the customer has the
risk of loss, but it has no relevance under Section 4A-211(c)(2).
Whether or not verified, the payment order was not authorized by
the customer. Cancellation of the payment order to Beneficiary's
Bank causes the acceptance of Beneficiary's Bank to be nullified.
Subsection (e). Beneficiary's Bank is entitled to recover payment
from the beneficiary to the extent allowed by the law of mistake
and restitution. In this kind of case the beneficiary is usually a
party to the fraud who has no right to receive or retain payment of
the order.
Case #2. Originator owed Beneficiary $1,000,000 and
ordered Bank A to pay that amount to the account of Beneficiary in
Bank B. Bank A issued a complying order to Bank B, but by
mistake issued a duplicate order as well. Bank B accepted both
orders. Under subsection (c)(2)(i) cancellation of the duplicate
order could be made by Bank A with the consent of Bank B.
Beneficiary has no right to receive or retain payment of the
duplicate payment order if only $1,000,000 was owed by Originator
to Beneficiary. If Originator owed $2,000,000 to Beneficiary, the
law of restitution might allow Beneficiary to retain the $1,000,000
paid by Bank B on the duplicate order. In that case Bank B is
entitled to reimbursement from Bank A under subsection (f).
Case #3. Originator owed $1,000,000 to X. Intending
to pay X, Originator ordered Bank A to pay $1,000,000 to Y's
account in Bank B. Bank A issued a complying payment order to
Bank B which Bank B accepted by releasing the $1,000,000 to Y.
Under subsection (c)(2)(ii) Bank A can cancel its payment order to
Bank B with the consent of Bank B if Y was not entitled to receive
payment from Originator. Originator can also cancel its order to
Bank A with Bank A's consent. Subsection (c) (1). Bank B may
recover the $1,000,000 from Y unless the law of mistake and
restitution allows Y to retain some or all of the amount paid. If no
debt was owed to Y, Bank B should have a right of recovery.
Case #4. Originator owed Beneficiary $10,000. By
mistake Originator ordered Bank A to pay $1,000,000 to the
account of Beneficiary in Bank B. Bank A issued a complying
order to Bank B which accepted by notifying Beneficiary of its
right to withdraw $1,000,000. Cancellation is permitted in this case
under subsection (c)(2)(iii). If Bank B paid Beneficiary it is
entitled to recover the payment except to the extent the law of
mistake and restitution allows Beneficiary to retain payment. In
this case Beneficiary might be entitled to retain $10,000, the
amount of the debt owed to Beneficiary. If Beneficiary may retain
$10,000, Bank B would be entitled to $10,000 from Bank A
pursuant to subsection (f). In this case Originator also cancelled its
order. Thus Bank A would be entitled to $10,000 from Originator
pursuant to subsection (f).
5. Unless constrained by a funds transfer system rule, a
receiving bank may agree to cancellation or amendment of the
payment order under subsection (c) but is not required to do so
regardless of the circumstances. If the receiving bank has incurred
liability as a result of its acceptance of the sender's order, there are
substantial risks in agreeing to cancellation or amendment. This is
particularly true for a beneficiary's bank. Cancellation or
amendment after acceptance by the beneficiary's bank can be made
only in the four cases stated and the beneficiary's bank may not
have any way of knowing whether the requirements of subsection
(c) have been met or whether it will be able to recover payment
from the beneficiary that received payment. Even with indemnity
the beneficiary's bank may be reluctant to alienate its customer, the
beneficiary, by denying the customer the funds. Subsection (c)
leaves the decision to the beneficiary's bank unless the consent of
the beneficiary's bank is not required under a funds transfer system
rule or other interbank agreement. If a receiving bank agrees to
cancellation or amendment under subsection (c)(1) or (2), it is
automatically entitled to indemnification from the sender under
subsection (f). The indemnification provision recognizes that a
sender has no right to cancel a payment order after it is accepted by
the receiving bank. If the receiving bank agrees to cancellation, it
is doing so as an accommodation to the sender and it should not
incur a risk of loss in doing so.
6. Acceptance by the receiving bank of a payment order issued
by the sender is comparable to acceptance of an offer under the law
of contracts. Under that law the death or legal incapacity of an
offeror terminates the offer even though the offeree has no notice of
the death or incapacity. Restatement Second, Contracts Section 48.
Comment a. to that section states that the "rule seems to be a
relic of the obsolete view that a contract requires a 'meeting of
minds,' and it is out of harmony with the modern doctrine that a
manifestation of assent is effective without regard to actual mental
assent." Subsection (g), which reverses the Restatement rule
in the case of a payment order, is similar to Section 4-405(1) which
applies to checks. Subsection (g) does not address the effect of the
bankruptcy of the sender of a payment order before the order is
accepted, but the principle of subsection (g) has been recognized in
Bank of Marin v. England, 385 U.S. 99 (1966). Although
Bankruptcy Code Section 542(c) may not have been drafted with
wire transfers in mind, its language can be read to allow the
receiving bank to charge the sender's account for the amount of the
payment order if the receiving bank executed it in ignorance of the
bankruptcy.
7. Subsection (d) deals with stale payment orders. Payment
orders normally are executed on the execution date or the day after.
An order issued to the beneficiary's bank is normally accepted on
the payment date or the day after. If a payment order is not
accepted on its execution or payment date or shortly thereafter, it is
probable that there was some problem with the terms of the order
or the sender did not have sufficient funds or credit to cover the
amount of the order. Delayed acceptance of such an order is
normally not contemplated, but the order may not have been
cancelled by the sender. Subsection (d) provides for cancellation by
operation of law to prevent an unexpected delayed acceptance.
8. A funds transfer system rule can govern rights and obligations
between banks that are parties to payment orders transmitted over
the system even if the rule conflicts with Article 4A. In some
cases, however, a rule governing a transaction between two banks
can affect a third party in an unacceptable way. Subsection (h)
deals with such a case. A funds transfer system rule cannot allow
cancellation of a payment order accepted by the beneficiary's bank
if the rule conflicts with subsection (c)(2). Because rights of the
beneficiary and the originator are directly affected by acceptance,
subsection (c)(2) severely limits cancellation. These limitations
cannot be altered by funds transfer system rule.
Section 36-4A-212. Liability and duty of receiving bank
regarding unaccepted payment order.
If a receiving bank fails to accept a payment order that it is
obliged by express agreement to accept, the bank is liable for
breach of the agreement to the extent provided in the agreement or
in this chapter, but does not otherwise have any duty to accept a
payment order or, before acceptance, to take any action, or refrain
from taking action, with respect to the order except as provided in
this chapter or by express agreement. Liability based on acceptance
arises only when acceptance occurs as stated in Section 36-4A-209,
and liability is limited to that provided in this chapter. A receiving
bank is not the agent of the sender or beneficiary of the payment
order it accepts, or of any other party to the funds transfer, and the
bank owes no duty to any party to the funds transfer except as
provided in this chapter or by express agreement.
OFFICIAL COMMENT
With limited exceptions stated in this Article, the duties and
obligations of receiving banks that carry out a funds transfer arise
only as a result of acceptance of payment orders or of agreements
made by receiving banks. Exceptions are stated in Section
4A-209(b)(3) and Section 4A-210(b). A receiving bank is not like
a collecting bank under Article 4. No receiving bank, whether it be
an originator's bank, an intermediary bank, or a beneficiary's bank,
is an agent for any other party in the funds transfer.
PART 3
EXECUTION OF
SENDER'S PAYMENT ORDER BY RECEIVING
BANK
Section 36-4A-301. Execution and execution date.
(a) A payment order is `executed' by the receiving bank when
it issues a payment order intended to carry out the payment order
received by the bank. A payment order received by the
beneficiary's bank can be accepted but cannot be executed.
(b) `Execution date' of a payment order means the day on
which the receiving bank may properly issue a payment order in
execution of the sender's order. The execution date may be
determined by instruction of the sender but cannot be earlier than
the day the order is received and, unless otherwise determined, is
the day the order is received. If the sender's instruction states a
payment date, the execution date is the payment date or an earlier
date on which execution is reasonably necessary to allow payment
to the beneficiary on the payment date.
OFFICIAL COMMENT
1. The terms "executed," "execution" and
"execution date" are used only with respect to a
payment order to a receiving bank other than the beneficiary's
bank. The beneficiary's bank can accept the payment order that it
receives, but it does not execute the order. Execution refers to the
act of the receiving bank in issuing a payment order "intended
to carry out" the payment order that the bank received. A
receiving bank has executed an order even if the order issued by the
bank does not carry out the order received by the bank. For
example, the bank may have erroneously issued an order to the
wrong beneficiary, or in the wrong amount or to the wrong
beneficiary's bank. In each of these cases execution has occurred
but the execution is erroneous. Erroneous execution is covered in
Section 4A-303.
2. "Execution date" refers to the time a payment
order should be executed rather than the day it is actually executed.
Normally the sender will not specify an execution date, but most
payment orders are meant to be executed immediately. Thus, the
execution date is normally the day the order is received by the
receiving bank. It is common for the sender to specify a
"payment date" which is defined in Section 4A-401 as
"the day on which the amount of the order is payable to the
beneficiary by the beneficiary's bank." Except for automated
clearing house transfers, if a funds transfer is entirely within the
United States and the payment is to be carried out electronically,
the execution date is the payment date unless the order is received
after the payment date. If the payment is to be carried out through
an automated clearing house, execution may occur before the
payment date. In an ACH transfer the beneficiary is usually paid
one or two days after issue of the originator's payment order. The
execution date is determined by the stated payment date and is a
date before the payment date on which execution is reasonably
necessary to allow payment on the payment date. A funds transfer
system rule could also determine the execution date of orders
received by the receiving bank if both the sender and the receiving
bank are participants in the funds transfer system. The execution
date can be determined by the payment order itself or by separate
instructions of the sender or an agreement of the sender and the
receiving bank. The second sentence of subsection (b) must be read
in the light of Section 4A-106 which states that if a payment order
is received after the cut-off time of the receiving bank it may be
treated by the bank as received at the opening of the next funds
transfer business day.
3. Execution on the execution date is timely, but the order can
be executed before or after the execution date. Section 4A-209(d)
and Section 4A-402(c) state the consequences of early execution
and Section 4A-305(a) states the consequences of late execution.
Section 36-4A-302. Obligations of receiving bank in execution
of payment order.
(a) Except as provided in subsections (b) through (d), if the
receiving bank accepts a payment order pursuant to Section
36-4A-209(a), the bank has the following obligations in executing
the order:
(1) The receiving bank is obliged to issue, on the execution
date, a payment order complying with the sender's order and to
follow the sender's instructions concerning (i) any intermediary
bank or funds-transfer system to be used in carrying out the funds
transfer, or (ii) the means by which payment orders are to be
transmitted in the funds transfer. If the originator's bank issues a
payment order to an intermediary bank, the originator's bank is
obliged to instruct the intermediary bank according to the
instruction of the originator. An intermediary bank in the funds
transfer is similarly bound by an instruction given to it by the
sender of the payment order it accepts.
(2) If the sender's instruction states that the funds transfer
is to be carried out telephonically or by wire transfer or otherwise
indicates that the funds transfer is to be carried out by the most
expeditious means, the receiving bank is obliged to transmit its
payment order by the most expeditious available means, and to
instruct any intermediary bank accordingly. If a sender's
instruction states a payment date, the receiving bank is obliged to
transmit its payment order at a time and by means reasonably
necessary to allow payment to the beneficiary on the payment date
or as soon thereafter as is feasible.
(b) Unless otherwise instructed, a receiving bank executing a
payment order may (i) use any funds-transfer system if use of that
system is reasonable in the circumstances, and (ii) issue a payment
order to the beneficiary's bank or to an intermediary bank through
which a payment order conforming to the sender's order can
expeditiously be issued to the beneficiary's bank if the receiving
bank exercises ordinary care in the selection of the intermediary
bank. A receiving bank is not required to follow an instruction of
the sender designating a funds-transfer system to be used in
carrying out the funds transfer if the receiving bank, in good faith,
determines that it is not feasible to follow the instruction or that
following the instruction would unduly delay completion of the
funds transfer.
(c) Unless subsection (a)(2) applies or the receiving bank is
otherwise instructed, the bank may execute a payment order by
transmitting its payment order by first-class mail or by any means
reasonable in the circumstances. If the receiving bank is instructed
to execute the sender's order by transmitting its payment order by a
particular means, the receiving bank may issue its payment order by
the means stated or by any means as expeditious as the means
stated.
(d) Unless instructed by the sender, (i) the receiving bank may
not obtain payment of its charges for services and expenses in
connection with the execution of the sender's order by issuing a
payment order in an amount equal to the amount of the sender's
order less the amount of the charges, and (ii) may not instruct a
subsequent receiving bank to obtain payment of its charges in the
same manner.
OFFICIAL COMMENT
1. In the absence of agreement, the receiving bank is not obliged
to execute an order of the sender. Section 4A-212. Section 4A-302
states the manner in which the receiving bank may execute the
sender's order if execution occurs. Subsection (a)(1) states the
residual rule. The payment order issued by the receiving bank must
comply with the sender's order and, unless some other rule is stated
in the section, the receiving bank is obliged to follow any
instruction of the sender concerning which funds transfer system is
to be used, which intermediary banks are to be used, and what
means of transmission is to be used. The instruction of the sender
may be incorporated in the payment order itself or may be given
separately. For example, there may be a master agreement between
the sender and receiving bank containing instructions governing
payment orders to be issued from time to time by the sender to the
receiving bank. In most funds transfers, speed is a paramount
consideration. A sender that wants assurance that the funds transfer
will be expeditiously completed can specify the means to be used.
The receiving bank can follow the instructions literally or it can use
an equivalent means. For example, if the sender instructs the
receiving bank to transmit by telex, the receiving bank could use
telephone instead. Subsection (c). In most cases the sender will
not specify a particular means but will use a general term such as
"by wire" or "wire transfer" or "as
soon as possible." These words signify that the sender wants
a same-day transfer. In these cases the receiving bank is required
to use a telephonic or electronic communication to transmit its order
and is also required to instruct any intermediary bank to which it
issues its order to transmit by similar means. Subsection (a)(2). In
other cases, such as an automated clearing house transfer, a
same-day transfer is not contemplated. Normally the sender's
instruction or the context in which the payment order is received
makes clear the type of funds transfer that is appropriate. If the
sender states a payment date with respect to the payment order, the
receiving bank is obliged to execute the order at a time and in a
manner to meet the payment date if that is feasible. Subsection
(a)(2). This provision would apply to many ACH transfers made to
pay recurring debts of the sender. In other cases, involving
relatively small amounts, time may not be an important factor and
cost may be a more important element. Fast means, such as
telephone or electronic transmission, are more expensive than slow
means such as mailing. Subsection (c) states that in the absence of
instructions the receiving bank is given discretion to decide. It may
issue its payment order by first-class mail or by any means
reasonable in the circumstances. Section 4A-305 states the liability
of a receiving bank for breach of the obligations stated in Section
4A-302.
2. Subsection (b) concerns the choice of intermediary banks to
be used in completing the funds transfer, and the funds transfer
system to be used. If the receiving bank is not instructed about the
matter, it can issue an order directly to the beneficiary's bank or
can issue an order to an intermediary bank. The receiving bank
also has discretion concerning use of a funds transfer system. In
some cases it may be reasonable to use either an automated clearing
house system or a wire transfer system such as Fedwire or CHIPS.
Normally, the receiving bank will follow the instruction of the
sender in these matters, but in some cases it may be prudent for the
bank not to follow instructions. The sender may have designated a
funds transfer system to be used in carrying out the funds transfer,
but it may not be feasible to use the designated system because of
some impediment such as a computer breakdown which prevents
prompt execution of the order. The receiving bank is permitted to
use an alternate means of transmittal in a good faith effort to
execute the order expeditiously. The same leeway is not given to
the receiving bank if the sender designates an intermediary bank
through which the funds transfer is to be routed. The sender's
designation of that intermediary bank may mean that the
beneficiary's bank is expecting to obtain a credit from that
intermediary bank and may have relied on that anticipated credit. If
the receiving bank uses another intermediary bank the expectations
of the beneficiary's bank may not be realized. The receiving bank
could choose to route the transfer to another intermediary bank and
then to the designated intermediary bank if there were some reason
such as a lack of a correspondent-bank relationship or a bilateral
credit limitation, but the designated intermediary bank cannot be
circumvented. To do so violates the sender's instructions.
3. The normal rule, under subsection (a)(1), is that the receiving
bank, in executing a payment order, is required to issue a payment
order that complies as to amount with that of the sender's order. In
most cases the receiving bank issues an order equal to the amount
of the sender's order and makes a separate charge for services and
expenses in executing the sender's order. In some cases,
particularly if it is an intermediary bank that is executing an order,
charges are collected by deducting them from the amount of the
payment order issued by the executing bank. If that is done, the
amount of the payment order accepted by the beneficiary's bank
will be slightly less than the amount of the originator's payment
order. For example, Originator, in order to pay an obligation of
$1,000,000 owed to Beneficiary, issues a payment order to
Originator's Bank to pay $1,000,000 to the account of Beneficiary
in Beneficiary's Bank. Originator's Bank issues a payment order to
Intermediary Bank for $1,000,000 and debits Originator's account
for $1,000,010. The extra $10 is the fee of Originator's Bank.
Intermediary Bank executes the payment order of Originator's Bank
by issuing a payment order to Beneficiary's Bank for $999,990, but
under Section 4A-402(c) is entitled to receive $1,000,000 from
Originator's Bank. The $10 difference is the fee of Intermediary
Bank. Beneficiary's Bank credits Beneficiary's account for
$999,990. When Beneficiary's Bank accepts the payment order of
Intermediary Bank the result is a payment of $999,990 from
Originator to Beneficiary. Section 4A-406(a). If that payment
discharges the $1,000,000 debt, the effect is that Beneficiary has
paid the charges of Intermediary Bank and Originator has paid the
charges of Originator's Bank. Subsection (d) of Section 4A-302
allows Intermediary Bank to collect its charges by deducting them
from the amount of the payment order, but only if instructed to do
so by Originator's Bank. Originator's Bank is not authorized to
give that instruction to Intermediary Bank unless Originator
authorized the instruction. Thus, Originator can control how the
charges of Originator's Bank and Intermediary Bank are to be paid.
Subsection (d) does not apply to charges of Beneficiary's Bank to
Beneficiary.
In the case discussed in the preceding paragraph the $10 charge
is trivial in relation to the amount of the payment and it may not be
important to Beneficiary how the charge is paid. But it may be
very important if the $1,000,000 obligation represented the price of
exercising a right such as an option favorable to Originator and
unfavorable to Beneficiary. Beneficiary might well argue that it
was entitled to receive $1,000,000. If the option was exercised
shortly before its expiration date, the result could be loss of the
option benefit because the required payment of $1,000,000 was not
made before the option expired. Section 4A-406(c) allows
Originator to preserve the option benefit. The amount received by
Beneficiary is deemed to be $1,000,000 unless Beneficiary demands
the $10 and Originator does not pay it.
Section 36-4A-303. Erroneous execution of payment order.
(a) A receiving bank that (i) executes the payment order of
the sender by issuing a payment order in an amount greater than the
amount of the sender's order, or (ii) issues a payment order in
execution of the sender's order and then issues a duplicate order, is
entitled to payment of the amount of the sender's order under
Section 36-4A-402(c) if that subsection is otherwise satisfied. The
bank is entitled to recover from the beneficiary of the erroneous
order the excess payment received to the extent allowed by the law
governing mistake and restitution.
(b) A receiving bank that executes the payment order of the
sender by issuing a payment order in an amount less than the
amount of the sender's order is entitled to payment of the amount
of the sender's order under Section 36-4A-402(c) if (i) that
subsection is otherwise satisfied and (ii) the bank corrects its
mistake by issuing an additional payment order for the benefit of
the beneficiary of the sender's order. If the error is not corrected,
the issuer of the erroneous order is entitled to receive or retain
payment from the sender of the order it accepted only to the extent
of the amount of the erroneous order. This subsection does not
apply if the receiving bank executes the sender's payment order by
issuing a payment order in an amount less than the amount of the
sender's order for the purpose of obtaining payment of its charges
for services and expenses pursuant to instruction of the sender.
(c) If a receiving bank executes the payment order of the
sender by issuing a payment order to a beneficiary different from
the beneficiary of the sender's order and the funds transfer is
completed on the basis of that error, the sender of the payment
order that was erroneously executed and all previous senders in the
funds transfer are not obliged to pay the payment orders they
issued. The issuer of the erroneous order is entitled to recover from
the beneficiary of the order the payment received to the extent
allowed by the law governing mistake and restitution.
OFFICIAL COMMENT
1. Section 4A-303 states the effect of erroneous execution of a
payment order by the receiving bank. Under Section 4A-402(c) the
sender of a payment order is obliged to pay the amount of the order
to the receiving bank if the bank executes the order, but the
obligation to pay is excused if the beneficiary's bank does not
accept a payment order instructing payment to the beneficiary of the
sender's order. If erroneous execution of the sender's order causes
the wrong beneficiary to be paid, the sender is not required to pay.
If erroneous execution causes the wrong amount to be paid the
sender is not obliged to pay the receiving bank an amount in excess
of the amount of the sender's order. Section 4A-303 takes
precedence over Section 4A-402(c) and states the liability of the
sender and the rights of the receiving bank in various cases of
erroneous execution.
2. Subsections (a) and (b) deal with cases in which the receiving
bank executes by issuing a payment order in the wrong amount. If
Originator ordered Originator's Bank to pay $1,000,000 to the
account of Beneficiary in Beneficiary's Bank, but Originator's Bank
erroneously instructed Beneficiary's Bank to pay $2,000,000 to
Beneficiary's account, subsection (a) applies. If Beneficiary's Bank
accepts the order of Originator's Bank, Beneficiary's Bank is
entitled to receive $2,000,000 from Originator's Bank, but
Originator's Bank is entitled to receive only $1,000,000 from
Originator. Originator's Bank is entitled to recover the
overpayment from Beneficiary to the extent allowed by the law
governing mistake and restitution. Originator's Bank would
normally have a right to recover the overpayment from Beneficiary,
but in unusual cases the law of restitution might allow Beneficiary
to keep all or part of the overpayment. For example, if Originator
owed $2,000,000 to Beneficiary and Beneficiary received the extra
$1,000,000 in good faith in discharge of the debt, Beneficiary may
be allowed to keep it. In this case Originator's Bank has paid an
obligation of Originator and under the law of restitution, which
applies through Section 1-103, Originator's Bank would be
subrogated to Beneficiary's rights against Originator on the
obligation paid by Originator's Bank.
If Originator's Bank erroneously executed Originator's order by
instructing Beneficiary's Bank to pay less than $1,000,000,
subsection (b) applies. If Originator's Bank corrects its error by
issuing another payment order to Beneficiary's Bank that results in
payment of $1,000,000 to Beneficiary, Originator's Bank is entitled
to payment of $1,000,000 from Originator. If the mistake is not
corrected, Originator's Bank is entitled to payment from Originator
only in the amount of the order issued by Originator's Bank.
3. Subsection (a) also applies to duplicate payment orders.
Assume Originator's Bank properly executes Originator's
$1,000,000 payment order and then by mistake issues a second
$1,000,000 payment order in execution of Originator's order. If
Beneficiary's Bank accepts both orders issued by Originator's Bank,
Beneficiary's Bank is entitled to receive $2,000,000 from
Originator's Bank but Originator's Bank is entitled to receive only
$1,000,000 from Originator. The remedy of Originator's Bank is
the same as that of a receiving bank that executes by issuing an
order in an amount greater than the sender's order. It may recover
the overpayment from Beneficiary to the extent allowed by the law
governing mistake and restitution and in a proper case as stated in
Comment 2 may have subrogation rights if it is not entitled to
recover from Beneficiary.
4. Suppose Originator instructs Originator's Bank to pay
$1,000,000 to Account #12345 in Beneficiary's Bank. Originator's
Bank erroneously instructs Beneficiary's Bank to pay $1,0000,000
to Account #12346 and Beneficiary's Bank accepted. Subsection
(c) covers this case. Originator is not obliged to pay its payment
order, but Originator's Bank is required to pay $1,000,000 to
Beneficiary's Bank. The remedy of Originator's Bank is to recover
$1,000,000 from the holder of Account #12346 that received
payment by mistake. Recovery based on the law of mistake and
restitution is described in Comment 2.
Section 36-4A-304. Duty of sender to report erroneously
executed payment order.
If the sender of a payment order that is erroneously executed as
stated in Section 36-4A-303 receives notification from the receiving
bank that the order was executed or that the sender's account was
debited with respect to the order, the sender has a duty to exercise
ordinary care to determine, on the basis of information available to
the sender, that the order was erroneously executed and to notify
the bank of the relevant facts within a reasonable time not
exceeding ninety days after the notification from the bank was
received by the sender. If the sender fails to perform that duty, the
bank is not obliged to pay interest on any amount refundable to the
sender under Section 36-4A-402(d) for the period before the bank
learns of the execution error. The bank is not entitled to any
recovery from the sender on account of a failure by the sender to
perform the duty stated in this section.
OFFICIAL COMMENT
This section is identical in effect to Section 4A-204 which
applies to unauthorized orders issued in the name of a customer of
the receiving bank. The rationale is stated in Comment 2 to Section
4A-204.
Section 36-4A-305. Liability for late or improper execution or
failure to execute payment order.
(a) If a funds transfer is completed but execution of a
payment order by the receiving bank in breach of Section
36-4A-302 results in delay in payment to the beneficiary, the bank
is obliged to pay interest to either the originator or the beneficiary
of the funds transfer for the period of delay caused by the improper
execution. Except as provided in subsection (c), additional damages
are not recoverable.
(b) If execution of a payment order by a receiving bank in
breach of Section 36-4A-302 results in (i) noncompletion of the
funds transfer, (ii) failure to use an intermediary bank designated by
the originator, or (iii) issuance of a payment order that does not
comply with the terms of the payment order of the originator, the
bank is liable to the originator for its expenses in the funds transfer
and for incidental expenses and interest losses, to the extent not
covered by subsection (a), resulting from the improper execution.
Except as provided in subsection (c), additional damages are not
recoverable.
(c) In addition to the amounts payable under subsections (a)
and (b), damages, including consequential damages, are recoverable
to the extent provided in an express written agreement of the
receiving bank.
(d) If a receiving bank fails to execute a payment order it was
obliged by express agreement to execute, the receiving bank is
liable to the sender for its expenses in the transaction and for
incidental expenses and interest losses resulting from the failure to
execute. Additional damages, including consequential damages, are
recoverable to the extent provided in an express written agreement
of the receiving bank, but are not otherwise recoverable.
(e) Reasonable attorney's fees are recoverable if demand for
compensation under subsection (a) or (b) is made and refused
before an action is brought on the claim. If a claim is made for
breach of an agreement under subsection (d) and the agreement
does not provide for damages, reasonable attorney's fees are
recoverable if demand for compensation under subsection (d) is
made and refused before an action is brought on the claim.
(f) Except as stated in this section, the liability of a receiving
bank under subsections (a) and (b) may not be varied by agreement.
OFFICIAL COMMENT
1. Subsection (a) covers cases of delay in completion of a funds
transfer resulting from an execution by a receiving bank in breach
of Section 4A-302(a). The receiving bank is obliged to pay interest
on the amount of the order for the period of the delay. The rate of
interest is stated in Section 4A-506. With respect to wire transfers
(other than ACH transactions) within the United States, the
expectation is that the funds transfer will be completed the same
day. In those cases, the originator can reasonably expect that the
originator's account will be debited on the same day as the
beneficiary's account is credited. If the funds transfer is delayed,
compensation can be paid either to the originator or to the
beneficiary. The normal practice is to compensate the beneficiary's
bank to allow that bank to compensate the beneficiary by
back-valuing the payment by the number of days of delay. Thus,
the beneficiary is in the same position that it would have been in if
the funds transfer had been completed on the same day. Assume on
Day 1, Originator's Bank issues its payment order to Intermediary
Bank which is received on that day. Intermediary Bank does not
execute that order until Day 2 when it issues an order to
Beneficiary's Bank which is accepted on that day. Intermediary
Bank complies with subsection (a) by paying one day's interest to
Beneficiary's Bank for the account of Beneficiary.
2. Subsection (b) applies to cases of breach of Section 4A-302
involving more than mere delay. In those cases the bank is liable
for damages for improper execution but they are limited to
compensation for interest losses and incidental expenses of the
sender resulting from the breach, the expenses of the sender in the
funds transfer and attorney's fees. This subsection reflects the
judgment that imposition of consequential damages on a bank for
commission of an error is not justified.
The leading common law case on the subject of consequential
damages is Evra Corp. v. Swiss Bank Corp., 673 F.2d 951
(7th Cir. 1982), in which Swiss Bank, an intermediary bank, failed
to execute a payment order. Because the beneficiary did not
receive timely payment the originator lost a valuable ship charter.
The lower court awarded the originator $2.1 million for lost profits
even though the amount of the payment order was only $27,000.
The Seventh Circuit reversed, in part on the basis of the common
law rule of Hadley v. Baxendale that consequential
damages may not be awarded unless the defendant is put on notice
of the special circumstances giving rise to them. Swiss Bank may
have known that the originator was paying the shipowner for the
hire of a vessel but did not know that a favorable charter would be
lost if the payment was delayed. "Electronic payments are
not so unusual as to automatically place a bank on notice of
extraordinary consequences if such a transfer goes awry. Swiss
Bank did not have enough information to infer that if it lost a
$27,000 payment order it would face liability in excess of $2
million." 673 F.2d at 956.
If Evra means that consequential damages can be
imposed if the culpable bank has notice of particular circumstances
giving rise to the damages, it does not provide an acceptable
solution to the problem of bank liability for consequential damages.
In the typical case transmission of the payment order is made
electronically. Personnel of the receiving bank that process
payment orders are not the appropriate people to evaluate the risk
of liability for consequential damages in relation to the price
charged for the wire transfer service. Even if notice is received by
higher level management personnel who could make an appropriate
decision whether the risk is justified by the price, liability based on
notice would require evaluation of payment orders on an individual
basis. This kind of evaluation is inconsistent with the high-speed,
low-price, mechanical nature of the processing system that
characterizes wire transfers. Moreover, in Evra the
culpable bank was an intermediary bank with which the originator
did not deal. Notice to the originator's bank would not bind the
intermediary bank, and it seems impractical for the originator's
bank to convey notice of this kind to intermediary banks in the
funds transfer. The success of the wholesale wire transfer industry
has largely been based on its ability to effect payment at low cost
and great speed. Both of these essential aspects of the modern wire
transfer system would be adversely affected by a rule that imposed
on banks liability for consequential damages. A banking industry
amicus brief in Evra stated: "Whether banks can
continue to make EFT services available on a widespread basis, by
charging reasonable rates, depends on whether they can do so
without incurring unlimited consequential risks. Certainly, no bank
would handle for $3.25 a transaction entailing potential liability in
the millions of dollars."
As the court in Evra also noted, the originator of the
funds transfer is in the best position to evaluate the risk that a funds
transfer will not be made on time and to manage that risk by
issuing a payment order in time to allow monitoring of the
transaction. The originator, by asking the beneficiary, can quickly
determine if the funds transfer has been completed. If the
originator has sent the payment order at a time that allows a
reasonable margin for correcting error, no loss is likely to result if
the transaction is monitored. The other published cases on this
issue reach the Evra result. Central Coordinates, Inc. v.
Morgan Guaranty Trust Co., 40 U.C.C. Rep. Serv. 1340
(N.Y.Sup.Ct. 1985), and Gatoil (U.S.A.), Inc. v. Forest Hill
State Bank, 1 U.C.C. Rep. Serv. 2d 171 (D.Md. 1986).
Subsection (c) allows the measure of damages in subsection (b)
to be increased by an express written agreement of the receiving
bank. An originator's bank might be willing to assume additional
responsibilities and incur additional liability in exchange for a
higher fee.
3. Subsection (d) governs cases in which a receiving bank has
obligated itself by express agreement to accept payment orders of a
sender. In the absence of such an agreement there is no obligation
by a receiving bank to accept a payment order. Section 4A-212.
The measure of damages for breach of an agreement to accept a
payment order is the same as that stated in subsection (b). As in
the case of subsection (b), additional damages, including
consequential damages, may be recovered to the extent stated in an
express written agreement of the receiving bank.
4. Reasonable attorney's fees are recoverable only in cases in
which damages are limited to statutory damages stated in subsection
(a), (b) and (d). If additional damages are recoverable because
provided for by an express written agreement, attorney's fees are
not recoverable. The rationale is that there is no need for statutory
attorney's fees in the latter case, because the parties have agreed to
a measure of damages which may or may not provide for attorney's
fees.
5. The effect of subsection (f) is to prevent reduction of a
receiving bank's liability under Section 4A-305.
SOUTH CAROLINA REPORTER'S COMMENT
No South Carolina case has applied the rule in Hadley v.
Baxendale, relating to the availability of consequential damages
in contract, to a funds transfer. Adoption of this section [Section
36-4A-305] modifies the potential common-law applicability of the
rule in Hadley in the funds transfer context. For a
discussion of this effect and the policies underlying Section
36-4A-305, see the Official Comment to this section.
PART 4
PAYMENT
Section 36-4A-401. Payment date.
`Payment date' of a payment order means the day on which the
amount of the order is payable to the beneficiary by the
beneficiary's bank. The payment date may be determined by
instruction of the sender but cannot be earlier than the day the order
is received by the beneficiary's bank and, unless otherwise
determined, is the day the order is received by the beneficiary's
bank.
OFFICIAL COMMENT
"Payment date" refers to the day the beneficiary's
bank is to pay the beneficiary. The payment date may be expressed
in various ways so long as it indicates the day the beneficiary is to
receive payment. For example, in ACH transfers the payment date
is the equivalent of "settlement date" or "effective
date." Payment date applies to the payment order issued to
the beneficiary's bank, but a payment order issued to a receiving
bank other than the beneficiary's bank may also state a date for
payment to the beneficiary. In the latter case, the statement of a
payment date is to instruct the receiving bank concerning time of
execution of the sender's order. Section 4A-301(b).
Section 36-4A-402. Obligation of sender to pay receiving bank.
(a) This section is subject to Sections 36-4A-205 and
36-4A-207.
(b) With respect to a payment order issued to the
beneficiary's bank, acceptance of the order by the bank obliges the
sender to pay the bank the amount of the order, but payment is not
due until the payment date of the order.
(c) This subsection is subject to subsection (e) and to Section
36-4A-303. With respect to a payment order issued to a receiving
bank other than the beneficiary's bank, acceptance of the order by
the receiving bank obliges the sender to pay the bank the amount of
the sender's order. Payment by the sender is not due until the
execution date of the sender's order. The obligation of that sender
to pay its payment order is excused if the funds transfer is not
completed by acceptance by the beneficiary's bank of a payment
order instructing payment to the beneficiary of that sender's
payment order.
(d) If the sender of a payment order pays the order and was
not obliged to pay all or part of the amount paid, the bank receiving
payment is obliged to refund payment to the extent the sender was
not obliged to pay. Except as provided in Sections 36-4A-204 and
36-4A-304, interest is payable on the refundable amount from the
date of payment.
(e) If a funds transfer is not completed as stated in subsection
(c) and an intermediary bank is obliged to refund payment as stated
in subsection (d) but is unable to do so because not permitted by
applicable law or because the bank suspends payments, a sender in
the funds transfer that executed a payment order in compliance with
an instruction, as stated in Section 36-4A-302(a)(1), to route the
funds transfer through that intermediary bank is entitled to receive
or retain payment from the sender of the payment order that it
accepted. The first sender in the funds transfer that issued an
instruction requiring routing through that intermediary bank is
subrogated to the right of the bank that paid the intermediary bank
to refund as stated in subsection (d).
(f) The right of the sender of a payment order to be excused
from the obligation to pay the order as stated in subsection (c) or to
receive refund under subsection (d) may not be varied by
agreement.
OFFICIAL COMMENT
1. Subsection (b) states that the sender of a payment order to the
beneficiary's bank must pay the order when the beneficiary's bank
accepts the order. At that point the beneficiary's bank is obliged to
pay the beneficiary. Section 4A-404(a). The last clause of
subsection (b) covers a case of premature acceptance by the
beneficiary's bank. In some funds transfers, notably automated
clearing house transfers, a beneficiary's bank may receive a
payment order with a payment date after the day the order is
received. The beneficiary's bank might accept the order before the
payment date by notifying the beneficiary of receipt of the order.
Although the acceptance obliges the beneficiary's bank to pay the
beneficiary, payment is not due until the payment date. The last
clause of subsection (b) is consistent with that result. The
beneficiary's bank is also not entitled to payment from the sender
until the payment date.
2. Assume that Originator instructs Bank A to order immediate
payment to the account of Beneficiary in Bank B. Execution of
Originator's payment order by Bank A is acceptance under Section
4A-209(a). Under the second sentence of Section 4A-402(c) the
acceptance creates an obligation of Originator to pay Bank A the
amount of the order. The last clause of that sentence deals with
attempted funds transfers that are not completed. In that event the
obligation of the sender to pay its payment order is excused.
Originator makes payment to Beneficiary when Bank B, the
beneficiary's bank, accepts a payment order for the benefit of
Beneficiary. Section 4A-406(a). If that acceptance by Bank B does
not occur, the funds transfer has miscarried because Originator has
not paid Beneficiary. Originator doesn't have to pay its payment
order, and if it has already paid it is entitled to refund of the
payment with interest. The rate of interest is stated in Section
4A-506. This "money-back guarantee" is an important
protection of Originator. Originator is assured that it will not lose
its money if something goes wrong in the transfer. For example,
risk of loss resulting from payment to the wrong beneficiary is
borne by some bank, not by Originator. The most likely reason for
noncompletion is a failure to execute or an erroneous execution of a
payment order by Bank A or an intermediary bank. Bank A may
have issued its payment order to the wrong bank or it may have
identified the wrong beneficiary in its order. The money-back
guarantee is particularly important to Originator if noncompletion of
the funds transfer is due to the fault of an intermediary bank rather
than Bank A. In that case Bank A must refund payment to
Originator, and Bank A has the burden of obtaining refund from the
intermediary bank that it paid.
Subsection (c) can result in loss if an intermediary bank suspends
payments. Suppose Originator instructs Bank A to pay to
Beneficiary's account in Bank B and to use Bank C as an
intermediary bank. Bank A executes Originator's order by issuing a
payment order to Bank C. Bank A pays Bank C. Bank C fails to
execute the order of Bank A and suspends payments. Under
subsections (c) and (d), Originator is not obliged to pay Bank A
and is entitled to refund from Bank A of any payment that it may
have made. Bank A is entitled to a refund from Bank C, but Bank
C is insolvent. Subsection (e) deals with this case. Bank A was
required to issue its payment order to Bank C because Bank C was
designated as an intermediary bank by Originator. Section
4A-302(a)(1). In this case Originator takes the risk of insolvency
of Bank C. Under subsection (e), Bank A is entitled to payment
from Originator and Originator is subrogated to the right of Bank A
under subsection (d) to refund of payment from Bank C.
3. A payment order is not like a negotiable instrument on which
the drawer or maker has liability. Acceptance of the order by the
receiving bank creates an obligation of the sender to pay the
receiving bank the amount of the order. That is the extent of the
sender's liability to the receiving bank and no other person has any
rights against the sender with respect to the sender's order.
Section 36-4A-403. Payment by sender to receiving bank.
(a) Payment of the sender's obligation under Section
36-4A-402 to pay the receiving bank occurs as follows:
(1) If the sender is a bank, payment occurs when the
receiving bank receives final settlement of the obligation through a
Federal Reserve Bank or through a funds-transfer system.
(2) If the sender is a bank and the sender (i) credited an
account of the receiving bank with the sender, or (ii) caused an
account of the receiving bank in another bank to be credited,
payment occurs when the credit is withdrawn or, if not withdrawn,
at midnight of the day on which the credit is withdrawable and the
receiving bank learns of that fact.
(3) If the receiving bank debits an account of the sender
with the receiving bank, payment occurs when the debit is made to
the extent the debit is covered by a withdrawable credit balance in
the account.
(b) If the sender and receiving bank are members of a
funds-transfer system that nets obligations multilaterally among
participants, the receiving bank receives final settlement when
settlement is complete in accordance with the rules of the system.
The obligation of the sender to pay the amount of a payment order
transmitted through the funds-transfer system may be satisfied, to
the extent permitted by the rules of the system, by setting off and
applying against the sender's obligation the right of the sender to
receive payment from the receiving bank of the amount of any
other payment order transmitted to the sender by the receiving bank
through the funds-transfer system. The aggregate balance of
obligations owed by each sender to each receiving bank in the
funds-transfer system may be satisfied, to the extent permitted by
the rules of the system, by setting off and applying against that
balance the aggregate balance of obligations owed to the sender by
other members of the system. The aggregate balance is determined
after the right of setoff stated in the second sentence of this
subsection has been exercised.
(c) If two banks transmit payment orders to each other under
an agreement that settlement of the obligations of each bank to the
other under Section 36-4A-402 will be made at the end of the day
or other period, the total amount owed with respect to all orders
transmitted by one bank shall be set off against the total amount
owed with respect to all orders transmitted by the other bank. To
the extent of the setoff, each bank has made payment to the other.
(d) In a case not covered by subsection (a), the time when
payment of the sender's obligation under Section 36-4A-402(b) or
36-4A-402(c) occurs is governed by applicable principles of law
that determine when an obligation is satisfied.
OFFICIAL COMMENT
1. This section defines when a sender pays the obligation stated
in Section 4A-402. If a group of two or more banks engage in
funds transfers with each other, the participating banks will
sometimes be senders and sometimes receiving banks. With respect
to payment orders other than Fedwires, the amounts of the various
payment orders may be credited and debited to accounts of one
bank with another or to a clearing house account of each bank and
amounts owed and amounts due are netted. Settlement is made
through a Federal Reserve Bank by charges to the Federal Reserve
accounts of the net debtor banks and credits to the Federal Reserve
accounts of the net creditor banks. In the case of Fedwires the
sender's obligation is settled by a debit to the Federal Reserve
account of the sender and a credit to the Federal Reserve account of
the receiving bank at the time the receiving bank receives the
payment order. Both of these cases are covered by subsection
(a)(1). When the Federal Reserve settlement becomes final the
obligation of the sender under Section 4A-402 is paid.
2. In some cases a bank does not settle an obligation owed to
another bank through a Federal Reserve Bank. This is the case if
one of the banks is a foreign bank without access to the Federal
Reserve payment system. In this kind of case, payment is usually
made by credits or debits to accounts of the two banks with each
other or to accounts of the two banks in a third bank. Suppose
Bank B has an account in Bank A. Bank A advises Bank B that its
account in Bank A has been credited $1,000,000 and that the credit
is immediately withdrawable. Bank A also instructs Bank B to pay
$1,000,000 to the account of Beneficiary in Bank B. This case is
covered by subsection (a)(2). Bank B may want to immediately
withdraw this credit. For example, it might do so by instructing
Bank A to debit the account and pay some third party. Payment by
Bank A to Bank B of Bank A's payment order occurs when the
withdrawal is made. Suppose Bank B does not withdraw the credit.
Since Bank B is the beneficiary's bank, one of the effects of receipt
of payment by Bank B is that acceptance of Bank A's payment
order automatically occurs at the time of payment. Section
4A-209(b)(2). Acceptance means that Bank B is obliged to pay
$1,000,000 to Beneficiary. Section 4A-404(a). Subsection (a)(2)
of Section 4A-403 states that payment does not occur until midnight
if the credit is not withdrawn. This allows Bank B an opportunity
to reject the order if it does not have time to withdraw the credit to
its account and it is not willing to incur the liability to Beneficiary
before it has use of the funds represented by the credit.
3. Subsection (a)(3) applies to a case in which the sender (bank
or nonbank) has a funded account in the receiving bank. If Sender
has an account in Bank and issues a payment order to Bank, Bank
can obtain payment from Sender by debiting the account of Sender,
which pays its Section 4A-402 obligation to Bank when the debit is
made.
4. Subsection (b) deals with multilateral settlements made
through a funds transfer system and is based on the CHIPS
settlement system. In a funds transfer system such as CHIPS,
which allows the various banks that transmit payment orders over
the system to settle obligations at the end of each day, settlement is
not based on individual payment orders. Each bank using the
system engages in funds transfers with many other banks using the
system. Settlement for any participant is based on the net credit or
debit position of that participant with all other banks using the
system. Subsection (b) is designed to make clear that the
obligations of any sender are paid when the net position of that
sender is settled in accordance with the rules of the funds transfer
system. This provision is intended to invalidate any argument,
based on common-law principles, that multilateral netting is not
valid because mutuality of obligation is not present. Subsection (b)
dispenses with any mutuality of obligation requirements.
Subsection (c) applies to cases in which two banks send payment
orders to each other during the day and settle with each other at the
end of the day or at the end of some other period. It is similar to
subsection (b) in that it recognizes that a sender's obligation to pay
a payment order is satisfied by a setoff. The obligations of each
bank as sender to the other as receiving bank are obligations of the
bank itself and not as representative of customers. These two
sections are important in the case of insolvency of a bank. They
make clear that liability under Section 4A-402 is based on the net
position of the insolvent bank after setoff.
5. Subsection (d) relates to the uncommon case in which the
sender doesn't have an account relationship with the receiving bank
and doesn't settle through a Federal Reserve Bank. An example
would be a customer that pays over the counter for a payment order
that the customer issues to the receiving bank. Payment would
normally be by cash, check or bank obligation. When payment
occurs is determined by law outside Article 4A.
Section 36-4A-404. Obligation of beneficiary's bank to pay and
give notice to beneficiary.
(a) Subject to Sections 36-4A-211(e), 36-4A-405(d), and
36-4A-405(e), if a beneficiary's bank accepts a payment order, the
bank is obliged to pay the amount of the order to the beneficiary of
the order. Payment is due on the payment date of the order, but if
acceptance occurs on the payment date after the close of the
funds-transfer business day of the bank, payment is due on the next
funds-transfer business day. If the bank refuses to pay after
demand by the beneficiary and receipt of notice of particular
circumstances that will give rise to consequential damages as a
result of nonpayment, the beneficiary may recover damages
resulting from the refusal to pay to the extent the bank had notice
of the damages, unless the bank proves that it did not pay because
of a reasonable doubt concerning the right of the beneficiary to
payment.
(b) If a payment order accepted by the beneficiary's bank
instructs payment to an account of the beneficiary, the bank is
obliged to notify the beneficiary of receipt of the order before
midnight of the next funds-transfer business day following the
payment date. If the payment order does not instruct payment to an
account of the beneficiary, the bank is required to notify the
beneficiary only if notice is required by the order. Notice may be
given by first-class mail or any other means reasonable in the
circumstances. If the bank fails to give the required notice, the
bank is obliged to pay interest to the beneficiary on the amount of
the payment order from the day notice should have been given until
the day the beneficiary learned of receipt of the payment order by
the bank. No other damages are recoverable. Reasonable
attorney's fees are also recoverable if demand for interest is made
and refused before an action is brought on the claim.
(c) The right of a beneficiary to receive payment and damages
as stated in subsection (a) may not be varied by agreement or a
funds-transfer system rule. The right of a beneficiary to be notified
as stated in subsection (b) may be varied by agreement of the
beneficiary or by a funds-transfer system rule if the beneficiary is
notified of the rule before initiation of the funds transfer.
OFFICIAL COMMENT
1. The first sentence of subsection (a) states the time when the
obligation of the beneficiary's bank arises. The second and third
sentences state when the beneficiary's bank must make funds
available to the beneficiary. They also state the measure of
damages for failure, after demand, to comply. Since the Expedited
Funds Availability Act, 12 U.S.C. 4001 et seq., also governs funds
availability in a funds transfer, the second and third sentences of
subsection (a) may be subject to preemption by that Act.
2. Subsection (a) provides that the beneficiary of an accepted
payment order may recover consequential damages if the
beneficiary's bank refuses to pay the order after demand by the
beneficiary if the bank at that time had notice of the particular
circumstances giving rise to the damages. Such damages are
recoverable only to the extent the bank had "notice of the
damages." The quoted phrase requires that the bank have
notice of the general type or nature of the damages that will be
suffered as a result of the refusal to pay and their general
magnitude. There is no requirement that the bank have notice of
the exact or even the approximate amount of the damages, but if the
amount of damages is extraordinary the bank is entitled to notice of
that fact. For example, in Evra Corp. v. Swiss Bank Corp.,
673 F.2d 951 (7th Cir. 1982), failure to complete a funds transfer
of only $27,000 required to retain rights to a very favorable ship
charter resulted in a claim for more than $2,000,000 of
consequential damages. Since it is not reasonably foreseeable that a
failure to make a relatively small payment will result in damages of
this magnitude, notice is not sufficient if the beneficiary's bank has
notice only that the $27,000 is necessary to retain rights on a ship
charter. The bank is entitled to notice that an exceptional amount
of damages will result as well. For example, there would be
adequate notice if the bank had been made aware that damages of
$1,000,000 or more might result.
3. Under the last clause of subsection (a) the beneficiary's bank
is not liable for damages if its refusal to pay was "because of
a reasonable doubt concerning the right of the beneficiary to
payment." Normally there will not be any question about the
right of the beneficiary to receive payment. Normally, the bank
should be able to determine whether it has accepted the payment
order and, if it has been accepted, the first sentence of subsection
(a) states that the bank is obliged to pay. There may be uncommon
cases, however, in which there is doubt whether acceptance
occurred. For example, if acceptance is based on receipt of
payment by the beneficiary's bank under Section 4A-403 (a)(1) or
(2), there may be cases in which the bank is not certain that
payment has been received. There may also be cases in which there
is doubt about whether the person demanding payment is the person
identified in the payment order as beneficiary of the order.
The last clause of subsection (a) does not apply to cases in which
a funds transfer is being used to pay an obligation and a dispute
arises between the originator and the beneficiary concerning
whether the obligation is in fact owed. For example, the originator
may try to prevent payment to the beneficiary by the beneficiary's
bank by alleging that the beneficiary is not entitled to payment
because of fraud against the originator or a breach of contract
relating to the obligation. The fraud or breach of contract claim of
the originator may be grounds for recovery by the originator from
the beneficiary after the beneficiary is paid, but it does not affect
the obligation of the beneficiary's bank to pay the beneficiary.
Unless the payment order has been cancelled pursuant to Section
4A-211(c), there is no excuse for refusing to pay the beneficiary
and, in a proper case, the refusal may result in consequential
damages. Except in the case of a book transfer, in which the
beneficiary's bank is also the originator's bank, the originator of a
funds transfer cannot cancel a payment order to the beneficiary's
bank, with or without the consent of that bank, because the
originator is not the sender of that order. Thus, the beneficiary's
bank may safely ignore any instruction by the originator to withhold
payment to the beneficiary.
4. Subsection (b) states the duty of the beneficiary's bank to
notify the beneficiary of receipt of the order. If acceptance occurs
under Section 4A-209(b)(1) the beneficiary is normally notified.
Thus, subsection (b) applies primarily to cases in which acceptance
occurs under Section 4A-209(b)(2) or (3). Notice under subsection
(b) is not required if the person entitled to the notice agrees or a
funds transfer system rule provides that notice is not required and
the beneficiary is given notice of the rule. In ACH transactions the
normal practice is not to give notice to the beneficiary unless notice
is requested by the beneficiary. This practice can be continued by
adoption of a funds transfer system rule. Subsection (a) is not
subject to variation by agreement or by a funds transfer system rule.
Section 36-4A-405. Payment by beneficiary's bank to
beneficiary.
(a) If the beneficiary's bank credits an account of the
beneficiary of a payment order, payment of the bank's obligation
under Section 36-4A-404(a) occurs when and to the extent (i) the
beneficiary is notified of the right to withdraw the credit, (ii) the
bank lawfully applies the credit to a debt of the beneficiary, or (iii)
funds with respect to the order are otherwise made available to the
beneficiary by the bank.
(b) If the beneficiary's bank does not credit an account of the
beneficiary of a payment order, the time when payment of the
bank's obligation under Section 36-4A-404(a) occurs is governed
by principles of law that determine when an obligation is satisfied.
(c) Except as stated in subsections (d) and (e), if the
beneficiary's bank pays the beneficiary of a payment order under a
condition to payment or agreement of the beneficiary giving the
bank the right to recover payment from the beneficiary if the bank
does not receive payment of the order, the condition to payment or
agreement is not enforceable.
(d) A funds-transfer system rule may provide that payments
made to beneficiaries of funds transfers made through the system
are provisional until receipt of payment by the beneficiary's bank of
the payment order it accepted. A beneficiary's bank that makes a
payment that is provisional under the rule is entitled to refund from
the beneficiary if (i) the rule requires that both the beneficiary and
the originator be given notice of the provisional nature of the
payment before the funds transfer is initiated, (ii) the beneficiary,
the beneficiary's bank, and the originator's bank agreed to be bound
by the rule, and (iii) the beneficiary's bank did not receive payment
of the payment order that it accepted. If the beneficiary is obliged
to refund payment to the beneficiary's bank, acceptance of the
payment order by the beneficiary's bank is nullified and no
payment by the originator of the funds transfer to the beneficiary
occurs under Section 36-4A-406.
(e) This subsection applies to a funds transfer that includes a
payment order transmitted over a funds-transfer system that (i) nets
obligations multilaterally among participants, and (ii) has in effect a
loss-sharing agreement among participants for the purpose of
providing funds necessary to complete settlement of the obligations
of one or more participants that do not meet their settlement
obligations. If the beneficiary's bank in the funds transfer accepts a
payment order and the system fails to complete settlement pursuant
to its rules with respect to any payment order in the funds transfer,
(i) the acceptance by the beneficiary's bank is nullified and no
person has any right or obligation based on the acceptance, (ii) the
beneficiary's bank is entitled to recover payment from the
beneficiary, (iii) no payment by the originator to the beneficiary
occurs under Section 36-4A-406, and (iv) subject to Section
36-4A-402(e), each sender in the funds transfer is excused from its
obligation to pay its payment order under Section 36-4A-402(c)
because the funds transfer has not been completed.
OFFICIAL COMMENT
1. This section defines when the beneficiary's bank pays the
beneficiary and when the obligation of the beneficiary's bank under
Section 4A-404 to pay the beneficiary is satisfied. In almost all
cases the bank will credit an account of the beneficiary when it
receives a payment order. In the typical case the beneficiary is paid
when the beneficiary is given notice of the right to withdraw the
credit. Subsection (a)(i). In some cases payment might be made to
the beneficiary not by releasing funds to the beneficiary, but by
applying the credit to a debt of the beneficiary. Subsection (a)(ii).
In this case the beneficiary gets the benefit of the payment order
because a debt of the beneficiary has been satisfied. The two
principal cases in which payment will occur in this manner are
setoff by the beneficiary's bank and payment of the proceeds of the
payment order to a garnishing creditor of the beneficiary. These
cases are discussed in Comment 2 to Section 4A-502.
2. If a beneficiary's bank releases funds to the beneficiary before
it receives payment from the sender of the payment order, it
assumes the risk that the sender may not pay the sender's order
because of suspension of payments or other reason. Subsection (c).
As stated in Comment 5 to Section 4A-209, the beneficiary's bank
can protect itself against this risk by delaying acceptance. But if
the bank accepts the order it is obliged to pay the beneficiary. If
the beneficiary's bank has given the beneficiary notice of the right
to withdraw a credit made to the beneficiary's account, the
beneficiary has received payment from the bank. Once payment
has been made to the beneficiary with respect to an obligation
incurred by the bank under Section 4A-404(a), the payment cannot
be recovered by the beneficiary's bank unless subsection (d) or (e)
applies. Thus, a right to withdraw a credit cannot be revoked if the
right to withdraw constituted payment of the bank's obligation.
This principle applies even if funds were released as a
"loan" (see Comment 5 to Section 4A-209), or were
released subject to a condition that they would be repaid in the
event the bank does not receive payment from the sender of the
payment order, or the beneficiary agreed to return the payment if
the bank did not receive payment from the sender.
3. Subsection (c) is subject to an exception stated in subsection
(d) which is intended to apply to automated clearing house
transfers. ACH transfers are made in batches. A beneficiary's
bank will normally accept, at the same time and as part of a single
batch, payment orders with respect to many different originator's
banks. Comment 2 to Section 4A-206. The custom in ACH
transactions is to release funds to the beneficiary early on the
payment date even though settlement to the beneficiary's bank does
not occur until later in the day. The understanding is that payments
to beneficiaries are provisional until the beneficiary's bank receives
settlement. This practice is similar to what happens when a
depositary bank releases funds with respect to a check forwarded
for collection. If the check is dishonored the bank is entitled to
recover the funds from the customer. ACH transfers are widely
perceived as check substitutes. Section 4A-405(d) allows the funds
transfer system to adopt a rule making payments to beneficiaries
provisional. If such a rule is adopted, a beneficiary's bank that
releases funds to the beneficiary will be able to recover the payment
if it doesn't receive payment of the payment order that it accepted.
There are two requirements with respect to the funds transfer
system rule. The beneficiary, the beneficiary's bank and the
originator's bank must all agree to be bound by the rule and the
rule must require that both the beneficiary and the originator be
given notice of the provisional nature of the payment before the
funds transfer is initiated. There is no requirement that the notice
be given with respect to a particular funds transfer. Once notice of
the provisional nature of the payment has been given, the notice is
effective for all subsequent payments to or from the person to
whom the notice was given. Subsection (d) provides only that the
funds transfer system rule must require notice to the beneficiary and
the originator. The beneficiary's bank will know what the rule
requires, but it has no way of knowing whether the originator's
bank complied with the rule. Subsection (d) does not require proof
that the originator received notice. If the originator's bank failed to
give the required notice and the originator suffered as a result, the
appropriate remedy is an action by the originator against the
originator's bank based on that failure. But the beneficiary's bank
will not be able to get the benefit of subsection (d) unless the
beneficiary had notice of the provisional nature of the payment
because subsection (d) requires an agreement by the beneficiary to
be bound by the rule. Implicit in an agreement to be bound by a
rule that makes a payment provisional is a requirement that notice
be given of what the rule provides. The notice can be part of the
agreement or separately given. For example, notice can be given
by providing a copy of the system's operating rules.
With respect to ACH transfers made through a Federal Reserve
Bank acting as an intermediary bank, the Federal Reserve Bank is
obliged under Section 4A-402(b) to pay a beneficiary's bank that
accepts the payment order. Unlike Fedwire transfers, under current
ACH practice a Federal Reserve Bank that processes a payment
order does not obligate itself to pay if the originator's bank fails to
pay the Federal Reserve Bank. It is assumed that the Federal
Reserve will use its right of preemption which is recognized in
Section 4A-107 to disclaim the Section 4A-402(b) obligation in
ACH transactions if it decides to retain the provisional payment
rule.
4. Subsection (e) is another exception to subsection (c). It refers
to funds transfer systems having loss-sharing rules described in the
subsection. CHIPS has proposed a rule that fits the description.
Under the CHIPS loss-sharing rule the CHIPS banks will have
agreed to contribute funds to allow the system to settle for payment
orders sent over the system during the day in the event that one or
more banks are unable to meet their settlement obligations.
Subsection (e) applies only if CHIPS fails to settle despite the
loss-sharing rule. Since funds under the loss-sharing rule will be
instantly available to CHIPS and will be in an amount sufficient to
cover any failure that can be reasonably anticipated, it is extremely
unlikely that CHIPS would ever fail to settle. Thus, subsection (e)
addresses an event that should never occur. If that event were to
occur, all payment orders made over the system would be canceled
under the CHIPS rule. Thus, no bank would receive settlement,
whether or not a failed bank was involved in a particular funds
transfer. Subsection (e) provides that each funds transfer in which
there is a payment order with respect to which there is a settlement
failure is unwound. Acceptance by the beneficiary's bank in each
funds transfer is nullified. The consequences of nullification are
that the beneficiary has no right to receive or retain payment by the
beneficiary's bank, no payment is made by the originator to the
beneficiary and each sender in the funds transfer is, subject to
Section 4A-402(e), not obliged to pay its payment order and is
entitled to refund under Section 4A-402(d) if it has already paid.
Section 36-4A-406. Payment by originator to beneficiary;
discharge of underlying obligation.
(a) Subject to Sections 36-4A-211(e), 36-4A-405(d), and
36-4A-405(e), the originator of a funds transfer pays the beneficiary
of the originator's payment order (i) at the time a payment order for
the benefit of the beneficiary is accepted by the beneficiary's bank
in the funds transfer and (ii) in an amount equal to the amount of
the order accepted by the beneficiary's bank, but not more than the
amount of the originator's order.
(b) If payment under subsection (a) is made to satisfy an
obligation, the obligation is discharged to the same extent discharge
would result from payment to the beneficiary of the same amount in
money, unless (i) the payment under subsection (a) was made by a
means prohibited by the contract of the beneficiary with respect to
the obligation, (ii) the beneficiary, within a reasonable time after
receiving notice of receipt of the order by the beneficiary's bank,
notified the originator of the beneficiary's refusal of the payment,
(iii) funds with respect to the order were not withdrawn by the
beneficiary or applied to a debt of the beneficiary, and (iv) the
beneficiary would suffer a loss that could reasonably have been
avoided if payment had been made by a means complying with the
contract. If payment by the originator does not result in discharge
under this section, the originator is subrogated to the rights of the
beneficiary to receive payment from the beneficiary's bank under
Section 36-4A-404(a).
(c) For the purpose of determining whether discharge of an
obligation occurs under subsection (b), if the beneficiary's bank
accepts a payment order in an amount equal to the amount of the
originator's payment order less charges of one or more receiving
banks in the funds transfer, payment to the beneficiary is deemed to
be in the amount of the originator's order unless upon demand by
the beneficiary the originator does not pay the beneficiary the
amount of the deducted charges.
(d) Rights of the originator or of the beneficiary of a funds
transfer under this section may be varied only by agreement of the
originator and the beneficiary.
OFFICIAL COMMENT
1. Subsection (a) states the fundamental rule of Article 4A that
payment by the originator to the beneficiary is accomplished by
providing to the beneficiary the obligation of the beneficiary's bank
to pay. Since this obligation arises when the beneficiary's bank
accepts a payment order, the originator pays the beneficiary at the
time of acceptance and in the amount of the payment order
accepted.
2. In a large percentage of funds transfers, the transfer is made
to pay an obligation of the originator. Subsection (a) states that the
beneficiary is paid by the originator when the beneficiary's bank
accepts a payment order for the benefit of the beneficiary. When
that happens the effect under subsection (b) is to substitute the
obligation of the beneficiary's bank for the obligation of the
originator. The effect is similar to that under Article 3 if a
cashier's check payable to the beneficiary had been taken by the
beneficiary. Normally, payment by funds transfer is sought by the
beneficiary because it puts money into the hands of the beneficiary
more quickly. As a practical matter the beneficiary and the
originator will nearly always agree to the funds transfer in advance.
Under subsection (b) acceptance by the beneficiary's bank will
result in discharge of the obligation for which payment was made
unless the beneficiary had made a contract with respect to the
obligation which did not permit payment by the means used. Thus,
if there is no contract of the beneficiary with respect to the means
of payment of the obligation, acceptance by the beneficiary's bank
of a payment order to the account of the beneficiary can result in
discharge.
3. Suppose Beneficiary's contract stated that payment of an
obligation owed by Originator was to be made by a cashier's check
of Bank A. Instead, Originator paid by a funds transfer to
Beneficiary's account in Bank B. Bank B accepted a payment order
for the benefit of Beneficiary by immediately notifying Beneficiary
that the funds were available for withdrawal. Before Beneficiary
had a reasonable opportunity to withdraw the funds Bank B
suspended payments. Under the unless clause of subsection (b)
Beneficiary is not required to accept the payment as discharging the
obligation owed by Originator to Beneficiary if Beneficiary's
contract means that Beneficiary was not required to accept payment
by wire transfer. Beneficiary could refuse the funds transfer as
payment of the obligation and could resort to rights under the
underlying contract to enforce the obligation. The rationale is that
Originator cannot impose the risk of Bank B's insolvency on
Beneficiary if Beneficiary had specified another means of payment
that did not entail that risk. If Beneficiary is required to accept
Originator's payment, Beneficiary would suffer a loss that would
not have occurred if payment had been made by a cashier's check
on Bank A, and Bank A has not suspended payments. In this case
Originator will have to pay twice. It is obliged to pay the amount
of its payment order to the bank that accepted it and has to pay the
obligation it owes to Beneficiary which has not been discharged.
Under the last sentence of subsection (b) Originator is subrogated to
Beneficiary's right to receive payment from Bank B under Section
4A-404(a).
4. Suppose Beneficiary's contract called for payment by a
Fedwire transfer to Bank B, but the payment order accepted by
Bank B was not a Fedwire transfer. Before the funds were
withdrawn by Beneficiary, Bank B suspended payments. The
sender of the payment order to Bank B paid the amount of the
order to Bank B. In this case the payment by Originator did not
comply with Beneficiary's contract, but the noncompliance did not
result in a loss to Beneficiary as required by subsection (b) (iv). A
Fedwire transfer avoids the risk of insolvency of the sender of the
payment order to Bank B, but it does not affect the risk that Bank
B will suspend payments before withdrawal of the funds by
Beneficiary. Thus, the unless clause of subsection (b) is not
applicable and the obligation owed to Beneficiary is discharged.
5. Charges of receiving banks in a funds transfer normally are
nominal in relationship to the amount being paid by the originator
to the beneficiary. Wire transfers are normally agreed to in advance
and the parties may agree concerning how these charges are to be
divided between the parties. Subsection (c) states a rule that applies
in the absence of agreement. In some funds transfers charges of
banks that execute payment orders are collected by deducting the
charges from the amount of the payment order issued by the bank,
i.e. the bank issues a payment order that is slightly less than the
amount of the payment order that is being executed. The process is
described in Comment 3 to Section 4A-302. The result in such a
case is that the payment order accepted by the beneficiary's bank
will be slightly less than the amount of the originator's order.
Subsection (c) recognizes the principle that a beneficiary is entitled
to full payment of a debt paid by wire transfer as a condition to
discharge. On the other hand, Subsection (c) prevents a beneficiary
from denying the originator the benefit of the payment by asserting
that discharge did not occur because deduction of bank charges
resulted in less than full payment. The typical case is one in which
the payment is made to exercise a valuable right such as an option
which is unfavorable to the beneficiary. Subsection (c) allows
discharge notwithstanding the deduction unless the originator fails
to reimburse the beneficiary for the deducted charges after demand
by the beneficiary.
PART 5
MISCELLANEOUS PROVISIONS
Section 36-4A-501. Variation by agreement and effect of
funds-transfer system rule.
(a) Except as otherwise provided in this chapter, the rights
and obligations of a party to a funds transfer may be varied by
agreement of the affected party.
(b) `Funds-transfer system rule' means a rule of an association
of banks (i) governing transmission of payment orders by means of
a funds-transfer system of the association or rights and obligations
with respect to those orders, or (ii) to the extent the rule governs
rights and obligations between banks that are parties to a funds
transfer in which a Federal Reserve Bank, acting as an intermediary
bank, sends a payment order to the beneficiary's bank. Except as
otherwise provided in this chapter, a funds-transfer system rule
governing rights and obligations between participating banks using
the system may be effective even if the rule conflicts with this
chapter and indirectly affects another party to the funds transfer
who does not consent to the rule. A funds-transfer system rule may
also govern rights and obligations of parties other than participating
banks using the system to the extent stated in Sections
36-4A-404(c), 36-4A-405(d), and 36-4A-507(c).
OFFICIAL COMMENT
1. This section is designed to give some flexibility to Article 4A.
Funds transfer system rules govern rights and obligations between
banks that use the system. They may cover a wide variety of
matters such as form and content of payment orders, security
procedures, cancellation rights and procedures, indemnity rights,
compensation rules for delays in completion of a funds transfer,
time and method of settlement, credit restrictions with respect to
senders of payment orders and risk allocation with respect to
suspension of payments by a participating bank. Funds transfer
system rules can be very effective in supplementing the provisions
of Article 4A and in filling gaps that may be present in Article 4A.
To the extent they do not conflict with Article 4A there is no
problem with respect to their effectiveness. In that case they
merely supplement Article 4A. Section 4A-501 goes further. It
states that unless the contrary is stated, funds transfer system rules
can override provisions of Article 4A. Thus, rights and obligations
of a sender bank and a receiving bank with respect to each other
can be different from that stated in Article 4A to the extent a funds
transfer system rule applies. Since funds transfer system rules are
defined as those governing the relationship between participating
banks, a rule can have a direct effect only on participating banks.
But a rule that affects the conduct of a participating bank may
indirectly affect the rights of nonparticipants such as the originator
or beneficiary of a funds transfer, and such a rule can be effective
even though it may affect nonparticipants without their consent.
For example, a rule might prevent execution of a payment order or
might allow cancellation of a payment order with the result that a
funds transfer is not completed or is delayed. But a rule purporting
to define rights and obligations of nonparticipants in the system
would not be effective to alter Article 4A rights because the rule is
not within the definition of funds transfer system rule. Rights and
obligations arising under Article 4A may also be varied by
agreement of the affected parties, except to the extent Article 4A
otherwise provides. Rights and obligations arising under Article 4A
can also be changed by Federal Reserve regulations and operating
circulars of Federal Reserve Banks. Section 4A-107.
2. Subsection (b)(ii) refers to ACH transfers. Whether an ACH
transfer is made through an automated clearing house of a Federal
Reserve Bank or through an automated clearing house of another
association of banks, the rights and obligations of the originator's
bank and the beneficiary's bank are governed by uniform rules
adopted by various associations of banks in various parts of the
nation. With respect to transfers in which a Federal Reserve Bank
acts as intermediary bank these rules may be incorporated, in whole
or in part, in operating circulars of the Federal Reserve Bank. Even
if not so incorporated these rules can still be binding on the
association banks. If a transfer is made through a Federal Reserve
Bank, the rules are effective under subsection (b)(ii). If the transfer
is not made through a Federal Reserve Bank, the association rules
are effective under subsection (b)(i).
Section 36-4A-502. Creditor process served on receiving bank;
setoff by beneficiary's bank.
(a) As used in this section, `creditor process' means levy,
attachment, garnishment, notice of lien, sequestration, or similar
process issued by or on behalf of a creditor or other claimant with
respect to an account.
(b) This subsection applies to creditor process with respect to
an authorized account of the sender of a payment order if the
creditor process is served on the receiving bank. For the purpose of
determining rights with respect to the creditor process, if the
receiving bank accepts the payment order the balance in the
authorized account is deemed to be reduced by the amount of the
payment order to the extent the bank did not otherwise receive
payment of the order, unless the creditor process is served at a time
and in a manner affording the bank a reasonable opportunity to act
on it before the bank accepts the payment order.
(c) If a beneficiary's bank has received a payment order for
payment to the beneficiary's account in the bank, the following
rules apply:
(1) The bank may credit the beneficiary's account. The
amount credited may be set off against an obligation owed by the
beneficiary to the bank or may be applied to satisfy creditor process
served on the bank with respect to the account.
(2) The bank may credit the beneficiary's account and
allow withdrawal of the amount credited unless creditor process
with respect to the account is served at a time and in a manner
affording the bank a reasonable opportunity to act to prevent
withdrawal.
(3) If creditor process with respect to the beneficiary's
account has been served and the bank has had a reasonable
opportunity to act on it, the bank may not reject the payment order
except for a reason unrelated to the service of process.
(d) Creditor process with respect to a payment by the
originator to the beneficiary pursuant to a funds transfer may be
served only on the beneficiary's bank with respect to the debt owed
by that bank to the beneficiary. Any other bank served with the
creditor process is not obliged to act with respect to the process.
OFFICIAL COMMENT
1. When a receiving bank accepts a payment order, the bank
normally receives payment from the sender by debiting an
authorized account of the sender. In accepting the sender's order
the bank may be relying on a credit balance in the account. If
creditor process is served on the bank with respect to the account
before the bank accepts the order but the bank employee responsible
for the acceptance was not aware of the creditor process at the time
the acceptance occurred, it is unjust to the bank to allow the
creditor process to take the credit balance on which the bank may
have relied. Subsection (b) allows the bank to obtain payment from
the sender's account in this case. Under that provision, the balance
in the sender's account to which the creditor process applies is
deemed to be reduced by the amount of the payment order unless
there was sufficient time for notice of the service of creditor
process to be received by personnel of the bank responsible for the
acceptance.
2. Subsection (c) deals with payment orders issued to the
beneficiary's bank. The bank may credit the beneficiary's account
when the order is received, but under Section 4A-404(a) the bank
incurs no obligation to pay the beneficiary until the order is
accepted pursuant to Section 4A-209(b). Thus, before acceptance,
the credit to the beneficiary's account is provisional. But under
Section 4A-209(b) acceptance occurs if the beneficiary's bank pays
the beneficiary pursuant to Section 4A-405(a). Under that
provision, payment occurs if the credit to the beneficiary's account
is applied to a debt of the beneficiary. Subsection (c)(1) allows the
bank to credit the beneficiary's account with respect to a payment
order and to accept the order by setting off the credit against an
obligation owed to the bank or applying the credit to creditor
process with respect to the account.
Suppose a beneficiary's bank receives a payment order for the
benefit of a customer. Before the bank accepts the order, the bank
learns that creditor process has been served on the bank with
respect to the customer's account. Normally there is no reason for
a beneficiary's bank to reject a payment order, but if the
beneficiary's account is garnished, the bank may be faced with a
difficult choice. If it rejects the order, the garnishing creditor's
potential recovery of funds of the beneficiary is frustrated. It may
be faced with a claim by the creditor that the rejection was a wrong
to the creditor. If the bank accepts the order, the effect is to allow
the creditor to seize funds of its customer, the beneficiary.
Subsection (c)(3) gives the bank no choice in this case. It provides
that it may not favor its customer over the creditor by rejecting the
order. The beneficiary's bank may rightfully reject only if there is
an independent basis for rejection.
3. Subsection (c)(2) is similar to subsection (b). Normally the
beneficiary's bank will release funds to the beneficiary shortly after
acceptance or it will accept by releasing funds. Since the bank is
bound by a garnishment order served before funds are released to
the beneficiary, the bank might suffer a loss if funds were released
without knowledge that a garnishment order had been served.
Subsection (c)(2) protects the bank if it did not have adequate
notice of the garnishment when the funds were released.
4. A creditor may want to reach funds involved in a funds
transfer. The creditor may try to do so by serving process on the
originator's bank, an intermediary bank or the beneficiary's bank.
The purpose of subsection (d) is to guide the creditor and the court
as to the proper method of reaching the funds involved in a funds
transfer. A creditor of the originator can levy on the account of the
originator in the originator's bank before the funds transfer is
initiated, but that levy is subject to the limitations stated in
subsection (b). The creditor of the originator cannot reach any
other funds because no property of the originator is being
transferred. A creditor of the beneficiary cannot levy on property
of the originator and until the funds transfer is completed by
acceptance by the beneficiary's bank of a payment order for the
benefit of the beneficiary, the beneficiary has no property interest in
the funds transfer which the beneficiary's creditor can reach. A
creditor of the beneficiary that wants to reach the funds to be
received by the beneficiary must serve creditor process on the
beneficiary's bank to reach the obligation of the beneficiary's bank
to pay the beneficiary which arises upon acceptance by the
beneficiary's bank under Section 4A-404(a).
5. "Creditor process" is defined in subsection (a) to
cover a variety of devices by which a creditor of the holder of a
bank account or a claimant to a bank account can seize the account.
Procedure and nomenclature varies widely from state to state. The
term used in Section 4A-502 is a generic term.
Section 36-4A-503. Injunction or restraining order with respect
to funds transfer.
For proper cause and in compliance with applicable law, a court
may restrain (i) a person from issuing a payment order to initiate a
funds transfer, (ii) an originator's bank from executing the payment
order of the originator, or (iii) the beneficiary's bank from releasing
funds to the beneficiary or the beneficiary from withdrawing the
funds. A court may not otherwise restrain a person from issuing a
payment order, paying or receiving payment of a payment order, or
otherwise acting with respect to a funds transfer.
OFFICIAL COMMENT
This section is related to Section 4A-502(d) and to Comment 4 to
Section 4A-502. It is designed to prevent interruption of a funds
transfer after it has been set in motion. The initiation of a funds
transfer can be prevented by enjoining the originator or the
originator's bank from issuing a payment order. After the funds
transfer is completed by acceptance of a payment order by the
beneficiary's bank, that bank can be enjoined from releasing funds
to the beneficiary or the beneficiary can be enjoined from
withdrawing the funds. No other injunction is permitted. In
particular, intermediary banks are protected, and injunctions against
the originator and the originator's bank are limited to issuance of a
payment order. Except for the beneficiary's bank, nobody can be
enjoined from paying a payment order, and no receiving bank can
be enjoined from receiving payment from the sender of the order
that it accepted.
Section 36-4A-504. Order in which items and payment orders
may be charged to account; order of withdrawals from account.
(a) If a receiving bank has received more than one payment
order of the sender or one or more payment orders and other items
that are payable from the sender's account, the bank may charge the
sender's account with respect to the various orders and items in any
sequence.
(b) In determining whether a credit to an account has been
withdrawn by the holder of the account or applied to a debt of the
holder of the account, credits first made to the account are first
withdrawn or applied.
OFFICIAL COMMENT
Subsection (a) concerns priority among various obligations that
are to be paid from the same account. A customer may have
written checks on its account with the receiving bank and may have
issued one or more payment orders payable from the same account.
If the account balance is not sufficient to cover all of the checks
and payment orders, some checks may be dishonored and some
payment orders may not be accepted. Although there is no concept
of wrongful dishonor of a payment order in Article 4A in the
absence of an agreement to honor by the receiving bank, some
rights and obligations may depend on the amount in the customer's
account. Section 4A-209(b)(3) and Section 4A-210(b). Whether
dishonor of a check is wrongful also may depend upon the balance
in the customer's account. Under subsection (a), the bank is not
required to consider the competing items and payment orders in any
particular order. Rather it may charge the customer's account for
the various items and orders in any order. Suppose there is $12,000
in the customer's account. If a check for $5,000 is presented for
payment and the bank receives a $10,000 payment order from the
customer, the bank could dishonor the check and accept the
payment order. Dishonor of the check is not wrongful because the
account balance was less than the amount of the check after the
bank charged the account $10,000 on account of the payment order.
Or, the bank could pay the check and not execute the payment
order because the amount of the order is not covered by the balance
in the account.
Section 36-4A-505. Preclusion of objection to debit of
customer's account.
If a receiving bank has received payment from its customer with
respect to a payment order issued in the name of the customer as
sender and accepted by the bank, and the customer received
notification reasonably identifying the order, the customer is
precluded from asserting that the bank is not entitled to retain the
payment unless the customer notifies the bank of the customer's
objection to the payment within one year after the notification was
received by the customer.
OFFICIAL COMMENT
This section is in the nature of a statute of repose for objecting to
debits made to the customer's account. A receiving bank that
executes payment orders of a customer may have received payment
from the customer by debiting the customer's account with respect
to a payment order that the customer was not required to pay. For
example, the payment order may not have been authorized or
verified pursuant to Section 4A-202 or the funds transfer may not
have been completed. In either case the receiving bank is obliged
to refund the payment to the customer and this obligation to refund
payment cannot be varied by agreement. Section 4A-204 and
Section 4A-402. Refund may also be required if the receiving bank
is not entitled to payment from the customer because the bank
erroneously executed a payment order. Section 4A-303. A similar
analysis applies to that case. Section 4A-402(d) and (f) require
refund and the obligation to refund may not be varied by
agreement. Under 4A-505, however, the obligation to refund may
not be asserted by the customer if the customer has not objected to
the debiting of the account within one year after the customer
received notification of the debit.
Section 36-4A-506. Rate of interest.
(a) If, under this chapter, a receiving bank is obliged to pay
interest with respect to a payment order issued to the bank, the
amount payable may be determined (i) by agreement of the sender
and receiving bank, or (ii) by a funds-transfer system rule if the
payment order is transmitted through a funds-transfer system.
(b) If the amount of interest is not determined by an
agreement or rule as stated in subsection (a), the amount is
calculated by multiplying the applicable Federal Funds rate by the
amount on which interest is payable, and then multiplying the
product by the number of days for which interest is payable. The
applicable Federal Funds rate is the average of the Federal Funds
rates published by the Federal Reserve Bank of New York for each
of the days for which interest is payable divided by three hundred
sixty. The Federal Funds rate for any day on which a published
rate is not available is the same as the published rate for the next
preceding day for which there is a published rate. If a receiving
bank that accepted a payment order is required to refund payment
to the sender of the order because the funds transfer was not
completed, but the failure to complete was not due to any fault by
the bank, the interest payable is reduced by a percentage equal to
the reserve requirement on deposits of the receiving bank.
OFFICIAL COMMENT
1. A receiving bank is required to pay interest on the amount of
a payment order received by the bank in a number of situations.
Sometimes the interest is payable to the sender and in other cases it
is payable to either the originator or the beneficiary of the funds
transfer. The relevant provisions are Section 4A-204(a), Section
4A-209(b) (3), Section 4A-210(b), Section 4A-305(a), Section
4A-402(d) and Section 4A-404(b). The rate of interest may be
governed by a funds transfer system rule or by agreement as stated
in subsection (a). If subsection (a) doesn't apply, the rate is
determined under subsection (b). Subsection (b) is illustrated by
the following example. A bank is obliged to pay interest on
$1,000,000 for three days, July 3, July 4, and July 5. The
published Fed Funds rate is .082 for July 3 and .081 for July 5.
There is no published rate for July 4 because that day is not a
banking day. The rate for July 3 applies to July 4. The applicable
Fed Funds rate is .08167 (the average of .082, .082, and .081)
divided by 360 which equals .0002268. The amount of interest
payable is $1,000,000 X .0002268 X 3 = $680.40.
2. In some cases, interest is payable in spite of the fact that there
is no fault by the receiving bank. The last sentence of subsection
(b) applies to those cases. For example, a funds transfer might not
be completed because the beneficiary's bank rejected the payment
order issued to it by the originator's bank or an intermediary bank.
Section 4A-402(c) provides that the originator is not obliged to pay
its payment order and Section 4A-402(d) provides that the
originator's bank must refund any payment received plus interest.
The requirement to pay interest in this case is not based on fault by
the originator's bank. Rather, it is based on restitution. Since the
originator's bank had the use of the originator's money, it is
required to pay the originator for the value of that use. The value
of that use is not determined by multiplying the interest rate by the
refundable amount because the originator's bank is required to
deposit with the Federal Reserve a percentage of the bank's deposits
as a reserve requirement. Since that deposit does not bear interest,
the bank had use of the refundable amount reduced by a percentage
equal to the reserve requirement. If the reserve requirement is
12%, the amount of interest payable by the bank under the formula
stated in subsection (b) is reduced by 12%.
Section 36-4A-507. Choice of law.
(a) The following rules apply unless the affected parties
otherwise agree or subsection (c) applies:
(1) The rights and obligations between the sender of a
payment order and the receiving bank are governed by the law of
the jurisdiction in which the receiving bank is located.
(2) The rights and obligations between the beneficiary's
bank and the beneficiary are governed by the law of the jurisdiction
in which the beneficiary's bank is located.
(3) The issue of when payment is made pursuant to a funds
transfer by the originator to the beneficiary is governed by the law
of the jurisdiction in which the beneficiary's bank is located.
(b) If the parties described in each paragraph of subsection (a)
have made an agreement selecting the law of a particular
jurisdiction to govern rights and obligations between each other, the
law of that jurisdiction governs those rights and obligations,
whether or not the payment order or the funds transfer bears a
reasonable relation to that jurisdiction.
(c) A funds-transfer system rule may select the law of a
particular jurisdiction to govern (i) rights and obligations between
participating banks with respect to payment orders transmitted or
processed through the system, or (ii) the rights and obligations of
some or all parties to a funds transfer any part of which is carried
out by means of the system. A choice of law made pursuant to
clause (i) is binding on participating banks. A choice of law made
pursuant to clause (ii) is binding on the originator, other sender, or
a receiving bank having notice that the funds-transfer system might
be used in the funds transfer and of the choice of law by the system
when the originator, other sender, or receiving bank issued or
accepted a payment order. The beneficiary of a funds transfer is
bound by the choice of law if, when the funds transfer is initiated,
the beneficiary has notice that the funds-transfer system might be
used in the funds transfer and of the choice of law by the system.
The law of a jurisdiction selected pursuant to this subsection may
govern, whether or not that law bears a reasonable relation to the
matter in issue.
(d) In the event of inconsistency between an agreement under
subsection (b) and a choice-of-law rule under subsection (c), the
agreement under subsection (b) prevails.
(e) If a funds transfer is made by use of more than one
funds-transfer system and there is inconsistency between
choice-of-law rules of the systems, the matter in issue is governed
by the law of the selected jurisdiction that has the most significant
relationship to the matter in issue.
OFFICIAL COMMENT
1. Funds transfers are typically interstate or international in
character. If part of a funds transfer is governed by Article 4A and
another part is governed by other law, the rights and obligations of
parties to the funds transfer may be unclear because there is no
clear consensus in various jurisdictions concerning the juridical
nature of the transaction. Unless all of a funds transfer is governed
by a single law it may be very difficult to predict the result if
something goes wrong in the transfer. Section 4A-507 deals with
this problem. Subsection (b) allows parties to a funds transfer to
make a choice-of-law agreement. Subsection (c) allows a funds
transfer system to select the law of a particular jurisdiction to
govern funds transfers carried out by means of the system.
Subsection (a) states residual rules if no choice of law has occurred
under subsection (b) or subsection (c).
2. Subsection (a) deals with three sets of relationships. Rights
and obligations between the sender of a payment order and the
receiving bank are governed by the law of the jurisdiction in which
the receiving bank is located. If the receiving bank is the
beneficiary's bank the rights and obligations of the beneficiary are
also governed by the law of the jurisdiction in which the receiving
bank is located. Suppose Originator, located in Canada, sends a
payment order to Originator's Bank located in a state in which
Article 4A has been enacted. The order is for payment to an
account of Beneficiary in a bank in England. Under subsection
(a)(1), the rights and obligations of Originator and Originator's
Bank toward each other are governed by Article 4A if an action is
brought in a court in the Article 4A state. If an action is brought in
a Canadian court, the conflict of laws issue will be determined by
Canadian law which might or might not apply the law of the state
in which Originator's Bank is located. If that law is applied, the
execution of Originator's order will be governed by Article 4A, but
with respect to the payment order of Originator's Bank to the
English bank, Article 4A may or may not be applied with respect to
the rights and obligations between the two banks. The result may
depend upon whether action is brought in a court in the state in
which Originator's Bank is located or in an English court. Article
4A is binding only on a court in a state that enacts it. It can have
extraterritorial effect only to the extent courts of another jurisdiction
are willing to apply it. Subsection (c) also bears on the issues
discussed in this Comment.
Under Section 4A-406 payment by the originator to the
beneficiary of the funds transfer occurs when the beneficiary's bank
accepts a payment order for the benefit of the beneficiary. A
jurisdiction in which Article 4A is not in effect may follow a
different rule or it may not have a clear rule. Under Section
4A-507(a)(3) the issue is governed by the law of the jurisdiction in
which the beneficiary's bank is located. Since the payment to the
beneficiary is made through the beneficiary's bank it is reasonable
that the issue of when payment occurs be governed by the law of
the jurisdiction in which the bank is located. Since it is difficult in
many cases to determine where a beneficiary is located, the location
of the beneficiary's bank provides a more certain rule.
3. Subsection (b) deals with choice-of-law agreements and it
gives maximum freedom of choice. Since the law of funds
transfers is not highly developed in the case law there may be a
strong incentive to choose the law of a jurisdiction in which Article
4A is in effect because it provides a greater degree of certainly with
respect to the rights of various parties. With respect to commercial
transactions, it is often said that "[u]niformity and
predictability based upon commercial convenience are the prime
considerations in making the choice of governing law . . . ."
R. Leflar, American Conflicts Law, Section 185 (1977). Subsection
(b) is derived in part from recently enacted choice-of-law rules in
the States of New York and California. N.Y. Gen. Obligations Law
5-1401 (McKinney's 1989 Supp.) and California Civil Code
Section 1646.5. This broad endorsement of freedom of contract is
an enhancement of the approach taken by Restatement (Second) of
Conflict of Laws Section 187(b) (1971). The Restatement
recognizes the basic right of freedom of contract, but the freedom
granted the parties may be more limited than the freedom granted
here. Under the formulation of the Restatement, if there is no
substantial relationship to the jurisdiction whose law is selected and
there is no "other" reasonable basis for the parties'
choice, then the selection of the parties need not be honored by a
court. Further, if the choice is violative of a fundamental policy of
a state which has a materially greater interest than the chosen state,
the selection could be disregarded by a court. Those limitations are
not found in subsection (b).
4. Subsection (c) may be the most important provision in regard
to creating uniformity of law in funds transfers. Most rights stated
in Article 4A regard parties who are in privity of contract such as
originator and beneficiary, sender and receiving bank, and
beneficiary's bank and beneficiary. Since they are in privity they
can make a choice of law by agreement. But that is not always the
case. For example, an intermediary bank that improperly executes a
payment order is not in privity with either the originator or the
beneficiary. The ability of a funds transfer system to make a choice
of law by rule is a convenient way of dispensing with individual
agreements and to cover cases in which agreements are not feasible.
It is probable that funds transfer systems will adopt a governing law
to increase the certainty of commercial transactions that are effected
over such systems. A system rule might adopt the law of an Article
4A state to govern transfers on the system in order to provide a
consistent, unitary, law governing all transfers made on the system.
To the extent such system rules develop, individual choice-of-law
agreements become unnecessary.
Subsection (c) has broad application. A system choice of law
applies not only to rights and obligations between banks that use the
system, but may also apply to other parties to the funds transfer so
long as some part of the transfer was carried out over the system.
The originator and any other sender or receiving bank in the funds
transfer is bound if at the time it issues or accepts a payment order
it had notice that the funds transfer involved use of the system and
that the system chose the law of a particular jurisdiction. Under
Section 4A-107, the Federal Reserve by regulation could make a
similar choice of law to govern funds transfers carried out by use of
Federal Reserve Banks. Subsection (d) is a limitation on subsection
(c). If parties have made a choice-of-law agreement that conflicts
with a choice of law made under subsection (c), the agreement
prevails.
5. Subsection (e) addresses the case in which a funds transfer
involves more than one funds transfer system and the systems adopt
conflicting choice-of-law rules. The rule that has the most
significant relationship to the matter at issue prevails. For example,
each system should be able to make a choice of law governing
payment orders transmitted over that system without regard to a
choice of law made by another system."
SECTION 303. Section 36-1-105(2) is amended to read:
"(2) Where one of the following provisions of this title
specifies the applicable law, that provision governs and a contrary
agreement is effective only to the extent permitted by the law
(including the conflict of laws rules) so specified:
Rights of seller's creditors against
sold goods. Section 36-2-402.
Applicability of the Chapter on
Bank Deposits and Collections. Section 36-4-102.
Bulk transfers subject to the
Chapter on Bulk Transfers. Section 36-6-102.
Applicability of the Chapter on
Investment Securities. Section 36-8-106.
Perfection provisions of the
Chapter on Secured Transactions. Section 36-9-103.
Governing law in the Chapter on
Funds Transfers. Section 36-4A-507."
SECTION 304. In order to complete the assignment of
responsibilities to and establish the physical location of certain
programs with the appropriate agencies and departments and to
finalize the division of personnel and resources required by Act 181
of 1993, the council established pursuant to Section 23-6-500 of the
1976 Code as amended is authorized and directed to issue a report
and plan for the final division of programs, resources, and
personnel between the Department of Public Safety, the Department
of Revenue, and the Department of Transportation. The report and
plan must be completed not later than sixty days after the effective
date of this act and reported to the South Carolina Budget and
Control Board. The Budget and Control Board shall act in a
ministerial capacity and shall effectuate the necessary transfer of
personnel and resources in strict accordance with the plan within
forty-five days of receiving the report and plan from the council.
SECTION 305. This act takes effect upon approval by the
Governor except as follows:
(1) Sections 1-3-240(C)(2), 11-9-825, 12-4-40, 12-4-50,
12-4-60, 12-4-70, 12-4-760, 12-37-2680, and 12-43-300(A) take
effect February 1, 1995.
(2) Sections 38-3-110, 38-27-520(d), 38-43-106(C), 38-73-1380,
38-77-580, 38-79-270, 38-81-270, 42-5-60, 43-7-410(B) and (C),
43-7-420, 43-7-430, 43-7-440, 43-21-10, 43-21-130, 43-21-150,
44-6-5(4), 44-6-140(A)(2), 44-6-146(A), 44-6-170(A)(13) and (14),
44-6-520, 44-6-540, 44-6-720(B)(4)(b)(iv) and (5), 44-6-730,
44-7-90, 44-38-380(A)(1)(i), and SECTION 288 take effect July 1,
1995.
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