S*1114 Session 103 (1979-1980)
S*1114(Rat #0516, Act #0442 of 1980) General Bill, By Senate Judiciary
A Bill to amend Act 176 of 1977, as amended, The Administrative Procedures
Act, so as to more specifically define the responsibilities of state agencies
to give notice of proposed promulgation of regulations and receive public
comment thereon, consolidate provisions of the act relating to emergency
regulations, further provide for changes in proposed regulations after public
comment, to authorize the public request the promulgation, repeal and
amendment of regulations and to obtain declaratory rulings on regulations, and
delete certain redundant provisions from the portion of the act relating to
contested cases.
05/14/80 Senate Introduced, read first time, placed on calendar
without reference SJ-9
05/15/80 Senate Read second time SJ-8
05/16/80 Senate Read third time and sent to House SJ-2
05/20/80 House Introduced, read first time, placed on calendar
without reference HJ-2931
05/22/80 House Read second time HJ-3000
05/23/80 House Read third time and enrolled HJ-3018
05/29/80 Senate Ratified R 516 SJ-78
06/04/80 Signed By Governor
06/04/80 Effective date 06/04/80
06/04/80 Act No. 442
06/17/80 Copies available
(A442, R516, S1114)
AN ACT TO AMEND ACT 176 OF 1977, AS AMENDED, THE ADMINISTRATIVE PROCEDURES
ACT, SO AS TO MORE SPECIFICALLY DEFINE THE RESPONSIBILITIES OF STATE AGENCIES
TO GIVE NOTICE OF PROPOSED PROMULGATION OF REGULATIONS AND RECEIVE PUBLIC
COMMENT THEREON, CONSOLIDATE PROVISIONS OF THE ACT RELATING TO EMERGENCY
REGULATIONS, FURTHER PROVIDE FOR CHANGES IN PROPOSED REGULATIONS AFTER PUBLIC
COMMENT, TO AUTHORIZE THE PUBLIC TO REQUEST THE PROMULGATION, REPEAL AND
AMENDMENT OF REGULATIONS AND TO OBTAIN DECLARATORY RULINGS ON REGULATIONS, AND
DELETE CERTAIN REDUNDANT PROVISIONS FROM THE PORTION OF THE ACT RELATING TO
CONTESTED CASES.
Be it enacted by the General Assembly of the State of South Carolina:
Notice of rules to be published
Section 1. Section 11 of Article I of Act 176 of 1977 is amended to read:
"Section 11. (a) This section applies only to the promulgation
of regulations as defined in item (4), Section 1, of this article and is
subject to the additional requirements of Section 12 of this article.
(b) Prior to the promulgation, amendment, or repeal of any regulation, an
agency shall:
(1) Give at least thirty days' notice of intended action by publication of
a notice in the State Register. The notice shall include either the text or a
synopsis of the proposed regulation, the statutory authority for its
promulgation, and the time when, the place where, and the manner in which
interested persons may present their views thereon. The notice shall be mailed
to all persons who have made timely requests of the agency for advance notice
of proposed promulgation of regulations.
(2) Afford all interested persons reasonable opportunity to submit data,
views or arguments, orally or in writing. Opportunity for oral hearing must be
granted if requested by twenty-five persons, by a governmental subdivision or
agency, or by an association having not less than twenty-five members. The
agency shall fully consider all written and oral submissions respecting the
proposed regulation.
(c) A proceeding to contest any regulation on the ground of non-compliance
with the procedural requirements of this section must be commenced within one
year from the effective date of the regulation."
Approval of General Assembly
Section 2. Section 12 of Article I of Act 176 of 1977, last amended by Act
188 of 1979, is further amended to read:
"Section 12. The General Assembly shall have a period of ninety days to
review any regulations promulgated by any agency. To initiate the process of
review, the agency shall file with the President of the Senate and the Speaker
of the House of Representatives a copy of any regulations promulgated along
with a request for review. Upon receipt of the request, the President and
Speaker reviewing such request shall submit it for consideration to the
standing committees of the Senate and House which are most concerned with the
function of the promulgating agency. The ninety-day period of review shall
begin on the date the regulation is filed with the President and Speaker. Sine
die adjournment of the general Assembly shall toll the running of the period
of review and the remainder of such period shall begin to run upon the next
convening of the General Assembly excluding special sessions called by the
Governor.
A regulation shall not be effective until ninety days after it has been
submitted unless a joint resolution approving the regulation is adopted by the
General Assembly prior to the expiration of the ninety-day period; provided,
however, if the General Assembly by a joint resolution disapproves a
regulation within the ninety-day period it shall not take effect.
Any member may introduce a joint resolution approving or disapproving a
regulation or group of regulations thirty days following the date the
regulations concerned are submitted to a standing committee for review and no
committee resolution approving or disapproving such regulations has been
introduced and the regulations concerned have not been withdrawn by the
promulgating agency pursuant to Section 12A.
General Assembly review shall not be required for regulations promulgated to
maintain compliance with federal law including but not limited to grant
programs. All regulations submitted to the General Assembly for approval shall
have attached thereto a brief synopsis or analysis of the regulations
submitted explaining the content therein and any changes in existing
regulations resulting therefrom. Such synopsis or analysis shall include
citations of federal law, if any, mandating changes in such regulations. The
ninety day period of review provided for in this section shall not begin to
run until the synopsis or analysis is attached to regulations submitted."
Powers of committee
Section 3. Section 12A of Article I of Act 176 of 1977 added by Act 188 of
1979 is amended to read:
"Section 12A. The legislative committee to which a regulation is
submitted is not authorized to amend a particular regulation and then
introduce a joint resolution approving the regulation as amended; however,
this provision shall not prevent the introduction of a resolution disapproving
one or more of a group of regulations submitted to such committee and
approving others submitted at the same time or deleting a clearly separable
portion of a single regulation and approving the balance thereof in the
committee resolution.
If a committee determines that it cannot approve a regulation in the form
submitted it may notify the promulgating agency along with its recommendations
as to changes that would be necessary to obtain committee approval. The agency
may thereupon:
(a) Withdraw the regulation from the committees and resubmit it with the
recommended changes to the Speaker and the Lieutenant Governor;
(b) Withdraw the regulation permanently;
(c) Take no action and abide by whatever action is taken or not taken by the
General Assembly on the regulation concerned.
If the agency temporarily withdraws the regulation pursuant to (a) above and
resubmits it at a later date for legislative review, the General Assembly
shall have an additional period in which to review and act on the regulation
equal to the period between the time of its withdrawal and resubmission
regardless of the date of its original submission to the Speaker and the
Lieutenant Governor.
If after notification by a standing committee that it cannot approve a
regulation an agency takes no action pursuant to (c) above, the ninety day
period in which a regulation becomes automatically effective without General
Assembly approval shall be extended from ninety to one hundred twenty days
while the General Assembly is in session.
The provisions of this section, as they apply to approval, disapproval, or
modification of regulations, shall not apply to joint resolutions introduced
by other than the committees to which regulations are initially referred by
the Lieutenant Governor or the Speaker of the House of Representatives.
When any regulation, when finally promulgated, includes a substantive change
in the content of the regulation as proposed and published in the State
Register, and such substantive change was not raised, considered or discussed
by public comment required in Section 11, the regulation shall be refiled by
the agency with the Legislative Council and published as revised in the State
Register and processed as a new regulation in accordance with the provisions
of this article."
Emergency regulations
Section 4. Section 13 of Article I of Act 176 of 1977 is amended to read:
"Section 13. (a) If any agency finds that an imminent peril to public
health, safety or welfare requires immediate promulgation of an emergency
regulation prior to compliance with the procedures prescribed in this article,
the agency may file the regulation with the Legislative Council along with a
statement of the situation requiring immediate promulgation and such
regulation shall become effective as of the time of filing; provided, however,
that if emergency regulations promulgated pursuant to the provisions of this
section are promulgated while the General Assembly is in session, such
emergency regulations shall remain in effect for ninety days only and shall
not be renewed under the provisions of this section; provided, further,
however, that if emergency regulations promulgated in accordance with the
provisions of this section are promulgated during a time when the General
Assembly is not in session such emergency regulations may be renewable for an
additional ninety days if the General Assembly is not in regular session at
the expiration of the ninety day period.
(b) Emergency regulations and the agency statement as to the necessity of
immediate promulgation shall be published in the next issue of the State
Register following the date of filing.
(c) Any emergency regulations promulgated pursuant to this section may be
permanently promulgated by complying with the requirements of this
article."
Appeals
Section 5. Section 15 of Article I of Act 176 of 1977 is amended to read:
"Section 15. (a) Any person may petition an agency in writing for a
declaratory ruling as to the applicability of any regulation of the agency or
the authority of the agency to promulgate a particular regulation. The agency
shall, within thirty days after receipt of such petition, issue a declaratory
ruling thereon.
(b) After compliance with the provisions of paragraph (a) of this section, any
person affected by the provisions of any regulation of an agency may petition
the Circuit Court for a declaratory judgment and/or injunctive relief if it is
alleged that the regulation or, its threatened application interferes with or
impairs, or threatens to interfere with or impair, the legal rights or
privileges of the plaintiff or that the regulation exceeds the regulatory
authority of the agency. The agency shall be made a party to the
action."
Persons may petition agency
Section 6. Article 1 of Act 176 of 1977, as last amended by Act 188 of 1979,
is further amended by adding:
"Section 12B. An interested person may petition an agency in writing
requesting the promulgation, amendment or repeal of a regulation. Within
thirty days after submission of such petition, the agency shall either deny
the petition in writing (stating its reasons for the denial) or shall initiate
the action in such petition."
Definitions deleted
Section 7. Section 1 of Article II of Act 176 of 1977 is amended by striking
item (6) which reads:
"(6) 'Rule' means each final agency statement, decision, or order in a
contested case. The term includes the amendment or repeal of a prior rule, but
does not include statements concerning only the internal management of any
agency and not affecting private rights or procedures available to the
public."
Sections repealed
Section 8. Article II of Act 176 of 1977, as amended by Act 188 of 1979, is
further amended by striking Sections 7A, 7B, 7C and 7D in their entirety.
Time effective
Section 9. This act shall take effect upon approval by the Governor. |