S*921 Session 111 (1995-1996)
S*0921(Rat #0445, Act #0411 of 1996) General Bill, By Bryan, Elliott, Gregory,
Leatherman, Reese, Washington and Wilson
A Bill to amend Section 1-23-10, Code of Laws of South Carolina, 1976,
relating to definitions in the Administrative Procedures Act, so as to revise
the definition of a "regulation"; to amend Section 1-23-110, as amended,
relating to procedures for publishing notice of proposed regulations and
content of such notices, so as to require publishing the text of the
regulation and a justification for regulations not required for compliance
with federal laws and to clarify the basis for the statement of the need and
reasonableness of the regulation; to amend Section 1-23-111, relating to the
process for agency promulgation of regulations, so as to clarify the basis for
the statement of the need and reasonableness of the regulation and to revise
the options an agency may elect when the official presiding at the public
hearing finds that the need for or reasonableness of the regulation has not
been established; to amend Section 1-23-115, as amended, relating to
assessment reports on regulations, so as to clarify when an assessment report
may be requested, to provide that the one-hundred-twenty day review period is
tolled when a report is requested after the regulation has been submitted for
General Assembly review and to clarify what factors must be analyzed in
determining the need and reasonableness of a regulation; to amend Section
1-23-120, as amended, relating to General Assembly review of regulations, so
as to clarify under what conditions an agency may withdraw a regulation from
General Assembly review and to require each agency to review its regulations
every five years; to amend Section 1-23-125, relating to approval,
disapproval, and modification of regulations, so as to further clarify under
what conditions an agency may withdraw a regulation from General Assembly
review.-amended title
09/26/95 Senate Prefiled
09/26/95 Senate Referred to Committee on Judiciary
01/09/96 Senate Introduced and read first time SJ-62
01/09/96 Senate Referred to Committee on Judiciary SJ-62
03/20/96 Senate Committee report: Favorable with amendment
Judiciary SJ-12
03/21/96 Senate Amended SJ-26
03/21/96 Senate Read second time SJ-26
03/21/96 Senate Ordered to third reading with notice of
amendments SJ-26
03/26/96 Senate Read third time and sent to House SJ-35
03/27/96 House Introduced and read first time HJ-27
03/27/96 House Referred to Committee on Judiciary HJ-27
05/15/96 House Committee report: Favorable with amendment
Judiciary HJ-3
05/21/96 House Debate adjourned until Wednesday, May 22, 1996 HJ-67
05/21/96 House Reconsidered HJ-83
05/21/96 House Amended HJ-83
05/21/96 House Debate adjourned until Wednesday, May 22, 1996 HJ-90
05/21/96 House Reconsidered HJ-124
05/21/96 House Amended HJ-125
05/21/96 House Read second time HJ-125
05/22/96 House Read third time and returned to Senate with
amendments HJ-14
05/23/96 Senate Concurred in House amendment and enrolled SJ-20
05/30/96 Ratified R 445
06/04/96 Signed By Governor
06/04/96 See act for exception to or explanation of
effective date
06/27/96 Copies available
06/27/96 Act No. 411
(A411, R445, S921)
AN ACT TO AMEND SECTION 1-23-10, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS IN THE
ADMINISTRATIVE PROCEDURES ACT, SO AS TO REVISE THE
DEFINITION OF A "REGULATION"; TO AMEND
SECTION 1-23-110, AS AMENDED, RELATING TO PROCEDURES
FOR PUBLISHING NOTICE OF PROPOSED REGULATIONS AND
CONTENT OF SUCH NOTICES, SO AS TO REQUIRE PUBLISHING
THE TEXT OF THE REGULATION AND A JUSTIFICATION FOR
REGULATIONS NOT REQUIRED FOR COMPLIANCE WITH
FEDERAL LAWS AND TO CLARIFY THE BASIS FOR THE
STATEMENT OF THE NEED AND REASONABLENESS OF THE
REGULATION; TO AMEND SECTION 1-23-111, RELATING TO
THE PROCESS FOR AGENCY PROMULGATION OF
REGULATIONS, SO AS TO CLARIFY THE BASIS FOR THE
STATEMENT OF THE NEED AND REASONABLENESS OF THE
REGULATION AND TO REVISE THE OPTIONS AN AGENCY MAY
ELECT WHEN THE OFFICIAL PRESIDING AT THE PUBLIC
HEARING FINDS THAT THE NEED FOR OR REASONABLENESS
OF THE REGULATION HAS NOT BEEN ESTABLISHED; TO
AMEND SECTION 1-23-115, AS AMENDED, RELATING TO
ASSESSMENT REPORTS ON REGULATIONS, SO AS TO CLARIFY
WHEN AN ASSESSMENT REPORT MAY BE REQUESTED, TO
PROVIDE THAT THE ONE HUNDRED-TWENTY-DAY REVIEW
PERIOD IS TOLLED WHEN A REPORT IS REQUESTED AFTER
THE REGULATION HAS BEEN SUBMITTED FOR GENERAL
ASSEMBLY REVIEW AND TO CLARIFY WHAT FACTORS MUST
BE ANALYZED IN DETERMINING THE NEED AND
REASONABLENESS OF A REGULATION; TO AMEND SECTION
1-23-120, AS AMENDED, RELATING TO GENERAL ASSEMBLY
REVIEW OF REGULATIONS, SO AS TO CLARIFY UNDER WHAT
CONDITIONS AN AGENCY MAY WITHDRAW A REGULATION
FROM GENERAL ASSEMBLY REVIEW AND TO REQUIRE EACH
AGENCY TO REVIEW ITS REGULATIONS EVERY FIVE YEARS;
TO AMEND SECTION 1-23-125, RELATING TO APPROVAL,
DISAPPROVAL, AND MODIFICATION OF REGULATIONS, SO AS
TO FURTHER CLARIFY UNDER WHAT CONDITIONS AN
AGENCY MAY WITHDRAW A REGULATION FROM GENERAL
ASSEMBLY REVIEW.
Be it enacted by the General Assembly of the State of South
Carolina:
Definition
SECTION 1. 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. Policy or guidance issued by an
agency other than in a regulation does not have the force or effect of
law. The term `regulation' includes general licensing criteria and
conditions and the amendment or repeal of a prior regulation, but does
not include descriptions of agency procedures applicable only to agency
personnel; opinions of the Attorney General; decisions or orders in rate
making, price fixing, or licensing matters; awards of money to
individuals; policy statements or rules of local school boards; regulations
of the National Guard; decisions, orders, or rules of the Board of
Probation, Parole, and Pardon Services; orders of the supervisory or
administrative agency of a penal, mental, or medical institution, in
respect to the institutional supervision, custody, control, care, or
treatment of inmates, prisoners, or patients; decisions of the governing
board of a university, college, technical college, school, or other
educational institution with regard 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
agencies; and other agency actions relating only to specified
individuals."
Notice content
SECTION 2. Section 1-23-110(A)(3)(c) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(c) a narrative preamble and the text of the proposed
regulation. The preamble shall include a section-by-section discussion of
the proposed regulation and a justification for any provision not required
to maintain compliance with federal law including, but not limited to,
grant programs;"
Basis for statement of need and reasonableness
SECTION 3. Section 1-23-110(A)(3)(g) of the 1976 Code, as last
amended by Act 181 of 1993, is further amended to read:
"(g) statement of the need and reasonableness of the regulation
as determined by the agency based on an analysis of the factors listed in
Section 1-23-115(C)(1) through (11). At no time is an agency required
to include items (4) through (8) in the reasonableness and need
determination. However, comments related to items (4) through (8)
received by the agency during the public comment periods must be made
part of the official record of the proposed regulations."
Promulgation process, public hearing, presiding official
SECTION 4. Section 1-23-111 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 must 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 must be conducted by the board or
commission, with the chairman presiding. The administrative law judge
or chairman, 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 as
determined by the agency based on an analysis of the factors listed in
Section 1-23-115(C)(1) through (11), except items (4) through (8), 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.
(B) After allowing all written material to be submitted and recorded in
the record of the public hearing no later than five working days after the
hearing ends, unless the presiding official orders an extension for not
more than twenty days, the presiding official shall issue a written report
which shall include findings as to the need and reasonableness of the
proposed regulation based on an analysis of the factors listed in Section
1-23-115(C)(1) through (11), except items (4) through (8), and other
factors as the presiding official identifies and may include suggested
modifications to the proposed regulations in the case of a finding of lack
of need or reasonableness.
(C) If the presiding official determines that the need for or
reasonableness of the proposed regulation has not been established, the
agency shall elect to:
(a) modify the proposed regulation by including the suggested
modifications of the presiding official;
(b) not modify the proposed regulation in accordance with the
presiding official's suggested modifications in which case the agency
shall submit to the General Assembly, along with the promulgated
regulation submitted for legislative review, a copy of the presiding
official's written report; or
(c) terminate the promulgation process for the proposed regulation
by publication of a notice in the State Register and the termination is
effective upon publication of the notice."
Request for assessment report
SECTION 5. Section 1-23-115(A) of the 1976 Code, as last amended by
Act 181 of 1993, is further amended to read:
"(A) Upon written request by two members of the General
Assembly, made before submission of a promulgated regulation to the
General Assembly for legislative review, a regulation that has a
substantial economic impact must have an assessment report prepared
pursuant to this section and in accordance with the procedures contained
in this article. In addition to any other method as may be provided by
the General Assembly, the legislative committee to which the
promulgated regulation has been referred, by majority vote, may send a
written notification to the promulgating agency informing the agency that
the committee cannot approve the promulgated regulation unless an
assessment report is prepared and provided to the committee. The
written notification tolls the running of the one hundred-twenty-day
legislative review period, and the period does not begin to run again until
an assessment report prepared in accordance with this article is submitted
to the committee. Upon receipt of the assessment report, additional days
must be added to the days remaining in the one hundred-twenty-day
review period, if less than twenty days, to equal twenty days. A copy of
the assessment report must be provided to each member of the
committee."
Content of assessment report
SECTION 6. Section 1-23-115(C) of the 1976 Code, as last amended by
Act 181 of 1993, is further amended to read:
"(C) The preliminary and final assessment reports required by
this section must disclose the effects of the proposed regulation on the
public health and environmental welfare of the community and State and
the effects of the economic activities arising out of the proposed
regulation. Both the preliminary and final reports required by this
section may include:
(1) a description of the regulation, the purpose of the regulation, the
legal authority for the regulation, and the plan for implementing the
regulation;
(2) a determination of the need for and reasonableness of the
regulation as determined by the agency based on an analysis of the
factors listed in this subsection and the expected benefit of the
regulation;
(3) a determination of the costs and benefits associated with the
regulation and an explanation of why the regulation is considered to be
the most cost-effective, efficient, and feasible means for allocating public
and private resources and for achieving the stated purpose;
(4) the effect of the regulation on competition;
(5) the effect of the regulation on the cost of living and doing
business in the geographical area in which the regulation would be
implemented;
(6) the effect of the regulation on employment in the geographical
area in which the regulation would be implemented;
(7) the source of revenue to be used for implementing and enforcing
the regulation;
(8) a conclusion on the short-term and long-term economic impact
upon all persons substantially affected by the regulation, including an
analysis containing a description of which persons will bear the costs of
the regulation and which persons will benefit directly and indirectly from
the regulation;
(9) the uncertainties associated with the estimation of particular
benefits and burdens and the difficulties involved in the comparison of
qualitatively and quantitatively dissimilar benefits and burdens. A
determination of the need for the regulation shall consider qualitative and
quantitative benefits and burdens;
(10) the effect of the regulation on the environment and public
health;
(11) the detrimental effect on the environment and public health if
the regulation is not implemented. An assessment report must not
consider benefits or burdens on out-of-state political bodies or businesses.
The assessment of benefits and burdens which cannot be precisely
quantified may be expressed in qualitative terms. This subsection must
not be interpreted to require numerically precise cost-benefit analysis. At
no time is an agency required to include items (4) through (8) in a
preliminary assessment report or statement of the need and
reasonableness; however, these items may be included in the final
assessment report prepared by the division."
Withdrawal of regulations
SECTION 7. Section 1-23-120(A) of the 1976 Code, as last amended by
Act 507 of 1992, is further amended to read:
"(A) All regulations except those specifically exempted under
this section must be submitted to the General Assembly for review in
accordance with this article, but no regulation may be submitted to the
General Assembly more than one year after publication of the drafting
notice initiating the regulation pursuant to Section 1-23-110. A
regulation submitted to the General Assembly for review may not be
withdrawn or modified by the agency for any reason except upon written
notification by a committee that the committee by majority vote cannot
approve the regulation in the form submitted, as provided for in Section
1-23-125."
Agency review of regulations
SECTION 8. Section 1-23-120 of the 1976 Code, as last amended by
Act 181 of 1993, is further amended by adding at the end:
"(I) Each state agency which promulgates regulations or to
which the responsibility for administering regulations has been
transferred shall by July 1, 1997, and every five years thereafter, conduct
a formal review of all regulations which it has promulgated or for which
it has been transferred the responsibility of administering, except that
those regulations described in subsection (G) are not subject to this
review. Upon completion of the review, the agency shall submit to the
Code Commissioner a report which identifies those regulations:
(1) for which the agency intends to begin the process of repeal in
accordance with this article;
(2) for which the agency intends to begin the process of amendment
in accordance with this article; and
(3) which do not require repeal or amendment.
Nothing in this subsection may be construed to prevent an agency
from repealing or amending a regulation in accordance with this article
before or after it is so identified in the report to the Code
Commissioner."
Withdrawal of regulations
SECTION 9. Section 1-23-125 of the 1976 Code, as last amended by
Act 605 of 1988, is further amended to read:
"Section 1-23-125. (A) The legislative committee to which a
regulation is submitted is not authorized to amend a particular regulation
and then introduce a joint resolution approving the regulation as
amended; however, this provision does not prevent the introduction of a
resolution disapproving one or more of a group of regulations submitted
to the committee and approving others submitted at the same time or
deleting a clearly separable portion of a single regulation and approving
the balance of the regulation in the committee resolution. An agency
may not withdraw from or modify a regulation under legislative review
unless the agency receives written notification, as provided for in this
section, from a committee that the committee by majority vote cannot
approve the regulation in the form submitted.
(B) If a majority of a committee determines that it cannot approve a
regulation in the form submitted, it shall notify the promulgating agency
in writing along with its recommendations as to changes that would be
necessary to obtain committee approval. The agency may:
(1) withdraw the regulation from the General Assembly and
resubmit it with the recommended changes to the Speaker and the
Lieutenant Governor, but any regulation not resubmitted within thirty
days is considered permanently withdrawn;
(2) withdraw the regulation permanently;
(3) take no action and abide by whatever action is taken or not taken
by the General Assembly on the regulation concerned.
(C) The notification tolls the one hundred-twenty-day period for
automatic approval, and when an agency withdraws regulations from the
General Assembly prior to the time a committee resolution to approve or
disapprove the regulation has been introduced, the remainder of the
period begins to run only on the date the regulations are resubmitted to
the General Assembly. Upon resubmission of the regulations, additional
days must be added to the days remaining in the review period for
automatic approval, if less than twenty days, to equal twenty days, and a
copy of the amended regulation must be given to each member of the
committee. If an agency decides to take no action pursuant to item (3), it
shall notify the committee in writing, and the remainder of the period
begins to run only upon this notification.
(D) This section, as it applies to approval, disapproval, or
modification of regulations, does not apply to joint resolutions introduced
by other than the committees to which regulations are initially referred by
the Lieutenant Governor or the Speaker of the House of
Representatives.
(E) If a regulation, when finally promulgated, includes a substantive
change in the content of the regulation as proposed and published in the
State Register, and the substantive change was not raised, considered, or
discussed by public comment required in Section 1-23-110, the regulation
must 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 this article."
Time effective
SECTION 10. Section 8 of this act takes effect July 1, 1997, and applies
to regulations which became effective before this date and on and after
this date. All other sections of this act take effect upon approval by the
Governor and apply to any regulation which has not been submitted to
the General Assembly for the prescribed legislative review as provided
for in Title 1, Chapter 23, Article 1 of the 1976 Code.
Approved the 4th day of June, 1996. |