S 1435 Session 109 (1991-1992)
S 1435 General Bill, By Moore
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
1-23-15 so as to provide that no condition or requirement of a license or
permit issued by a state agency may be enforced if not promulgated as a
regulation; by adding Section 1-23-115 so as to require an assessment report
on regulations that may have a substantial economic impact on persons and to
provide exemptions and for the contents of the report; to amend Section
1-23-10, relating to definitions under the State Register and Code of
Regulations, so as to revise the definition of "regulation" to include agency
actions which may have a substantial economic impact on persons; to amend
1-23-110, as amended, relating to requirements for promulgating regulations,
so as to revise these requirements to include submitting assessment reports
which also must be made available to the public; to amend Section 1-23-120, as
amended, relating to requirements of General Assembly review of regulations,
so as to provide that a copy of the assessment report must be submitted when a
regulation is submitted for review and to provide that a regulation containing
an assessment report is disapproved if it is not approved by Joint Resolution
within one hundred twenty days of being submitted to the General Assembly; and
to amend Section 1-23-130, relating to emergency regulations, so as to provide
that the agency must obtain a statement from the Governor that an emergency
exists before filing with the Legislative Council.
03/30/92 Senate Introduced and read first time SJ-5
03/30/92 Senate Referred to Committee on Judiciary SJ-5
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 1-23-15 SO AS TO PROVIDE THAT NO
CONDITION OR REQUIREMENT OF A LICENSE OR PERMIT
ISSUED BY A STATE AGENCY MAY BE ENFORCED IF NOT
PROMULGATED AS A REGULATION; BY ADDING SECTION
1-23-115 SO AS TO REQUIRE AN ASSESSMENT REPORT ON
REGULATIONS THAT MAY HAVE A SUBSTANTIAL ECONOMIC
IMPACT ON PERSONS AND TO PROVIDE EXEMPTIONS AND
FOR THE CONTENTS OF THE REPORT; TO AMEND SECTION
1-23-10, RELATING TO DEFINITIONS UNDER THE STATE
REGISTER AND CODE OF REGULATIONS, SO AS TO REVISE
THE DEFINITION OF "REGULATION" TO INCLUDE
AGENCY ACTIONS WHICH MAY HAVE A SUBSTANTIAL
ECONOMIC IMPACT ON PERSONS; TO AMEND SECTION
1-23-110, AS AMENDED, RELATING TO REQUIREMENTS FOR
PROMULGATING REGULATIONS, SO AS TO REVISE THESE
REQUIREMENTS TO INCLUDE SUBMITTING ASSESSMENT
REPORTS WHICH ALSO MUST BE MADE AVAILABLE TO THE
PUBLIC; TO AMEND SECTION 1-23-120, AS AMENDED,
RELATING TO REQUIREMENTS OF GENERAL ASSEMBLY
REVIEW OF REGULATIONS, SO AS TO PROVIDE THAT A COPY
OF THE ASSESSMENT REPORT MUST BE SUBMITTED WHEN A
REGULATION IS SUBMITTED FOR REVIEW AND TO PROVIDE
THAT A REGULATION CONTAINING AN ASSESSMENT REPORT
IS DISAPPROVED IF IT IS NOT APPROVED BY JOINT
RESOLUTION WITHIN ONE HUNDRED TWENTY DAYS OF
BEING SUBMITTED TO THE GENERAL ASSEMBLY; AND TO
AMEND SECTION 1-23-130, RELATING TO EMERGENCY
REGULATIONS, SO AS TO PROVIDE THAT THE AGENCY MUST
OBTAIN A STATEMENT FROM THE GOVERNOR THAT AN
EMERGENCY EXISTS BEFORE FILING WITH THE LEGISLATIVE
COUNCIL.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 1-23-15. No condition or requirement of a permit
or license issued by a state agency may be enforced unless that condition
or requirement is promulgated as a regulation pursuant to this
article."
SECTION 2. The 1976 Code is amended by adding:
"Section 1-23-115.(A) A state agency must submit to the
State Budget and Control Board a preliminary assessment report on
those regulations defined in Section 1-23-10(4)(b). Upon receiving this
report and obtaining additional information available from the
promulgating agency and any other information needed from other
sources, the Budget and Control Board shall prepare and publish a final
assessment report within sixty days of receiving the preliminary report.
The Budget and Control Board shall forward the final assessment report
and a summary of the report to the promulgating agency.
(B) An assessment report must disclose the effects of the proposed
regulation on the economic and social welfare of the community and
State and the effects of the economic activities arising out of the
proposed regulation and must include:
(1) a description of the regulation, the purpose of the
regulation, the legal authority for the regulation, and the plan for
implementing the regulation;
(2) a determination of the need for the regulation and the
expected benefit of the regulation;
(3) a determination that the regulation is the most
cost-effective method for achieving the stated purpose;
(4) a determination of the cost-benefit relation of the
regulation and a comparison of that cost-benefit relation to the
cost-benefit relation resulting from not promulgating a regulation to
achieve the stated purpose;
(5) a determination that the regulation represents the most
efficient allocation of public and private resources to achieve the stated
purpose;
(6) the effect of the regulation on competition;
(7) the effect of the regulation on the cost of living and doing
business in the geographical area in which the regulation would be
implemented;
(8) the effect of the regulation on employment in the
geographical area in which the regulation would be implemented;
(9) the source of revenue to be used for implementing and
enforcing the regulation;
(10) a conclusion on the short-term and long-term economic impact
upon all persons substantially affected by the regulation, including an
analysis containing a description of which persons will bear the costs of
the regulation and which persons will benefit directly and indirectly
from the regulation;
(11) the uncertainties associated with the estimation of particular
benefits and burdens and the difficulties involved in the comparison of
qualitatively and quantitatively dissimilar benefits and burdens.
An assessment report must not consider benefits or burdens on
out-of-state political bodies or businesses. The assessment of benefits
and burdens which cannot be precisely quantified may be expressed in
qualitative terms. This subsection must not be interpreted to require
numerically precise cost-benefit analysis.
(C) If information required to be included in the assessment report
materially changes at any time before or after a regulation is approved
by the General Assembly, the agency must submit the corrected
information to the Budget and Control Board which must forward a
revised assessment report to the Legislative Council for submission to
the committees to which the regulation was referred during General
Assembly review.
(D) An assessment report is not required on regulations:
(1) specifically exempt from General Assembly review by
Section 1-23-120; however, if any portion of a regulation promulgated
to maintain compliance with federal law is more stringent than federal
law, then that portion is not exempt from this section;
(2) emergency regulations filed in accordance with Section
1-23-130; however, before an emergency regulation may be refiled
pursuant to Section 1-23-130, an assessment report must be prepared in
accordance with this section;
(3) nondiscretionary ministerial action by an agency which
complies with applicable statutes and regulations;
(4) an action or activity of an agency which is required by law
to be confidential;
(5) expenditures of money from trust funds which previously
have been designed by the General Assembly for a specific
purpose."
SECTION 3. Section 1-23-10(4) of the 1976 Code is amended to
read:
"(4) `Regulation' means each agency statement:
(a) of general public applicability that implements or
prescribes law or policy or practice requirements of any
the agency;
(b) describing an agency action or activity, which may have
substantial economic impact upon a person. Substantial economic
impact may occur through a series of agency decisions which
individually may not have substantial economic impact but which
cumulatively have substantial economic impact.
The term includes the amendment or repeal of a prior regulation but
does not include descriptions of agency procedures applicable only to
agency personnel; opinions of the Attorney General; decisions or orders
in rate making, price fixing, or licensing matters; awards of
money to individuals; policy statements or rules of local school boards;
regulations of the National Guard; decisions, orders or rules of the
Probation, Parole and Pardon Board of Probation, Parole and
Pardon Services; orders of the a supervisory or
administrative agency of any a penal, mental,
or medical institution, in respect to the institutional supervision, custody,
control, care, or treatment of inmates, prisoners, or
patients therein in the institution; decisions of the
governing board of any a university, college, technical
college, school, or other educational institution with regards to
curriculum, qualifications for admission, dismissal and readmission, fees
and charges for students, conferring degrees and diplomas, employment
tenure and promotion of faculty and disciplinary proceedings; decisions
of the State Human Affairs Commission relating to firms or
individuals; and advisory opinions of any agencies
an agency; and other agency actions relating only to
specified individuals."
SECTION 4. Section 1-23-110 of the 1976 Code, as last amended by
Act 91 of 1989, is further amended to read:
"Section 1-23-110. (a) This section applies
only to the promulgation of regulations as defined in item (4) of Section
1-23-10 and is subject to the additional requirements of Section
1-23-120.
(b) (A) Before the promulgation, amendment, or
repeal of a regulation, an agency shall:
(1) give notice of a drafting period by publication of a notice
in the State Register. The notice shall must include the
time when, the place where, and the manner in address
to which interested persons may present their views
submit written comments during the initial drafting
procedures period before the regulations are submitted
as proposed;
(2) submit to the State Budget and Control Board
a preliminary assessment report prepared in accordance with Section
1-23-115 on regulations defined in Section 1-23-10(4)(b);
(2)(3) give at least thirty days' notice
of intended action and opportunity of oral hearing that the
agency will receive data, views, or arguments, orally and in writing,
from interested persons on proposed regulations by publication of
a notice in the State Register. The notice must include:
(a) the address to which written comments must be
sent and the time period of not less than thirty days for submitting these
comments;
(b) the date, time, and place of a public hearing which must
not be held sooner than thirty days from the date the notice is published
in the State Register;
(c) either the text or a synopsis of the proposed
regulation,;
(d) the statutory authority for its promulgation,
the time when, the place where, and the manner in which interested
persons may present their views on it and;
(e) a preliminary fiscal impact statement prepared by
the agency reflecting estimates of costs to be incurred by the
State and its political subdivisions in complying with the proposed
regulation. This requirement of A preliminary fiscal impact
statement does is not apply to required
for those regulations which are not subject to General Assembly
review under the provisions of Section 1-23-120. The
notice;
(f) the summary of the final assessment report prepared
pursuant to Section 1-23-115 by the State Budget and Control Board and
notice that copies of the final report are available from the agency. The
agency may charge a reasonable fee to cover the costs associated with
this distribution requirement. A regulation that does not require an
assessment report because it does not come within the definition of
Section 1-23-10(4)(b), must include a statement to that effect. A
regulation exempt pursuant to Section 1-23-115(D) from filing an
assessment report must include an explanation of the exemption.
(B) Notices required by this section must be mailed by
the promulgating agency to all persons who have made timely
requests of the agency for advance notice of proposed promulgation of
regulations.
(3) afford all interested persons reasonable opportunity to
submit data, views, or arguments, orally or in writing. Opportunity for
oral hearing, which may not be held sooner than thirty days from the
date of publication of the notice in the State Register, must be granted
if requested by twenty-five persons, by a governmental subdivision or
agency, or by an association having not less than twenty-five
members.
(C) The agency shall consider fully all written and oral
submissions respecting the proposed regulation.
(C)(D) A proceeding to contest any
a regulation on the ground of noncompliance with the
procedural requirements of this section must be commenced within one
year from the effective date of the regulation."
SECTION 5. Section 1-23-120 of the 1976 Code, as last amended by
Act 91 of 1989, is further amended to read:
"Section 1-23-120. (A) All regulations except those
specifically exempted under this article section must be
submitted to the General Assembly for review in accordance with the
provisions of the this article, but no regulation may be
submitted to the General Assembly more than one year after publication
of the drafting notice initiating the regulation pursuant to Section
1-23-110(b).
(B) To initiate the process of review, the agency shall file
with the President of the Senate and the Speaker of the House of
Representatives:
(1) a copy of any the regulations
promulgated along with;
(2) a request for review; and
(3) a brief synopsis of the regulations submitted
explaining the content and any changes in existing regulations resulting
from the regulations;
(4) a copy of the final assessment report and the
summary prepared by the State Budget and Control Board pursuant to
Section 1-23-115. A regulation that does not require an assessment
report because it does not come within the definition of Section
1-23-10(4)(b), must include a statement to that effect. A regulation
exempt pursuant to Section 1-23-115(D) from filing an assessment
report must include an explanation of the exemption;
(5) a copy of the preliminary fiscal impact
statement prepared by the agency as required in Section
1-23-110(b)(2).
(C) Upon receipt of the request, the President and Speaker
reviewing the request shall submit it for consideration to the standing
committees of the Senate and House which are most concerned with the
function of the promulgating agency. A copy of the regulation or a
synopsis of it must be given to each member of the committee. The
committees to which regulations are referred have one hundred
twenty days from the date regulations are submitted to the General
Assembly to consider and take action on these regulations
so referred and determine their actions on the regulations.
However, if a regulation is referred to a committee and no
action occurs in that committee on the regulation within sixty calendar
days of receipt of the regulation by the appropriate committee,
the regulation must be placed on the agenda of the full committee
beginning with the next scheduled full committee meeting. Only
those calendar days occurring during sessions of the General Assembly
are included in computing the days elapsed.
(D) If a joint resolution to approve a regulation
is not enacted within one hundred twenty days after submission
the regulation is submitted to the General Assembly or if a
joint resolution to disapprove a regulation has not been
introduced by a standing committee to which the regulation was referred
for review, the regulation is effective upon publication in the State
Register. Upon introduction of the first joint resolution disapproving a
regulation by a standing committee to which the regulation was referred
for review, the one-hundred-twenty-day period for automatic
approval is tolled. A regulation may not be filed under the emergency
provisions of Section 1-23-130 if a joint resolution to disapprove the
regulation has been introduced by a standing committee to which the
regulation was referred. Upon a negative vote by either the Senate or
House of Representatives on the resolution disapproving the regulation
and the notification in writing of the negative vote to the Speaker of the
House of Representatives and the President of the Senate by the clerk of
the house in which the negative vote occurred, the remainder of the
period begins to run. If the remainder of the period is less than ninety
days, additional days must be added to the remainder to equal ninety
days. The introduction of a joint resolution by the committee
of either house does not prevent the introduction of a joint
resolution by the committee of the other house to either approve or
disapprove the regulations concerned. A joint resolution approving
or disapproving a regulation must include:
(1) the synopsis of the regulation as provided for in subsection
(B);
(2) a summary of the assessment report prepared by the State
Budget and Control Board pursuant to section 1-23-115 or the statement
or explanation as required in subsection (B).
(E) The one-hundred-twenty-day period of review
begins on the date the regulation is filed with the President and Speaker.
Sine die adjournment of the General Assembly tolls the running of the
period of review, and the remainder of the period begins to run upon the
next convening of the General Assembly excluding special sessions
called by the Governor.
(F) Any member may introduce a joint resolution
approving or disapproving a regulation or group of regulations
thirty days following the date the regulations concerned are submitted
to a standing committee for review and no committee joint
resolution approving or disapproving the regulations has been
introduced and the regulations concerned have not been withdrawn by
the promulgating agency pursuant to Section 1-23-125, but the
introduction does not toll the one-hundred-twenty-day period of
automatic approval.
(G) General Assembly review is not required for
regulations promulgated:
(1) to maintain compliance with federal law including, but
not limited to, grant programs; however, the synopsis of the
regulation required to be submitted by subsection (B) must include
citations to federal law, if any, mandating the promulgation of or
changes in the regulation justifying this exemption; Review
also is not required for regulations promulgated
(2) by the state Board of Financial Institutions in order
to authorize state-chartered banks, state-chartered savings and loan
associations, and state-chartered credit unions to engage in activities that
are authorized pursuant to Section 34-1-110.;
Review is not required for regulations promulgated
(3) by the South Carolina Tax Commission to adopt
regulations, revenue rulings, revenue procedures, and technical advice
memoranda of the Internal Revenue Service so as to maintain
conformity with the Internal Revenue Code of 1954.;
(4) as emergency regulations under Section 1-23-130.
All regulations submitted to the General Assembly for approval must
have attached to them a brief synopsis or analysis of the regulations
submitted explaining the content and any changes in existing regulations
resulting from the regulations. The synopsis or analysis must include
citations of federal law, if any, mandating changes in the regulations.
The one-hundred-twenty-day period of review provided for in this
section does not begin to run until the synopsis or analysis is attached to
regulations submitted.
(H) Notwithstanding the provisions of this section, a
regulation which is required to have an assessment report pursuant to
Section 1-23-115 must be approved by joint resolution within one
hundred twenty days of the filing of the regulation with the President of
the Senate and the Speaker of the House or it is deemed disapproved. In
calculating these days, the only tolling may occur pursuant to
withdrawal of the regulation in accordance with Section 1-23-125,
mutatis mutandis.
(I) For purposes of this section, only those calendar days
occurring during a session of the General Assembly, excluding special
sessions, are included in computing the days elapsed."
SECTION 6. Section 1-23-130 of the 1976 Code is amended to read:
"Section 1-23-130. (a)(A) If any
an agency finds that an imminent peril to public health, safety,
or welfare requires immediate promulgation of an emergency regulation
prior to before compliance with the procedures
prescribed in this article, or if a natural resources related agency
finds that abnormal or unusual conditions, immediate need, or the state's
best interest requires immediate promulgation of emergency regulations
to protect or manage natural resources, the agency may file
the regulation with the Legislative Council along
with:
(1) the regulation;
(2) a statement of the situation requiring immediate
promulgation and;
(3) the Governor's statement verifying the emergency
if required by subsection (B) or a statement that no verification is
needed.
The regulation shall become becomes effective as
of the time of filing.
(B) However, if an emergency regulation comes within the
definition of Section 1-23-10(4)(b), the Governor must agree that an
emergency exists and a statement of the Governor verifying the
emergency must be submitted with the regulation at the time of filing.
The regulation is effective upon filing. Emergency regulations filed
under this subsection may not be refiled under subsection (C) unless
accompanied by a summary of the assessment report.
(C) If emergency regulations are promulgated
either filed or expire while the General Assembly is in session,
the emergency regulations shall remain in effect for ninety days
only and may not be renewed under the provisions of this section
refiled; but if emergency regulations are promulgated
both filed and expire during a time when the General Assembly
is not in session they may be renewable refiled for an
additional ninety days if the General Assembly is not in regular
session at the expiration of the ninety day period.
(b)(D) Emergency regulations and the agency
statement as to the necessity of immediate promulgation must be
published in the next issue of the State Register following the date of
filing. A summary of the assessment report required for refiling
emergency regulations pursuant to subsection (B) must also be published
in the next issue of the State Register.
(c)(E) Any emergency regulations promulgated
pursuant to this section may be permanently promulgated by complying
with the requirements of this article."
SECTION 7. The amendments to Article 1, Chapter 23, Title 1, as
contained in this act, apply to those regulations for which a notice of
drafting pursuant to Section 1-23-110 is filed subsequent to this act's
effective date.
SECTION 8. This act takes effect upon approval by the Governor.
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