H 3581 Session 111 (1995-1996)
H 3581 General Bill, By Sharpe, Bailey, Cato, Davenport, R.C. Fulmer, Haskins,
R.J. Herdklotz, Law, Littlejohn, Mason, Meacham, Rice, Riser, D. Smith, Vaughn and
Young-Brickell
A Bill to amend Section 1-23-10, as amended, Code of Laws of South Carolina,
1976, relating to definitions in the Administrative Procedures Act, so as to
revise the definition of regulation; to amend Section 1-23-110, as amended,
relating to procedures for promulgating regulations, so as to further provide
for the contents of the public hearing notice on proposed regulations; to
amend Section 1-23-111, relating to procedures for conducting public hearings
and the report of the official presiding at the public hearing and the
agency's response to the report, so as to provide the basis for the
determination of the need and reasonableness of the regulation and to revise
the options available to an agency in responding to a report; 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 and to authorize a
legislative committee to request a report and to provide procedures under
which the one hundred twenty day review period is tolled upon such a request,
and to mandate the contents of the report; to amend Sections 1-23-120 and
1-23-125, both as amended, both relating to General Assembly approval of
regulations, so as to prohibit an agency from withdrawing or modifying a
regulation except upon notice by the legislative committee.
02/14/95 House Introduced and read first time HJ-13
02/14/95 House Referred to Committee on Judiciary HJ-14
04/12/95 House Committee report: Favorable Judiciary HJ-4
04/19/95 House Objection by Rep. Baxley, Rogers, Canty, Neal,
Cobb-Hunter, Lloyd, Cave, Vaughn, Cato, Fulmer,
R. Smith & Herdklotz HJ-33
05/09/95 House Read second time HJ-216
05/09/95 House Roll call Yeas-88 Nays-0 HJ-216
05/10/95 House Read third time and sent to Senate HJ-86
05/11/95 Senate 2/3 vote failed for introduction after May 1 SJ-18
01/16/96 Senate Introduced and read first time SJ-5
01/16/96 Senate Referred to Committee on Judiciary SJ-5
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
April 12, 1995
H. 3581
Introduced by REPS. Sharpe, Herdklotz, Meacham, Bailey,
Littlejohn, Fulmer, Law, A. Young, Rice, Davenport, Vaughn,
Haskins, D. Smith, Cato, Mason and Riser
S. Printed 4/12/95--H.
Read the first time February 14, 1995.
THE COMMITTEE ON JUDICIARY
To whom was referred a Bill (H. 3581), to amend Section 1-23-10, as amended, Code of Laws of South Carolina, 1976, relating to
definitions in the Administrative Procedures Act, etc., respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass:
JAMES H. HARRISON, for Committee.
A BILL
TO AMEND SECTION 1-23-10, AS AMENDED, CODE OF
LAWS OF SOUTH CAROLINA, 1976, RELATING TO
DEFINITIONS IN THE ADMINISTRATIVE PROCEDURES
ACT, SO AS TO REVISE THE DEFINITION OF REGULATION;
TO AMEND SECTION 1-23-110, AS AMENDED, RELATING
TO PROCEDURES FOR PROMULGATING REGULATIONS, SO
AS TO FURTHER PROVIDE FOR THE CONTENTS OF THE
PUBLIC HEARING NOTICE ON PROPOSED REGULATIONS;
TO AMEND SECTION 1-23-111, RELATING TO PROCEDURES
FOR CONDUCTING PUBLIC HEARINGS AND THE REPORT
OF THE OFFICIAL PRESIDING AT THE PUBLIC HEARING
AND THE AGENCY'S RESPONSE TO THE REPORT, SO AS
TO PROVIDE THE BASIS FOR THE DETERMINATION OF
THE NEED AND REASONABLENESS OF THE REGULATION
AND TO REVISE THE OPTIONS AVAILABLE TO AN
AGENCY IN RESPONDING TO A REPORT; 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 AND TO AUTHORIZE A LEGISLATIVE
COMMITTEE TO REQUEST A REPORT AND TO PROVIDE
PROCEDURES UNDER WHICH THE ONE HUNDRED
TWENTY DAY REVIEW PERIOD IS TOLLED UPON SUCH A
REQUEST, AND TO MANDATE THE CONTENTS OF THE
REPORT; TO AMEND SECTIONS 1-23-120 AND 1-23-125,
BOTH AS AMENDED, BOTH RELATING TO GENERAL
ASSEMBLY APPROVAL OF REGULATIONS, SO AS TO
PROHIBIT AN AGENCY FROM WITHDRAWING OR
MODIFYING A REGULATION EXCEPT UPON NOTICE BY
THE LEGISLATIVE COMMITTEE.
Be it enacted by the General Assembly of the State of South
Carolina:
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 including, but not limited
to, tests, methods, criteria, or guidance that explains existing
statutory or regulatory requirements used in permitting or licensing
matters; however, this definition may not be construed as granting
any additional authority to an agency beyond those powers
expressly conferred or necessarily implied from the agency's
statutory authority. The term `regulation' includes the
amendment or repeal of a prior regulation but does not include
descriptions of agency procedures applicable only to agency
personnel; criteria or guidance that merely interprets existing
requirements; opinions of the Attorney General; decisions or
orders in rate making, or 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 Board
Services; orders of the 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; 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
Human Affairs Commission relating to firms or individuals;
advisory opinions of any agencies; and other agency actions
relating only to specified individuals.
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 either the
text of a synopsis 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;".
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)."
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 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
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), 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 must issue a written report which must 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) 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 must elect to:
(a) follow the suggested modifications of the presiding
official and submit the proposed regulation for legislative approval
pursuant to Section 1-23-120 modify the proposed
regulation by including the suggested modifications of the presiding
official;
(b) not modify the proposed regulation but submit the
proposed regulation as originally drafted for legislative approval
pursuant to Section 1-23-120 with a copy of the presiding official's
report attached based on the presiding official's suggested
modifications in which case the agency must 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) withdraw the proposed regulation 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."
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."
SECTION 6. The portion before the enumerated items in Section
1-23-115(C) of the 1976 Code, as last amended by Act 181 of
1993, is further amended to read:
"(C) At a minimum, the The preliminary
and final assessment report 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 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 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 must
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; however, these items may be included in the
final assessment report prepared by the division."
SECTION 7. Section 1-23-120(A) of the 1976 Code, as last
amended by Act 181 of 1993, 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."
SECTION 8. Section 1-23-125 of the 1976 Code, as last amended
by Act 605 of 1988, is further amended to read:
"(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:
(a)(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;
(b)(2) withdraw the regulation permanently;
(c)(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 (c)(3), it shall notify the committee
in writing, and the remainder of the period begins to run
only upon this notification.
(D) The provisions of this This
section, as they apply it applies to approval,
disapproval, or modification of regulations, do 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) When any 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 the
provisions of this article."
SECTION 9. This act takes effect upon approval by the
Governor and applies 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.
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