South Carolina General Assembly
111th Session, 1995-1996

Bill 3581


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                       3581
Type of Legislation:               General Bill GB
Introducing Body:                  House
Introduced Date:                   19950214
Primary Sponsor:                   Sharpe
All Sponsors:                      Sharpe, Herdklotz, Meacham,
                                   Bailey, Littlejohn, Fulmer, Law,
                                   A. Young, Rice, Davenport, Vaughn,
                                   Haskins, D. Smith, Cato, Mason and
                                   Riser 
Drafted Document Number:           br1\18060ac.95
Residing Body:                     Senate
Current Committee:                 Judiciary Committee 11 SJ
Subject:                           Administrative procedures,
                                   regulations



History


Body    Date      Action Description                       Com     Leg Involved
______  ________  _______________________________________  _______ ____________

Senate  19960116  Introduced, read first time,             11 SJ
                  referred to Committee
Senate  19950511  Received after 19950501, 
                  two-thirds vote failed, 
                  introduction refused
House   19950510  Read third time, sent to Senate
House   19950509  Read second time
House   19950419  Objection by Representative                      Baxley
                                                                   Rogers
                                                                   Canty
                                                                   Neal
                                                                   Cobb-Hunter
                                                                   Lloyd
                                                                   Cave
                                                                   Vaughn
                                                                   Cato
                                                                   Fulmer
                                                                   R. Smith
                                                                   Herdklotz
House   19950412  Committee report: Favorable              25 HJ
House   19950214  Introduced, read first time,             25 HJ
                  referred to Committee

View additional legislative information at the LPITS web site.


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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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