Current Status Bill Number:
921Ratification Number: 445Act Number: 411Type of Legislation: General Bill GBIntroducing Body: SenateIntroduced Date: 19960109Primary Sponsor: BryanAll Sponsors: Bryan, Elliott, Reese, Wilson, Gregory, Leatherman, WashingtonDrafted Document Number: RES9770.JEBDate Bill Passed both Bodies: 19960523Date of Last Amendment: 19960521Governor's Action: SDate of Governor's Action: 19960604Subject: Regulations, legislative review of, procedures
Body Date Action Description Com Leg Involved ______ ________ _______________________________________ _______ ____________ ------ 19960621 Act No. A411 ------ 19960604 Signed by Governor ------ 19960530 Ratified R445 Senate 19960523 Concurred in House amendment, enrolled for ratification House 19960522 Read third time, returned to Senate with amendment House 19960521 Amended, read second time House 19960521 Reconsidered vote whereby debate was adjourned House 19960521 Debate adjourned until Wednesday, 19960522 House 19960515 Committee report: Favorable with 25 HJ amendment House 19960327 Introduced, read first time, 25 HJ referred to Committee Senate 19960326 Read third time, sent to House Senate 19960321 Amended, read second time, ordered to third reading with notice of general amendments Senate 19960320 Committee report: Favorable with 11 SJ amendment Senate 19960109 Introduced, read first time, 11 SJ referred to Committee Senate 19950926 Prefiled, referred to Committee 11 SJView additional legislative information at the LPITS web site.
(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:
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."
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."
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.