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Current Status Bill Number:View additional legislative information at the LPITS web site.3271 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:20010116 Primary Sponsor:Harrison All Sponsors:Harrison Drafted Document Number:l:\council\bills\nbd\11120ac01.doc Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Federal government employees, agencies; contested case, final agency action; Administrative procedures, Regulations History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 20010116 Introduced, read first time, 25 HJ referred to Committee Versions of This Bill
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 1-23-395 SO AS TO PROHIBIT CONSIDERATION OF DATA, OPINIONS, COMMENTS, OR SUGGESTIONS PROVIDED BY EMPLOYEES OR AGENCIES OF THE FEDERAL GOVERNMENT UNLESS THEY ARE ACCOMPANIED BY A STATEMENT DECLARING THAT THE PREPARERS OF THE INFORMATION AND THE FILES OF THE AGENCY WILL BE AVAILABLE FOR DISCOVERY AND TESTIMONY IN PROCEEDINGS CONCERNING A CONTESTED CASE IN THE MATTER OF A FINAL AGENCY ACTION; AND TO AMEND SECTIONS 1-23-320, AS AMENDED, AND 1-23-330, RELATING, RESPECTIVELY, TO PREHEARING REQUIREMENTS AND EVIDENTIARY MATTERS IN CONTESTED CASES, SO AS TO FURTHER PROVIDE THAT DATA, OPINIONS, COMMENTS, AND SUGGESTIONS OF FEDERAL EMPLOYEES AND AGENCIES ARE PROHIBITED FROM CONSIDERATION UNLESS THE EMPLOYEES AND FILES ARE AVAILABLE TO THE PARTIES TO THE ACTION.
Whereas, all parties to contested cases subject to the South Carolina Administrative Procedures Act are entitled to due process, which should include the ability to cross examine all witnesses in the proceeding and any authors of documents made a part of the record of decision and potentially relied upon by an administrative agency as support or reasoning for a final agency action; and
Whereas, in many cases agencies of the State receive and rely on the data, advice, or opinion of agencies of the federal government, authored and offered by employees of the United States; and
Whereas, the courts of the United States have decided that the supremacy clause of the United States Constitution prohibits mandatory attendance and testimony of federal employees in state court proceedings, judicial or administrative, in which the United State is not a party; and
Whereas, the agencies of the federal government are empowered in the exercise of their discretion to permit their records and documents to be examined and copied by parties to judicial or administrative proceedings and to permit their employees to be deposed during discovery and examined as witnesses in such proceedings. Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 1-23-395. (A) In taking final agency action, no state agency, department, board, or commission shall consider data, opinions, comments, or suggestions provided by employees or agencies of the federal government unless such is accompanied by a clear and unequivocal statement that:
(1) the preparers of the data, opinion, comment, or suggestion will be available, in the same manner and to the same extent as if such persons were not employees of the federal government, for pre-hearing discovery depositions and testimony at any hearing if the final agency action becomes the subject of a contested case;
(2) the files of the federal government employee or agency, or both, will be made available for discovery by all parties to a contested case arising from the final agency action, in full accord with the rules governing discovery in a contested case.
(B) Nothing in this section may be construed to prohibit the consideration of material which satisfies the requirements of Rule 803 of the South Carolina Rules of Evidence or the introduction of this material into evidence in any contested case proceeding conducted pursuant to this article."
SECTION 2. Section 1-23-320 of the 1976 Code is amended by adding at the end:
"( j) No evidence, either testimonial or documentary, or both, may be received into evidence and made a part of the record of a proceeding conducted pursuant to this article if:
(1) it was produced by agents or employees of the federal government who were not available to all parties to the proceeding for pre-hearing deposition or review of documents, or both, in accordance with the discovery rules governing these proceedings; and
(2) if the person or persons offering testimony or responsible for the preparation of all parts of any documentary evidence were not made available to be cross examined by all parties.
Provisions governing the receipt of data, opinions, comments, and suggestions from agencies and employees of the federal government by agencies of the State and their use in the taking of final agency action are specified in Section 1-23-395.
Nothing in this subsection may be construed to prohibit agreements among the parties, subject to the approval of the presiding judge, to take testimony of any witness by deposition for use at a hearing in lieu of live testimony."
SECTION 3. Section 1-23-330 of the 1976 Code is amended by adding at the end:
"(5) No evidence barred by Section 1-23-320(j) may be admitted into the record of any proceeding, and no witness may testify regarding data, opinions, comments, or suggestions, either oral or written, by agencies or employees of the federal government when the testimony and cross examination at the hearing or pre-hearing deposition, or both, of persons who produced the data, opinions, comments, or suggestions have been prevented by the actions of the federal government or an agency of the federal government. No such testimony is permitted if pre-hearing review of documents in the custody of the federal government related to the testimony, and sought in accordance with the discovery rules governing the proceeding, has been prevented by the actions of the federal government or any of its agencies."
SECTION 4. This act takes effect upon approval by the Governor.
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