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S. 1185
STATUS INFORMATION
General Bill
Sponsors: Senators Grooms, Verdin and Hutto
Document Path: l:\s-res\lkg\004regu.dag.doc
Introduced in the Senate on February 28, 2006
Currently residing in the Senate Committee on Agriculture and Natural Resources
Summary: Agriculture Regulatory Flexibility Act of 2006
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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2/28/2006 Senate Introduced and read first time SJ-7
2/28/2006 Senate Referred to Committee on Agriculture and Natural
Resources SJ-7
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND TITLE 46 OF THE 1976 CODE, BY ADDING CHAPTER 53, TO PROVIDE FLEXIBILITY IN PROMULGATING REGULATIONS THAT ADVERSELY IMPACT AGRICULTURAL FACILITIES AND AGRICULTURAL OPERATIONS, TO DEFINE "AGRICULTURAL FACILITY" AND "AGRICULTURAL OPERATION", TO PROVIDE FOR THE AGRICULTURE REGULATORY REVIEW COMMITTEE AND ITS MEMBERSHIP, POWERS, AND RESPONSIBILITIES, TO REQUIRE REVIEW OF AGENCY REGULATIONS TO PROMOTE FLEXIBILITY IN PROMULGATING REGULATIONS THAT ADVERSELY IMPACT AGRICULTURAL FACILITIES AND AGRICULTURAL OPERATIONS, TO REQUIRE EXAMINATION OF REGULATORY ALTERNATIVES AND PROVIDE FOR REVIEW OF AGENCY DECISIONS, AND TO PROVIDE AN EXEMPTION FOR EMERGENCY REGULATIONS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 46 of the 1976 Code is amended by adding a new Chapter to read:
Section 46-53-10. (A) This chapter may be cited as the "South Carolina Agriculture Regulatory Flexibility Act of 2006."
(B) As used in this chapter "agricultural facility" includes, but is not limited to, any land, building, structure, pond, impoundment appurtenance, machinery, or equipment which is used for the commercial production or processing of crops, trees, livestock, animals, poultry, honeybees, honeybee products, livestock products, poultry products, or products which are used in commercial aquaculture.
(C) As used in this chapter "agricultural operation" means:
(1) the plowing, tilling, or preparation of soil at an agricultural facility; (2) the planting, growing, fertilizing, or harvesting of crops; (3) the application of pesticides, herbicides, or other chemicals, compounds, or substances to crops, weeds, or soil in connection with the production of crops, livestock, animals, or poultry; (4) the breeding, hatching, raising, producing, feeding, keeping, slaughtering, or processing of livestock, aquatic animals, equines, chickens, turkeys, poultry or other fowl normally raised for food, mules, cattle, sheep, goats, rabbits, or similar farm animals for commercial purposes; (5) the production and keeping of honeybees, the production of honeybee products, and honeybee processing facilities; (6) the production, processing, or packaging of eggs or egg products; (7) the manufacturing of feed for poultry or livestock; (8) the rotation of crops; (9) commercial aquaculture; (10) the application of existing, changed, or new technology, practices, processes, or procedures to an agricultural operation; (11) the operation of a roadside market; and (12) silviculture. (D) Before an agency submits to the General Assembly for review a regulation that may have a significant adverse impact on agricultural facilities or agricultural operations, the agency, if directed by the Agricultural Regulatory Review Committee, shall prepare:
(1) an economic impact statement that includes the following:
(a) an identification and estimate of the number of agricultural facilities and agricultural operations subject to the proposed regulation;
(b) the projected reporting, recordkeeping, and other administrative costs required for agricultural facilities and agricultural operations to comply with the proposed regulation, including the type of professional skills necessary for preparation of the report or record;
(c) a statement of economic impact on agricultural facilities and agricultural operations; and
(d) a description of less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation;
(2) a regulatory flexibility analysis in which the agency, where consistent with health, safety, and environmental and economic welfare, must consider utilizing regulatory methods that accomplish the objectives of applicable statutes while minimizing a significant adverse impact on agricultural facilities and agricultural operations.
(E) The agency shall consider, without limitation, each of the following methods of reducing the impact of the proposed regulation on agricultural facilities and agricultural operations:
(a) establishment of less stringent compliance of reporting requirements for agricultural facilities and agricultural operations;
(b) establishment of less stringent schedules or deadlines for compliance or reporting requirements for agricultural facilities and agricultural operations;
(c) consolidation or simplification of compliance or reporting requirements for agricultural facilities and agricultural operations;
(d) establishment of performance standards for agricultural facilities and agricultural operations to replace design or operational standards required in the proposed regulation; and
(e) exemption of agricultural facilities and agricultural operations from all or part of the requirements contained in the proposed regulation.
(F) An agricultural facility or agricultural operation that is adversely impacted or aggrieved in connection with the promulgation of a regulation is entitled to judicial review of agency compliance with the requirements of this chapter. An agricultural facility or agricultural operation may seek the review during the period beginning on the date of final agency action.
(G)(1) Within five years of the effective date of this chapter, each agency shall review all agency regulations existing at the time of the effective date to determine whether to continue the regulations without change or amend or rescind them to minimize economic impact of the regulations on agricultural facilities and agricultural operations in a manner consistent with the stated objective of applicable statutes. In a written report to the Agriculture Regulatory Review Committee, the agency must state the reasons for its determination to amend, rescind, or leave a regulation unchanged. If the head of the agency determines that completion of the initial review of existing regulations is not feasible by the established date, the agency shall publish in the State Register a statement certifying that determination and when the agency expects to complete the review. The time period for review must not be extended to a time greater than ten years after the effective date of this chapter.
(2) Regulations that take effect on or after the effective date of this chapter must be reviewed within five years of the publication of the final regulation in the State Register and every five years after that to ensure that they minimize economic impact on agricultural facilities and agricultural operations in a manner consistent with the stated objectives of applicable statutes.
(3) In reviewing regulations to minimize their economic impact on agricultural facilities and agricultural operations, the agency shall consider the:
(a) continued need for the regulation;
(b) nature of complaints or comments received concerning the regulation from the public;
(c) complexity of the regulation;
(d) extent to which the regulation overlaps, duplicates, or conflicts with other federal, state, and local governmental regulations; and
(e) length of time since the regulation has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the regulation.
Section 46-53-20. (A)(1) There is established an Agriculture Regulatory Review Committee within the South Carolina Department of Commerce. For purposes of this chapter, "committee" is the Agriculture Regulatory Review Committee and "department" is the South Carolina Department of Commerce.
(2) The duties of the committee, in determining if a proposed permanent regulation has a significant adverse impact on agricultural facilities and agricultural operations, are to:
(a) direct the promulgating agency to prepare the regulatory flexibility analysis described in Section 46-53-10(D)(2) no later than the end of the public comment period that follows the notice of proposed regulation, as provided in Section 1-23-110(A)(3); and
(b) request, at the committee's discretion, the Office of Research and Statistics of the Budget and Control Board to prepare a final assessment report, as provided in Section 1-23-115(B), of the proposed permanent regulation no later than the end of the public comment period that follows the notice of proposed regulation, as provided in Section 1-23-110(A)(3). The committee may request a final assessment report from the Office of Research and Statistics only in cases where the committee determines that information in addition to the agency's economic impact as provided in Section 46-53-10(D)(1) is critical to the committee's determination that a proposed permanent regulation has a significant adverse impact on agricultural facilities or agricultural operations. The Office of Research and Statistics:
(i) within the review and comment period, shall perform a final assessment report of the regulation on agricultural facilities and agricultural operations within sixty days of a request for assessment by the committee, and the promulgating agency has sixty days to complete a regulatory flexibility analysis; and
(ii) may request additional information from the agency. The sixty-day final assessment report deadline must be tolled until the time that the Office of Research and Statistics receives the requested additional information. The one-year deadline for submission of regulations to the General Assembly as provided in Section 1-23-120(A) also must be tolled until the time that both analyses are prepared and presented to the committee; and
(c) submit to the promulgating agency, no later than thirty days after receipt of the regulatory flexibility analysis prepared by the promulgating agency and, if requested by the committee, after receipt of the final assessment report prepared by the Office of Research and Statistics, a written statement advising the agency that a proposed permanent regulation has a significant adverse impact on agricultural facilities or agricultural operations.
(3) This subsection does not limit the committee's ability to petition a state agency to amend, revise, or revoke an existing regulation.
(4) Staff support for the committee must be provided by the department. The department shall act only as a coordinator for the committee, and may not provide legal counsel for the committee.
(B) The committee shall consist of eleven members, appointed as follows:
(1) five members to be appointed by the Governor;
(2) three members to be appointed by the President Pro Tempore of the Senate; and
(3) three members to be appointed by the Speaker of the House of Representatives.
(C) In addition, the Chairman of the Agriculture and Natural Resources Committee of the South Carolina Senate and the Chairman of the Agriculture, Natural Resources and Environmental Affairs Committee of the South Carolina House of Representatives, or their designees, shall serve as nonvoting, ex officio members of the committee. During the committee review process, the director or his designee, of the promulgating agency shall be available at the request of the committee for comment on the proposed regulation.
(D) Appointments to the committee must be representative of a variety of agricultural facilities and agricultural operations in this State. All appointed members shall be either current or former owners or officers of an agricultural facility or an agricultural operation.
(E) The initial appointments to the committee must be made within sixty days from the effective date of this act. The department shall provide the name and address of each appointee to the Governor, the President Pro Tempore of the Senate, the Speaker of the House of Representatives, the Chairman of the Agriculture and Natural Resources Committee of the Senate and the Chairman of the Agriculture, Natural Resources and Environmental Affairs Committee of the House of Representatives.
(F)(1) Members initially appointed to the committee shall serve for terms ending December 31, 2007. Thereafter, appointed members shall serve two-year terms that expire on December thirty-first of the second year.
(2) The Governor shall appoint the initial chairman of the committee from the appointed members for a term ending December 31, 2008, and shall appoint subsequent chairs of the committee from the appointed members for two-year terms that expire on December thirty-first of the second year.
(3) The committee shall meet as determined by its chairman.
(4) A majority of the voting members of the committee constitutes a quorum to do business. The concurrence of a majority of the members of the committee present and voting is necessary for an action of the committee to be valid.
(5) An appointed committee member may not serve more than three consecutive terms.
Section 46-53-30. (A) For promulgated regulations, the committee may file a written petition with the agency that has promulgated the regulations opposing all or part of a regulation that has a significant adverse impact on agricultural facilities or agricultural operations.
(B) Within sixty days after the receipt of the petition, the agency shall determine whether the impact statement or the public hearing addressed the actual and significant impact on agricultural facilities and agricultural operations or if conditions justifying the regulation have changed. The agency shall submit a written response of its determination to the committee within sixty days after receipt of the petition. If the agency determines that the petition merits the amendment, revision, or revocation of a regulation, the agency may initiate proceedings in accordance with the applicable requirements of the Administrative Procedures Act. If the agency determines that the petition does not merit the amendment, revision, or revocation of a regulation, the agency shall state in its response the reasons the petition did not merit amendment, revision, or revocation.
(C) If the agency determines that the petition does not merit the amendment or repeal of a regulation, the committee promptly shall convene a meeting for the purpose of determining whether to recommend that the agency initiate proceedings to amend or repeal the regulation in accordance with the Administrative Procedures Act. The review must be based upon the actual record presented to the agency. The committee shall base its recommendation on any of the following reasons:
(1) the actual impact on agricultural facilities and agricultural operations was not reflected in, or significantly exceeded, the economic impact statement formulated by the Office of Research and Statistics, pursuant to Section 46-53-20(A)(2);
(2) the actual impact was not previously considered by the agency in its economic impact statement formulated pursuant to Section 46-53-10(D) or its regulatory flexibility analysis formulated pursuant to Section 46-53-20(A)(2); or
(3) the technology, economic conditions, or other relevant factors justifying the purpose for the regulations have changed or no longer exist.
(D) If the committee recommends that an agency initiate regulation proceedings for a reason provided in subsection (C), the committee shall submit to the Speaker of the House of Representatives, the President Pro Tempore of the Senate and to the chairman of the committee having jurisdiction over the promulgated regulation an evaluation report and the agency's response as provided in Section 46-53-30(B). The General Assembly may take later action in response to the evaluation report and the agency's response as the General Assembly finds appropriate.
Section 46-53-40. (A)(1) Notwithstanding another provision of law, an agency authorized to assess administrative penalties or administrative fines upon an agricultural business may waive or reduce an administrative penalty or administrative fine for a violation of a regulation by an agricultural facility or an agricultural operation if the:
(a) agricultural facility or agricultural operation corrects the violation within thirty days or less after receipt of a notice of violation or citation; or
(b) violation was the result of an excusable misunderstanding of the agency's interpretation of a regulation.
(2) Item (1) does not apply if:
(a) an agricultural facility or an agricultural operation has been notified previously of the violation of a regulation by the agency pursuant to Section 46-53-40(A)(1) and has been given an opportunity to correct the violation on a previous occasion;
(b) an agricultural facility or an agricultural operation fails to exercise good faith in complying with the regulation;
(c) a violation involves wilful or criminal conduct;
(d) a violation results in imminent or adverse health, safety, or environmental impact; or
(e) the penalty or fine is assessed pursuant to a federal law or regulation, for which a waiver or reduction is not authorized by the federal law or regulation.
Section 46-53-50. This chapter does not apply to emergency regulations promulgated pursuant to Section 1-23-130, regulations promulgated pursuant to Chapter 9 of Title 46 or Chapter 4 of Title 47, or to proposed regulations by an agency to implement a statute or ordinance that does not require an agency to interpret or describe the requirements of the statute or ordinance, such as state legislative or federally mandated provisions that do not allow discretion to consider less restrictive alternatives or to a federal regulation that has gone through the Federal Regulatory Flexibility Act, if the federal review process is the same as or stricter than the requirements of these sections.
SECTION 2. This act takes effect upon approval by the Governor.
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