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S. 1212
STATUS INFORMATION
General Bill
Sponsors: Senators Alexander, McGill, Williams, Knotts, O'Dell, Rankin, Leatherman, Martin and Mescher
Document Path: l:\council\bills\agm\18181mm06.doc
Introduced in the Senate on March 2, 2006
Currently residing in the Senate Committee on Labor, Commerce and Industry
Summary: Quality Production of Manufactured Products Inspection Program Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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3/2/2006 Senate Introduced and read first time SJ-6
3/2/2006 Senate Referred to Committee on Labor, Commerce and Industry
SJ-6
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND TITLE 39, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO TRADE AND COMMERCE, BY ADDING CHAPTER 12, SO AS TO PROVIDE FOR AND MAINTAIN QUALITY PRODUCTS IN THE STREAM OF COMMERCE IN SOUTH CAROLINA, THROUGH REGISTRATION OF ORIGIN, INSPECTION, ESTABLISHMENT OF STANDARDS, ENFORCEMENT, AND PENALTIES INCLUDING CITIZENS' ACTIONS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 39 of the 1976 Code is amended by adding:
Section 39-12-10. This chapter may be known and cited as the 'South Carolina Quality Production of Manufactured Products Inspection Program Act.'
Section 39-12-20. (A) The General Assembly finds that:
(1) environmental pollution is an increasing threat to the health and well-being of the citizens of South Carolina;
(2) air, water, and soil pollutants are not localized problems, but transboundary in nature, carried by global weather patterns and ocean currents into regions that directly affect South Carolina citizens;
(3) uncontrolled and unregulated emissions from manufacturing facilities that fail to meet basic environmental standards are major contributors to transboundary pollution;
(4) these manufacturing facilities gain an unfair competitive advantage by avoiding the costs of compliance with environmental regulations and controlling emissions;
(5) unfair competitive practices also lead to increased unemployment and depressed wages for South Carolina citizens; and
(6) unemployment and depressed wages lead to significant threats to the health and well-being of the citizens of South Carolina, causing severe mental, emotional, and physical harm including anxiety, stress, depression, drug abuse, disruption of families and communities, and increased incidences of disease, crime, murder, and suicide.
(B) The General Assembly declares that the purpose of the South Carolina Quality Production of Manufactured Products Inspection Program ('program') is to ensure that a product introduced into commerce in South Carolina is produced with sufficient quality to ensure the health and well-being of the citizens of the State of South Carolina.
Section 39-12-30. As used in this chapter:
(1) 'Department' means the Department of Commerce of the State of South Carolina;
(2) 'Enforceable conditions' means a regulatory environment in which there is a reasonable likelihood that a government entity will enforce the applicable laws;
(3) 'Manufactured product' means a product produced primarily by the application of labor and capital to raw materials and other intermediate inputs, in contrast to agriculture, mining, forestry, fishing, and services;
(4) 'Originating facility' means the factory, plant, or other facility that produces manufactured products; and
(5) 'Secretary' means the Secretary of the Department of Commerce.
Section 39-12-40. It is unlawful for any manufacturer, importer, wholesaler, agent, or dealer to sell or offer or expose for sale or distribution in this State a manufactured product without complying with this chapter.
Section 39-12-50(A). Before selling or offering or exposing for sale or distribution in this State, each manufacturer, importer, wholesaler, agent, or dealer shall file for registration with the secretary a notice of origin for each manufactured product bearing a distinct name or trademark.
(B) The form for registration of the notice of origin is as prescribed by the secretary, and must require at least identification of the specific facility, or facilities, in which the product was manufactured and contact information for an authorized person at that site. The secretary may accept or substitute official documentation from other United States federal and state agencies that provide substantially similar information.
(C) A person required to submit a registration of notice of origin pursuant to this section has sixty days from the date of a change in the originating facility or facilities or authorized contact person or contact information to notify the secretary of the change.
(D) The secretary shall exempt any manufactured product to which the application of these articles would create conflict with federal inspection laws from the provisions of this chapter.
Section 39-12-60(A). In collaboration with the director of the South Carolina Department of Health and Environmental Control, the secretary shall establish minimal reasonable environmental practices that must be employed and minimal reasonable environmental standards that must be met during the production of a manufactured product by an originating facility so as to ensure the health and well-being of the citizens of the State. In establishing the minimal reasonable environmental practices and standards described, the secretary and director shall take into account the transboundary nature of pollution and develop a uniform standard for both domestic and foreign facilities.
(B) It is unreasonable for an environmental practice or standard, as prescribed pursuant to this section, to be more stringent than that required by South Carolina or federal law.
(C) A facility that is required by law to receive one or more environmental permits and is operating with all applicable environmental permits under enforceable conditions is considered to meet minimal reasonable environmental practices and standards for purposes of this chapter.
(D) International, federal, state, or local enforcement action against a facility does not create prima facie evidence that the facility is in violation of this chapter.
Section 39-12-70(A). The secretary has access to all warehouse receipts, bills of lading, other documents of title, or other documents that substantiate the notice of origin, and may make copies of all those documents for analysis.
(B) At least once each year, the secretary shall cause to be analyzed and verified the identity of the originating facility as registered pursuant to this chapter for each manufactured product that is found, sold, or offered or exposed for sale or distribution in this State.
(C)(1) The secretary may cause to be analyzed the environmental practices and standards of the originating facility for each manufactured product that is found, sold, or offered or exposed for sale or distribution in this State.
(2) The secretary may utilize information he determines to be reasonably admissible to inspect the quality of production of a manufactured product, except that the secretary may not physically inspect an originating facility for that purpose.
(D) The secretary shall publish, at least once a year in a report or bulletin, the results of the analyses of these originating facilities, together with additional information he considers advisable. If the originating facilities as analyzed by the secretary differ from the facilities identified in the notices of origin prescribed in Section 39-12-50, or if the facilities fail to meet the quality of production standards prescribed in Section 39-12-60, the secretary shall give written notice at least thirty days before publishing the results of the analysis to the manufacturer, importer, wholesaler, agent, or dealer of the product using the contact information submitted in the notice of origin. If the analysis of an originating facility does not differ substantially from the notice of origin prescribed by Section 39-12-50, or from the quality of production standards prescribed in Section 39-12-60, the manufacturer, importer, wholesaler, agent, or dealer is considered to be in compliance with the requirements of this chapter.
(E) Any manufacturer, importer, wholesaler, agent, or dealer who fails to comply with the requirements of the provisions of this chapter or any manufacturer, importer, wholesaler, agent, dealer, or person who impedes, obstructs, hinders, or otherwise prevents or attempts to prevent an inspector or other authorized agent in the performance of his duty in connection with the provisions of this chapter is guilty of a violation of this chapter, and, upon conviction, must be fined an amount determined by the secretary, not to exceed five hundred dollars for the first offense nor one thousand dollars for each subsequent offense.
(F) The secretary shall appoint inspectors and other agents as required to carry out the provisions of this chapter.
Section 39-12-80(A) If the secretary has reason to believe that a manufactured product sold, offered, or exposed for sale or distribution in this State does not comply with the requirements of this chapter, as to the registration of notice of origin or production quality of the manufactured product, the secretary, by written order, shall suspend the sale of the product until he is satisfied that the manufactured product is registered and produced with the quality as required by this chapter. If he finds that the manufactured product does not comply with this chapter, he may proceed to enforce with regard to compliance as provided further in this section.
(B) Any manufacturer, importer, wholesaler, agent, or dealer who is guilty of a violation of this chapter, the lot of manufactured products in question must be seized and withdrawn, and sold or destroyed by the secretary, and the proceeds from those sales, and any fines collected pursuant to subsection (F) or Section 39-12-70(E), must be deposited with the State Treasurer for the use of the department.
(C) A seizure and sale must be conducted by the secretary at the courthouse door of the county in which the seizure is made. If sufficient reasons appear to the secretary that another place of sale is more convenient and more desirable, that place of sale may be selected. The sale must be advertised for thirty days in a newspaper published in the county in which the seizure is made or, if a newspaper is not published in that county, then the sale must be advertised in a newspaper published in the nearest county having a newspaper. The advertisement must state the brand or name of the manufactured products, the quantity, the reason for seizure and sale, and the time and place of sale.
(D) At his discretion, the secretary may release the withdrawn products when the requirements of the provisions of this chapter have been complied with and upon payment of all the costs or expenses incurred in a proceeding connected with a seizure and withdrawal.
(E) If the secretary has knowledge of a violation of the provisions of this chapter, he shall notify immediately, in writing, the manufacturer, importer, wholesaler, agent, or dealer, using the contact information in the notice of origin, and thirty days after that, he shall notify the circuit solicitor. The circuit solicitor shall cause that violator to be prosecuted in the manner prescribed by law.
(F) Any manufacturer, importer, wholesaler, agent, or dealer who is convicted of violating this chapter or the regulations adopted by the department must be fined an amount determined by the secretary, not to exceed five hundred dollars for the first offense nor one thousand dollars for each subsequent offense.
Section 39-12-90(A)(1) Except as provided in subsection (B), a person may commence a civil action on his own behalf against:
(a) a person who is alleged to be in violation of the provisions of this chapter or of any rule, regulation, or order issued pursuant to it; or
(b) any governmental instrumentality or agency that is alleged to be in violation of this chapter to the extent permitted by the Eleventh Amendment to the Constitution of the United States; or
(c) the department to the extent permitted by the Eleventh Amendment to the Constitution of the United States where there is alleged a failure of the department to perform any nondiscretionary act or duty pursuant to this chapter.
(2) In a civil action brought pursuant to this section, the cause must be tried in the circuit court with jurisdiction over the location of the department's principal office, except that in a civil action brought against a person pursuant to item (A)(1) of this section, the cause must be tried in the circuit court of the county where the alleged violation occurred. In either case, the action must be prosecuted in the name of the real party in interest.
(B) A citizen's action must not be commenced:
(1) Pursuant to Section 39-12-90(A)(1)(a) or (A)(1)(b):
(a) unless the plaintiff has given sixty days notice in writing of the violation to the department and to any alleged violator; or
(b) if the department has commenced and is diligently prosecuting a civil action to require compliance with the provisions of this chapter, or any rule, regulation, or order issued pursuant to it. A person may intervene in the action in a court of this State as a matter of right; or
(2) Pursuant to Section 39-12-90(A)(1)(c), unless the plaintiff has given notice in writing of the action to the department in the manner as the secretary prescribes, except that this action may be brought immediately after notification if the violation or order complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff.
(C)(1) In such action pursuant to this article, the secretary, if not a party, may intervene as a matter of right.
(2) If an action is brought pursuant to this article in a court of South Carolina, the plaintiff shall serve a copy of the complaint on the Attorney General of this State and the secretary. A consent judgment must not be entered in an action in which South Carolina is not a party unless a copy of the proposed consent judgment is received at least forty-five days earlier by the Attorney General and the secretary.
(D) In issuing a final order in an action brought pursuant to this section, the court may award costs of litigation, including attorney and expert witness fees, to a party if the court determines the award is appropriate. If a temporary restraining order or preliminary injunction is sought, the court shall require the filing of a bond or equivalent security in accordance with the South Carolina Rules of Civil Procedure.
(E) This article does not restrict a right that a person or class of persons has under a statute or common law to seek enforcement of the provisions of this chapter and the regulations under it, or to seek other relief including relief against the department, as permitted by the Constitution and laws of this State."
SECTION 2. The secretary may prescribe rules and regulations necessary to carry out the intent of this program.
SECTION 3. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 4. This act takes effect upon approval by the Governor.
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