2011-2012 Bill 4575: Administrative Procedures Act - South Carolina Legislature Online

1 South Carolina General Assembly 2 119th Session, 2011-2012 3 4 H. 4575 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Reps. Atwater, Toole, Loftis, Taylor, Spires, Ballentine, Bingham, Quinn, Huggins, Owens, 10 Brannon, Bikas, J.R. Smith, Crosby, Norman, Allison, Murphy, Crawford, Daning, Delleney, Horne, 11 Lucas, McCoy, D.C. Moss, Pope, Putnam, Simrill, G.M. Smith, Sottile, Tallon, Thayer, Young, 12 V.S. Moss, Clemmons, Bannister, Hamilton, Bedingfield, Willis, Stringer, Ryan, Corbin, Long, Patrick 13 and Henderson 14 Document Path: l:\council\bills\agm\19362ab12.docx 15 16 Introduced in the House on January 11, 2012 17 Currently residing in the House Committee on Judiciary 18 19 Summary: Administrative Procedures Act 20 21 22 HISTORY OF LEGISLATIVE ACTIONS 23 24 Date Body Action Description with journal page number 25 1/11/2012 House Introduced and read first time 26 1/11/2012 House Referred to Committee on Judiciary 27 1/17/2012 House Member(s) request name added as sponsor: Thayer 28 1/18/2012 House Member(s) request name added as sponsor: Young 29 1/26/2012 House Member(s) request name added as sponsor: V.S.Moss 30 2/29/2012 House Member(s) request name added as sponsor: Clemmons, Bannister, Hamilton, 31 Bedingfield, Willis, Stringer, Ryan, Corbin, Long, Patrick, Henderson 32 33 34 VERSIONS OF THIS BILL 35 36 1/11/2012 37 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 12 1976, BY ADDING SECTION 123138 SO AS TO PROVIDE A 13 REGULATION PROMULGATED UNDER THE 14 ADMINISTRATIVE PROCEDURES ACT EXPIRES FIVE 15 YEARS FROM THE DATE ON WHICH IT BECOMES 16 EFFECTIVE; TO AMEND SECTION 123120, AS AMENDED, 17 RELATING TO THE APPROVAL OF REGULATIONS, SO AS 18 TO DELETE LANGUAGE REQUIRING A STATE AGENCY 19 TO PERIODICALLY REVIEW REGULATIONS IT 20 PROMULGATES. 21 22 Be it enacted by the General Assembly of the State of South 23 Carolina: 24 25 SECTION 1. Article 1, Chapter 23, Title 1 of the 1976 Code is 26 amended by adding: 27 28 “Section 123138. A regulation promulgated under this article 29 expires five years from the date on which it becomes effective.” 30 31 SECTION 2. Section 123120 of the 1976 Code, as last amended 32 by Act 33 of 2011, is further amended to read: 33 34 “Section 123120. (A) All regulations except those specifically 35 exempted pursuant to subsection (H) must be filed with Legislative 36 Council for submission to the General Assembly for review in 37 accordance with this article; however, a regulation must not be 38 filed with Legislative Council for submission to the General 39 Assembly more than one year after publication of the drafting 40 notice initiating the regulation pursuant to Section 123110, except 41 those regulations requiring a final assessment report as provided in 42 Sections 123270 and 123280.

[4575] 2 1 (B) To initiate the process of review, the agency shall file with 2 the Legislative Council for submission to the President of the 3 Senate and the Speaker of the House of Representatives a 4 document containing: 5 (1) a copy of the regulations promulgated; 6 (2) in the case of regulations proposing to amend an existing 7 regulation or any clearly identifiable subdivision or portion of a 8 regulation, the full text of the existing regulation or the text of the 9 identifiable portion of the regulation; text that is proposed to be 10 deleted must be stricken through, and text that is proposed to be 11 added must be underlined; 12 (3) a request for review; 13 (4) a brief synopsis of the regulations submitted which 14 explains the content and any changes in existing regulations 15 resulting from the submitted regulations; 16 (5) a copy of the final assessment report and the summary of 17 the final report prepared by the division pursuant to Section 18 123115. A regulation that does not require an assessment report 19 because the regulation does not have a substantial economic 20 impact must include a statement to that effect. A regulation 21 exempt from filing an assessment report pursuant to Section 22 123115(E) must include an explanation of the exemption; 23 (6) a copy of the fiscal impact statement prepared by the 24 agency as required by Section 123110; 25 (7) a detailed statement of rationale which states the basis 26 for the regulation, including the scientific or technical basis, if any, 27 and identifies any studies, reports, policies, or statements of 28 professional judgment or administrative need relied upon in 29 developing the regulation; 30 (8) a copy of the economic impact statement, as provided in 31 Section 123270(C)(1)(a); and 32 (9) a copy of the regulatory flexibility analysis, as provided 33 in Section 123270(C)(1)(b). 34 (C) Upon receipt of the regulation, the President and Speaker 35 shall refer the regulation for review to the standing committees of 36 the Senate and House which are most concerned with the function 37 of the promulgating agency. A copy of the regulation or a 38 synopsis of the regulation must be given to each member of the 39 committee, and Legislative Council shall notify all members of the 40 General Assembly when regulations are submitted for review 41 either through electronic means or by addition of this information 42 to the website maintained by Legislative Printing Information and 43 Technology Services, or both. The committees to which

[4575] 3 1 regulations are referred have one hundred twenty days from the 2 date regulations are submitted to the General Assembly to consider 3 and take action on these regulations. However, if a regulation is 4 referred to a committee and no action occurs in that committee on 5 the regulation within sixty calendar days of receipt of the 6 regulation, the regulation must be placed on the agenda of the full 7 committee beginning with the next scheduled full committee 8 meeting. 9 (D) If a joint resolution to approve a regulation is not enacted 10 within one hundred twenty days after the regulation is submitted to 11 the General Assembly or if a joint resolution to disapprove a 12 regulation has not been introduced by a standing committee to 13 which the regulation was referred for review, the regulation is 14 effective upon publication in the State Register. Upon 15 introduction of the first joint resolution disapproving a regulation 16 by a standing committee to which the regulation was referred for 17 review, the onehundredtwentyday period for automatic approval is 18 tolled. A regulation may not be filed under the emergency 19 provisions of Section 123130 if a joint resolution to disapprove the 20 regulation has been introduced by a standing committee to which 21 the regulation was referred. Upon a negative vote by either the 22 Senate or House of Representatives on the resolution disapproving 23 the regulation and the notification in writing of the negative vote to 24 the Speaker of the House of Representatives and the President of 25 the Senate by the Clerk of the House in which the negative vote 26 occurred, the remainder of the period begins to run. If the 27 remainder of the period is less than ninety days, additional days 28 must be added to the remainder to equal ninety days. The 29 introduction of a joint resolution by the committee of either house 30 does not prevent the introduction of a joint resolution by the 31 committee of the other house to either approve or disapprove the 32 regulations concerned. A joint resolution approving or 33 disapproving a regulation must include: 34 (1) the synopsis of the regulation as required by subsection 35 (B)(4); 36 (2) the summary of the final assessment report prepared by 37 the division pursuant to Section 123115 or, as required by 38 subsection (B)(5), the statement or explanation that an assessment 39 report is not required or is exempt. 40 (E) The onehundredtwentyday period of review begins on the 41 date the regulation is filed with the President and Speaker. Sine 42 die adjournment of the General Assembly tolls the running of the 43 period of review, and the remainder of the period begins to run

[4575] 4 1 upon the next convening of the General Assembly excluding 2 special sessions called by the Governor. 3 (F) Any member of the General Assembly may introduce a 4 joint resolution approving or disapproving a regulation thirty days 5 following the date the regulations concerned are referred to a 6 standing committee for review and no committee joint resolution 7 approving or disapproving the regulations has been introduced and 8 the regulations concerned have not been withdrawn by the 9 promulgating agency pursuant to Section 123125, but the 10 introduction does not toll the onehundredtwentyday period of 11 automatic approval. 12 (G) A regulation is deemed withdrawn if it has not become 13 effective, as provided in this article, by the date of publication of 14 the next State Register published after the end of the twoyear 15 session in which the regulation was submitted to the President and 16 Speaker for review. Other provisions of this article 17 notwithstanding, a regulation deemed withdrawn pursuant to this 18 subsection may be resubmitted by the agency for legislative review 19 during the next legislative session without repeating the 20 requirements of Section 123110, 123111, or 123115 if the 21 resubmitted regulation contains no substantive changes for the 22 previously submitted version. 23 (H) General Assembly review is not required for regulations 24 promulgated: 25 (1) to maintain compliance with federal law including, but 26 not limited to, grant programs; however, the synopsis of the 27 regulation required to be submitted by subsection (B)(4) must 28 include citations to federal law, if any, mandating the 29 promulgation of or changes in the regulation justifying this 30 exemption. If the underlying federal law which constituted the 31 basis for the exemption of a regulation from General Assembly 32 review pursuant to this item is vacated, repealed, or otherwise does 33 not have the force and effect of law, the state regulation is deemed 34 repealed and without legal force and effect as of the date the 35 promulgating state agency publishes notice in the State Register 36 that the regulation is deemed repealed. The agency must publish 37 the notice in the State Register no later than sixty days from the 38 effective date the underlying federal law was rendered without 39 legal force and effect. Upon publication of the notice, the prior 40 version of the state regulation, if any, is reinstated and effective as 41 a matter of law. The notice published in the State Register shall 42 identify the specific provisions of the state regulation that are 43 repealed as a result of the invalidity of the underlying federal law

[4575] 5 1 and shall provide the text of the prior regulation, if any, which is 2 reinstated. The agency may promulgate additional amendments to 3 the regulation by complying with the applicable requirements of 4 this chapter; 5 (2) by the State Board of Financial Institutions in order to 6 authorize statechartered banks, statechartered savings and loan 7 associations, and statechartered credit unions to engage in 8 activities that are authorized pursuant to Section 341110; 9 (3) by the South Carolina Department of Revenue to adopt 10 regulations, revenue rulings, revenue procedures, and technical 11 advice memoranda of the Internal Revenue Service so as to 12 maintain conformity with the Internal Revenue Code as defined in 13 Section 12640; 14 (4) as emergency regulations under Section 123130. 15 (I) For purposes of this section, only those calendar days 16 occurring during a session of the General Assembly, excluding 17 special sessions, are included in computing the days elapsed. 18 (J) Each state agency, which promulgates regulations or to 19 which the responsibility for administering regulations has been 20 transferred, shall by July 1, 1997, and every five years thereafter, 21 conduct a formal review of all regulations which it has 22 promulgated or for which it has been transferred the responsibility 23 of administering, except that those regulations described in 24 subsection (H) are not subject to this review. Upon completion of 25 the review, the agency shall submit to the Code Commissioner a 26 report which identifies those regulations: 27 (1) for which the agency intends to begin the process of 28 repeal in accordance with this article; 29 (2) for which the agency intends to begin the process of 30 amendment in accordance with this article; and 31 (3) which do not require repeal or amendment. 32 Nothing in this subsection may be construed to prevent an 33 agency from repealing or amending a regulation in accordance 34 with this article before or after it is identified in the report to the 35 Code Commissioner.” 36 37 SECTION 3. This act takes effect upon approval by the 38 Governor. 39 XX 40

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