Bill 1114

                    Current Status

Bill Number:               1114
Ratification Number:       516
Act Number                 442
Introducing Body:          Senate
Subject:                   Administrative Procedures Act

(A442, R516, S1114)

AN ACT TO AMEND ACT 176 OF 1977, AS AMENDED, THE ADMINISTRATIVE PROCEDURES ACT, SO AS TO MORE SPECIFICALLY DEFINE THE RESPONSIBILITIES OF STATE AGENCIES TO GIVE NOTICE OF PROPOSED PROMULGATION OF REGULATIONS AND RECEIVE PUBLIC COMMENT THEREON, CONSOLIDATE PROVISIONS OF THE ACT RELATING TO EMERGENCY REGULATIONS, FURTHER PROVIDE FOR CHANGES IN PROPOSED REGULATIONS AFTER PUBLIC COMMENT, TO AUTHORIZE THE PUBLIC TO REQUEST THE PROMULGATION, REPEAL AND AMENDMENT OF REGULATIONS AND TO OBTAIN DECLARATORY RULINGS ON REGULATIONS, AND DELETE CERTAIN REDUNDANT PROVISIONS FROM THE PORTION OF THE ACT RELATING TO CONTESTED CASES.

Be it enacted by the General Assembly of the State of South Carolina:

Notice of rules to be published

Section 1. Section 11 of Article I of Act 176 of 1977 is amended to read:

"Section 11. (a) This section applies only to the promulgation

of regulations as defined in item (4), Section 1, of this article and is subject to the additional requirements of Section 12 of this article.

(b) Prior to the promulgation, amendment, or repeal of any regulation, an agency shall:

(1) Give at least thirty days' notice of intended action by publication of a notice in the State Register. The notice shall include either the text or a synopsis of the proposed regulation, the statutory authority for its promulgation, and the time when, the place where, and the manner in which interested persons may present their views thereon. The notice shall be mailed to all persons who have made timely requests of the agency for advance notice of proposed promulgation of regulations.

(2) Afford all interested persons reasonable opportunity to submit data, views or arguments, orally or in writing. Opportunity for oral hearing must be granted if requested by twenty-five persons, by a governmental subdivision or agency, or by an association having not less than twenty-five members. The agency shall fully consider all written and oral submissions respecting the proposed regulation.

(c) A proceeding to contest any regulation on the ground of non-compliance with the procedural requirements of this section must be commenced within one year from the effective date of the regulation."

Approval of General Assembly

Section 2. Section 12 of Article I of Act 176 of 1977, last amended by Act 188 of 1979, is further amended to read:

"Section 12. The General Assembly shall have a period of ninety days to review any regulations promulgated by any agency. To initiate the process of review, the agency shall file with the President of the Senate and the Speaker of the House of Representatives a copy of any regulations promulgated along with a request for review. Upon receipt of the request, the President and Speaker reviewing such request shall submit it for consideration to the standing committees of the Senate and House which are most concerned with the function of the promulgating agency. The ninety-day period of review shall begin on the date the regulation is filed with the President and Speaker. Sine die adjournment of the general Assembly shall toll the running of the period of review and the remainder of such period shall begin to run upon the next convening of the General Assembly excluding special sessions called by the Governor.

A regulation shall not be effective until ninety days after it has been submitted unless a joint resolution approving the regulation is adopted by the General Assembly prior to the expiration of the ninety-day period; provided, however, if the General Assembly by a joint resolution disapproves a regulation within the ninety-day period it shall not take effect.

Any member may introduce a joint resolution approving or disapproving a regulation or group of regulations thirty days following the date the regulations concerned are submitted to a standing committee for review and no committee resolution approving or disapproving such regulations has been introduced and the regulations concerned have not been withdrawn by the promulgating agency pursuant to Section 12A.

General Assembly review shall not be required for regulations promulgated to maintain compliance with federal law including but not limited to grant programs. All regulations submitted to the General Assembly for approval shall have attached thereto a brief synopsis or analysis of the regulations submitted explaining the content therein and any changes in existing regulations resulting therefrom. Such synopsis or analysis shall include citations of federal law, if any, mandating changes in such regulations. The ninety day period of review provided for in this section shall not begin to run until the synopsis or analysis is attached to regulations submitted."

Powers of committee

Section 3. Section 12A of Article I of Act 176 of 1977 added by Act 188 of 1979 is amended to read:

"Section 12A. 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 shall not prevent the introduction of a resolution disapproving one or more of a group of regulations submitted to such committee and approving others submitted at the same time or deleting a clearly separable portion of a single regulation and approving the balance thereof in the committee resolution.

If a committee determines that it cannot approve a regulation in the form submitted it may notify the promulgating agency along with its recommendations as to changes that would be necessary to obtain committee approval. The agency may thereupon:

(a) Withdraw the regulation from the committees and resubmit it with the recommended changes to the Speaker and the Lieutenant Governor;

(b) Withdraw the regulation permanently;

(c) Take no action and abide by whatever action is taken or not taken by the General Assembly on the regulation concerned.

If the agency temporarily withdraws the regulation pursuant to (a) above and resubmits it at a later date for legislative review, the General Assembly shall have an additional period in which to review and act on the regulation equal to the period between the time of its withdrawal and resubmission regardless of the date of its original submission to the Speaker and the Lieutenant Governor.

If after notification by a standing committee that it cannot approve a regulation an agency takes no action pursuant to (c) above, the ninety day period in which a regulation becomes automatically effective without General Assembly approval shall be extended from ninety to one hundred twenty days while the General Assembly is in session.

The provisions of this section, as they apply to approval, disapproval, or modification of regulations, shall 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.

When any regulation, when finally promulgated, includes a substantive change in the content of the regulation as proposed and published in the State Register, and such substantive change was not raised, considered or discussed by public comment required in Section 11, the regulation shall 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 the provisions of this article."

Emergency regulations

Section 4. Section 13 of Article I of Act 176 of 1977 is amended to read:

"Section 13. (a) If any agency finds that an imminent peril to public health, safety or welfare requires immediate promulgation of an emergency regulation prior to compliance with the procedures prescribed in this article, the agency may file the regulation with the Legislative Council along with a statement of the situation requiring immediate promulgation and such regulation shall become effective as of the time of filing; provided, however, that if emergency regulations promulgated pursuant to the provisions of this section are promulgated while the General Assembly is in session, such emergency regulations shall remain in effect for ninety days only and shall not be renewed under the provisions of this section; provided, further, however, that if emergency regulations promulgated in accordance with the provisions of this section are promulgated during a time when the General Assembly is not in session such emergency regulations may be renewable for an additional ninety days if the General Assembly is not in regular session at the expiration of the ninety day period.

(b) Emergency regulations and the agency statement as to the necessity of immediate promulgation shall be published in the next issue of the State Register following the date of filing.

(c) Any emergency regulations promulgated pursuant to this section may be permanently promulgated by complying with the requirements of this article."

Appeals

Section 5. Section 15 of Article I of Act 176 of 1977 is amended to read:

"Section 15. (a) Any person may petition an agency in writing for a declaratory ruling as to the applicability of any regulation of the agency or the authority of the agency to promulgate a particular regulation. The agency shall, within thirty days after receipt of such petition, issue a declaratory ruling thereon.

(b) After compliance with the provisions of paragraph (a) of this section, any person affected by the provisions of any regulation of an agency may petition the Circuit Court for a declaratory judgment and/or injunctive relief if it is alleged that the regulation or, its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff or that the regulation exceeds the regulatory authority of the agency. The agency shall be made a party to the action."

Persons may petition agency

Section 6. Article 1 of Act 176 of 1977, as last amended by Act 188 of 1979, is further amended by adding:

"Section 12B. An interested person may petition an agency in writing requesting the promulgation, amendment or repeal of a regulation. Within thirty days after submission of such petition, the agency shall either deny the petition in writing (stating its reasons for the denial) or shall initiate the action in such petition."

Definitions deleted

Section 7. Section 1 of Article II of Act 176 of 1977 is amended by striking item (6) which reads:

"(6) 'Rule' means each final agency statement, decision, or order in a contested case. The term includes the amendment or repeal of a prior rule, but does not include statements concerning only the internal management of any agency and not affecting private rights or procedures available to the public."

Sections repealed

Section 8. Article II of Act 176 of 1977, as amended by Act 188 of 1979, is further amended by striking Sections 7A, 7B, 7C and 7D in their entirety.

Time effective

Section 9. This act shall take effect upon approval by the Governor.