Indicates Matter Stricken
Indicates New Matter
The Senate assembled at 10:00 A.M., the hour to which it stood adjourned and was called to order by the PRESIDENT.
A quorum being present the proceedings were opened with a devotion by the Chaplain as follows:
Beloved, as we come to the final hours of this session of our General Assembly, receive a Benediction that has come down through the years:
"May the defense of the Most High
Be above and beneath you,
Around and within you,
In your going out and in
your coming in,
In your rising up
and in your going down,
All your days and all your
nights,
Until the DAWN when the Son of
Righteousness shall arise
With healing in His wings for
the people of the world"
By the grace of the God of us all!
Amen!
The PRESIDENT called for Petitions, Memorials, Presentments of Grand Juries and such like papers.
May 18, 1995
Mr. President and Members of the Senate:
I am transmitting herewith an appointment for confirmation. This appointment is made with the "advice and consent of the Senate," and is, therefore, submitted for your consideration.
Respectfully,
David M. Beasley
Reappointment, Dorchester County Voter Registration Board, with term to commence March 15, 1994, and to expire March 15, 1996:
Ms. Martha H. Hollis, 113 Pelican Street, Ladson, S.C. 29456
May 23, 1995
Mr. President and Members of the Senate:
I am transmitting herewith appointments for confirmation. These appointments are made with the "advice and consent of the Senate," and are, therefore, submitted for your consideration.
Respectfully,
David M. Beasley
Reappointments, Dorchester County Voter Registration Board, with terms to commence March 15, 1994, and to expire March 15, 1996:
Mr. Harry J. Limehouse, Post Office Box 142, Summerville, S.C. 29484
Mr. Raymond L. Garvin, Post Office Box 657, St. George, S.C. 29477
May 24, 1995
Mr. President and Members of the Senate:
I am transmitting herewith appointments for confirmation. These appointments are made with the "advice and consent of the Senate," and are, therefore, submitted for your consideration.
Respectfully,
David M. Beasley
Initial Appointment, Anderson County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:
Honorable James A. Cox, 208 Mills Street, West Pelzer, S.C. 29669 VICE John W. Rogers (retired)
Reappointments, Dorchester County Magistrates, with terms to commence April 30, 1995, and to expire April 30, 1999:
Honorable Victor Glenn Stephens, 127 Bishopville Road, St. George, S.C. 29477
Honorable Charlene C. Snowden, 304 Woodland Drive, Summerville, S.C. 29485
May 25, 1995
Mr. President and Members of the Senate:
I am transmitting herewith appointments for confirmation. These appointments are made with the "advice and consent of the Senate," and are, therefore, submitted for your consideration.
Respectfully,
David M. Beasley
Initial Appointment, Dorchester County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:
Mr. Raymond McMillan, 304 Hudson Road, St. George, S.C. 29477 VICE Cranston Pinckney (retired)
Reappointment, Dorchester County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:
Honorable Rodney W. Profit, 219 Towhee Drive, Summerville, S.C. 29485
Reappointments, Spartanburg County Magistrates, with terms to commence April 30, 1995, and to expire April 30, 1999:
Honorable James B. Paslay, 803 Lucerne Drive, Spartanburg, S.C. 29302
Honorable Robert B. Hall, 151 Oakwood Drive, Woodruff, S.C. 29388
Honorable Georgia V. Anderson, 204 South Fairview Avenue, Spartanburg, S.C. 29302
Honorable James Freeman Ashmore, 302 Five Oaks Drive, Landrum, S.C. 29356
May 26, 1995
Mr. President and Members of the Senate:
I am transmitting herewith appointments for confirmation. These appointments are made with the "advice and consent of the Senate," and are, therefore, submitted for your consideration.
Respectfully,
David M. Beasley
Initial Appointment, Spartanburg County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:
Honorable Carolyn B. Waddell, 155 Brewton Road, Moore, S.C. 29369 VICE Rubye K. Calhoun
Reappointments, Spartanburg County Magistrates, with terms to commence April 30, 1995, and to expire April 30, 1999:
Honorable Eber Charles Gowan, Jr., Post Office Box 37, Reidville, S.C. 29375
Honorable Edward H. Overcash, Jr., 166 Gordon Drive, Spartanburg, S.C. 29301
Honorable Kenneth H. Dover, Post Office Box 642, Inman, S.C. 29349
Honorable Joseph T. Petty, Post Office Box 128, Landrum, S.C. 29356
Honorable Vicki Rae M. Smith, 1074 Cross Anchor Road, Woodruff, S.C. 29388
May 29, 1995
Mr. President and Members of the Senate:
I am transmitting herewith an appointment for confirmation. This appointment is made with the "advice and consent of the Senate," and is, therefore, submitted for your consideration.
Respectfully,
David M. Beasley
Reappointment, Dorchester County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:
Honorable Troy Guerard Knight, Post Office Box 1372, Summerville, S.C. 29484
June 1, 1995
Mr. President and Members of the Senate:
I am transmitting herewith appointments for confirmation. These appointments are made with the "advice and consent of the Senate," and are, therefore, submitted for your consideration.
Respectfully,
David M. Beasley
Initial Appointment, Dillon County Magistrate, with term to commence April 30, 1994, and to expire April 30, 1998:
Honorable John R. Davis, Post Office Box 306, Latta, S.C. 29565 VICE Robert J. McBryde, Jr.
Initial Appointment, York County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:
Mr. W. Thomas Massey, 5667 Chadwick Court, Rock Hill, S.C. 29732 VICE Frederick G. McCrorey
Reappointment, Fairfield County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:
Honorable Ernestine M. Rabb, Route 1, Box 148, Jenkinsville, S.C. 29065
Initial Appointment, Dorchester County Voter Registration Board, with term to commence March 15, 1994, and to expire March 15, 1996:
At-Large:
Mr. Eric Britt, Apartment C-8, 1225 Boone Hill Road, Summerville, S.C. 29483 VICE Jacqueline K. Knight
Reappointment, Dorchester County Voter Registration Board, with term to commence March 15, 1994, and to expire March 15, 1996:
Mr. Orion P.D. Canant, 133 Axtell Drive, Summerville, S.C. 29485
Initial Appointment, Dorchester County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:
Mr. Larry R. Kennedy, 9 Hummingbird Lane, Summerville, S.C. 29483 VICE Joseph Whitney Cunningham
Initial Appointment, Horry County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:
Mr. G. Derek Blanton, 201-L 1356 Glenn's Bay Road, Surfside Beach, S.C. 29575 VICE Carolyn R. Hills
Reappointments, Horry County Magistrates, with terms to commence April 30, 1995, and to expire April 30, 1999:
Honorable Rebecca S. Lovelace, 503 Lakewood Avenue, Conway, S.C. 29526
Honorable Tillmond E. Williams, 3880 Tillmond Drive, Conway, S.C. 29526
Honorable Dennis Earl Phipps, 1201 21st Avenue North, Myrtle Beach, S.C. 29577
Initial Appointments, Spartanburg County Magistrates, with terms to commence April 30, 1995, and to expire April 30, 1999:
Mr. Harold W. Pryor, 1257 Boiling Springs Road, Spartanburg, S.C. 29303 VICE Larry M. Hutchins
Mr. Larry Madison Hutchins, 767 California Avenue, Spartanburg, S.C. 29303 VICE William Andrew Hughes
Honorable Donnie Blackley, 236 St. Matthews Lane, Spartanburg, S.C. 29301 VICE Warren H. Sullivan
Reappointments, Richland County Magistrates, with terms to commence April 30, 1995, and to expire April 30, 1999:
Honorable Donald Jeffrey Simons, Post Office Box 762, Eastover, S.C. 29044
Honorable Clemon L. Stocker, 135 American Avenue, Hopkins, S.C. 29061
H. 4037 -- Rep. Boan: A BILL TO AMEND SECTION 1-11-720, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO ENTITIES WHOSE EMPLOYEES AND RETIREES ARE ELIGIBLE FOR STATE HEALTH AND DENTAL INSURANCE PLANS, SO AS TO ADD FORMER COUNTY COUNCIL MEMBERS WHO SERVED AT LEAST TWELVE YEARS ON COUNTY COUNCIL AND TO REQUIRE THESE MEMBERS TO PAY THE EMPLOYER AND EMPLOYEE CONTRIBUTIONS UNDER THE PLAN.
Senator DRUMMOND asked unanimous consent to make a motion to recall the Bill from the Committee on Finance.
There was no objection.
The Senate proceeded to a consideration of the Bill. The question being the second reading of the Bill.
The Bill was read the second time and ordered placed on the third reading Calendar with notice of general amendments.
Senator ROSE introduced Dr. Bill Edwards of Charleston, S.C., Doctor of the Day.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it insists upon the amendments proposed by the House to:
S. 126 -- Senators Land and Washington: A BILL TO AMEND SECTION 9-8-110(2), CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PAYMENTS ON THE DEATH OF A MEMBER OR BENEFICIARY OF THE RETIREMENT SYSTEM FOR JUDGES AND SOLICITORS, SO AS TO DELETE THE PROVISION TERMINATING BENEFITS PAID TO THE SURVIVING SPOUSE OF A MEMBER ON HER REMARRIAGE.
asks for a Committee of Conference, and has appointed Reps. Marchbanks, P. Harris and Carnell of the committee on the part of the House.
Very respectfully,
Speaker of the House
Whereupon, the PRESIDENT appointed Senators LAND, MESCHER and SALEEBY of the Committee of Conference on the part of the Senate and a message was sent to the House accordingly.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it concurs in the amendments proposed by the Senate to:
H. 4018 -- Rep. Cato: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 41-16-75 SO AS TO PROHIBIT A SPECIAL INSPECTOR FROM PERFORMING ELEVATOR INSPECTIONS UNDER CERTAIN CIRCUMSTANCES.
and has ordered the Bill Enrolled for Ratification.
Very respectfully,
Speaker of the House
Received as information.
The following were introduced:
S. 903 -- Senator Rankin: A BILL TO AMEND CHAPTER 37, TITLE 12, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ASSESSMENT OF PROPERTY TAXES, BY ADDING ARTICLE 4, "THE HOMESTEAD PROPERTY TAX DEFERRAL FOR THE ELDERLY ACT", WHICH ALLOWS ELDERLY INDIVIDUALS ENTITLED TO THE HOMESTEAD PROPERTY TAX EXEMPTION TO DEFER ALL OR PART OF AD VALOREM TAXES LEVIED ON THE HOMESTEAD BY FILING AN ANNUAL APPLICATION.
Read the first time and referred to the Committee on Finance.
S. 904 -- Senators McConnell and Giese: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 44-69-35 SO AS TO REQUIRE A PERSON SEEKING A HOME HEALTH LICENSE OR EMPLOYMENT WITH A HOME HEALTH AGENCY TO UNDERGO A STATE LAW ENFORCEMENT DIVISION AND FEDERAL BUREAU OF INVESTIGATION FINGERPRINT REVIEW AND TO PROHIBIT ISSUANCE OF A LICENSE TO OR EMPLOYING A PERSON WHO HAS BEEN CONVICTED OF CERTAIN CRIMES.
Read the first time and referred to the Committee on Medical Affairs.
S. 905 -- Senators Jackson, Alexander, Boan, Bryan, Cork, Courson, Courtney, Drummond, Elliott, Ford, Giese, Glover, Gregory, Hayes, Holland, Land, Lander, Leatherman, Leventis, Martin, Matthews, McConnell, McGill, Mescher, Moore, O'Dell, Passailaigue, Patterson, Peeler, Rankin, Reese, Richter, Rose, Russell, Ryberg, Saleeby, Setzler, Short, Greg Smith, J. Verne Smith, Stilwell, Thomas, Waldrep, Washington, Williams and Wilson: A SENATE RESOLUTION TO RECOGNIZE AND COMMEMORATE MR. FRANKLIN GOODWIN FOR TWENTY-ONE YEARS OF SERVICE TO THE PEOPLE AND SENATE OF SOUTH CAROLINA AS SENATE PORTER AND TO DIRECT THE PLACEMENT OF AN HONORARY PLACQUE IN THE SENATE CLOAK ROOM FOLLOWING THE COMPLETION OF STATE HOUSE RENOVATIONS.
Whereas, beginning on January 7, 1974, and continuing for the next twenty-one years, Mr. Franklin Goodwin, known to us as "Mr. Frank", has faithfully and admirably served the South Carolina Senate as Senate Porter; and
Whereas, Mr. Frank has demonstrated unflagging loyalty and unselfish service to the South Carolina Senate and the people of this State; and
Whereas, Mr. Frank is known to each member of the Senate for his warm and charming personality; and
Whereas, it is the unanimous opinion of the Senate that Frank Goodwin provides the role model of which every state employee should pattern their conduct and service; and
Whereas, the members of the South Carolina Senate want him to know that his character, spirit and gentle personality have added greatly to the hallowed halls of the Senate. Now, therefore,
Be it resolved by the Senate:
That in recognition of Mr. Frank Goodwin's twenty-one years of service as Senate Porter, the Clerk of the Senate is directed to place a placque in his honor in the Senate Cloak Room following completion of State House renovations.
Be it further resolved that a copy of this resolution be forwarded to Mr. Franklin Goodwin.
The Senate Resolution was adopted.
S. 906 -- Senator Land: A BILL TO PROVIDE THAT THE SUPERINTENDENT OF ANY SCHOOL DISTRICT LOCATED IN CLARENDON COUNTY SERVING AS AN EX OFFICIO MEMBER OF A VOCATIONAL SCHOOL BOARD SHALL SERVE AS A VOTING MEMBER OF SUCH BOARD.
Read the first time and ordered placed on the local and uncontested Calendar without reference.
On motion of Senator LAND, S. 906 was ordered to receive a second and third reading on the next two consecutive legislative days.
S. 907 -- Senators Land and Leventis: A SENATE RESOLUTION EXPRESSING SORROW AT THE DEATH OF WORTHAM W. DIBBLE OF SUMTER COUNTY, PIONEER IN DEVELOPMENT AND MODERN PROPERTY TAX PLANNING, AND EXTENDING SYMPATHY TO HIS FAMILY AND MANY FRIENDS.
The Senate Resolution was adopted.
H. 4292 -- Rep. Harvin: A CONCURRENT RESOLUTION EXPRESSING SORROW AT THE DEATH OF HAROLD C. MORRIS OF SUMMERTON AND EXTENDING SYMPATHY TO HIS FAMILY AND MANY FRIENDS.
The Concurrent Resolution was adopted, ordered returned to the House.
H. 3961 -- Reps. Wilkins, Harrison, D. Smith, Huff, Cromer, Fulmer, Wells, Meacham, Cotty, Witherspoon, Wright, Tripp, H. Brown, Sharpe, Sandifer, Cain, Fair, Rice, Fleming, Mason, A. Young, Kelley, Herdklotz, Seithel, Riser, Haskins, Simrill, Keegan, Trotter, Hutson, R. Smith, Marchbanks, Harrell, Stuart, Klauber, Waldrop and Davenport: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 6 TO TITLE 14 SO AS TO CREATE THE JUDICIAL MERIT SELECTION COMMISSION AND TO ESTABLISH ITS POWERS, DUTIES, AND FUNCTIONS; TO AMEND SECTIONS 1-23-510, 1-23-520, 1-23-525, 1-23-530, AND 1-23-550, RELATING TO JUDGES OF THE ADMINISTRATIVE LAW JUDGE DIVISION, SO AS TO PROVIDE THAT THESE JUDGES MUST BE APPOINTED BY THE GOVERNOR FROM A LIST OF NOMINEES SUBMITTED BY THE JUDICIAL MERIT SELECTION COMMISSION; 2-19-10, RELATING TO THE JOINT LEGISLATIVE COMMITTEE TO REVIEW CANDIDATES, SO AS TO DELETE PROVISIONS ON ELECTING THE MEMBERS OF THE JUDICIARY; 14-1-215, AS AMENDED, RELATING TO RETIRED JUDGES OR JUSTICES PRESIDING IN CERTAIN COURTS, SO AS TO FURTHER PROVIDE FOR THE MANNER AND CONDITIONS OF THIS SERVICE; 14-3-10, RELATING TO THE COMPOSITION OF THE SUPREME COURT, SO AS TO PROVIDE THAT THE JUSTICES THEREOF SHALL BE APPOINTED BY THE GOVERNOR IN THE MANNER PROVIDED ABOVE INSTEAD OF ELECTED BY THE GENERAL ASSEMBLY; 14-3-20, RELATING TO THE QUALIFICATIONS OF JUSTICES TO THE SUPREME COURT, SO AS TO PROVIDE FOR THEIR APPOINTMENT BY THE GOVERNOR INSTEAD OF ELECTION BY THE GENERAL ASSEMBLY; 14-3-40, RELATING TO THE VACANCIES IN THE SUPREME COURT, SO AS TO PROVIDE FOR APPOINTMENTS TO FILL A VACANCY; 14-5-110, RELATING TO THE QUALIFICATIONS OF CIRCUIT COURT JUDGES, SO AS TO REFER TO THEIR APPOINTMENT RATHER THAN THEIR ELECTION; 14-5-160, RELATING TO THE ASSIGNMENT OF A JUDGE TO FILL A VACANCY, SO AS TO PROVIDE THE PROCEDURE TO FILL A VACANCY; 14-5-610, AS AMENDED, RELATING TO JUDICIAL CIRCUITS AND ELECTION OF JUDGES, SO AS TO PROVIDE FOR THEIR APPOINTMENT BY THE GOVERNOR; 14-8-20, RELATING TO THE ELECTION OF JUDGES OF THE COURT OF APPEALS, SO AS TO PROVIDE FOR THEIR APPOINTMENT BY THE GOVERNOR; 14-8-30, RELATING TO THE QUALIFICATIONS OF JUDGES OF THE COURT OF APPEALS, SO AS TO PROVIDE FOR APPOINTMENT BY THE GOVERNOR; 14-8-40, RELATING TO THE OATH OF OFFICE OF JUDGES OF THE COURT OF APPEALS, SO AS TO PROVIDE FOR THEIR APPOINTMENT BY THE GOVERNOR; 14-8-60, RELATING TO THE VACANCIES ON THE COURT OF APPEALS, SO AS TO PROVIDE FOR THE PROCEDURE TO FILL A VACANCY; 20-7-1370, AS AMENDED, RELATING TO THE QUALIFICATIONS AND TERMS OF FAMILY COURT JUDGES, SO AS TO PROVIDE FOR THEIR APPOINTMENT BY THE GOVERNOR; 20-7-1410, RELATING TO THE INITIAL ELECTION OF FAMILY COURT JUDGES, SO AS TO PROVIDE FOR THEIR APPOINTMENT BY THE GOVERNOR; TO REPEAL SECTIONS 2-19-70 AND 2-19-80, RELATING TO THE PROHIBITION AGAINST PLEDGING AND REOPENING OF FILING WHERE INCUMBENT JUDGES WITHDRAW, DIE, OR ARE FOUND NOT QUALIFIED, RESPECTIVELY; AND TO PROVIDE THAT THE ABOVE PROVISIONS TAKE EFFECT UPON RATIFICATION OF AN AMENDMENT TO ARTICLE V OF THE CONSTITUTION OF THIS STATE ESTABLISHING THE JUDICIAL MERIT SELECTION COMMISSION TO ASSIST THE GOVERNOR IN APPOINTING JUDGES FOR THE ABOVE-REFERENCED COURTS.
Read the first time and referred to the Committee on Judiciary.
H. 3962 -- Reps. Wilkins, Harrison, D. Smith, Huff, Wells, Witherspoon, H. Brown, Sharpe, Meacham, Fulmer, Fleming, Mason, Wright, A. Young, Keegan, Cain, Tripp, Rice, Riser, Herdklotz, Seithel, Kelley, Trotter, Haskins, Simrill, Hutson, Wofford, Marchbanks, Cotty, Fair, R. Smith, Harrell, Stuart, Klauber, Walker and Sandifer: A JOINT RESOLUTION PROPOSING AN AMENDMENT TO SECTION 3, ARTICLE V OF THE CONSTITUTION OF SOUTH CAROLINA, 1895, RELATING TO THE SUPREME COURT; SECTION 8, ARTICLE V, RELATING TO THE COURT OF APPEALS; SECTION 13, ARTICLE V, RELATING TO THE JUDICIAL CIRCUITS AND THE COURTS THEREOF; SECTION 17, ARTICLE V, RELATING TO THE REMOVAL OR RETIREMENT OF JUDGES OF THE UNIFIED COURT SYSTEM; AND SECTION 18, ARTICLE V, RELATING TO VACANCIES IN THE SUPREME COURT, COURT OF APPEALS, AND THE CIRCUIT COURT, SO AS TO PROVIDE THAT JUDGES OF THESE COURTS MUST BE APPOINTED BY THE GOVERNOR FROM A LIST OF NOMINEES SUBMITTED BY THE SOUTH CAROLINA JUDICIAL MERIT SELECTION COMMISSION; AND TO AMEND ARTICLE V OF THE CONSTITUTION OF THIS STATE RELATING TO THE JUDICIAL DEPARTMENT BY ADDING SECTION 27 SO AS TO ESTABLISH THE SOUTH CAROLINA JUDICIAL MERIT SELECTION COMMISSION TO NOMINATE CANDIDATES FOR THE ABOVE JUDICIAL OFFICES AND FOR JUDGES OF OTHER COURTS OF UNIFORM JURISDICTION AS THE GENERAL ASSEMBLY MAY PROVIDE BY LAW.
Read the first time and referred to the Committee on Judiciary.
Senator COURSON from the Committee on Invitations polled out H. 4270 favorable:
H. 4270 -- Rep. Rogers: A CONCURRENT RESOLUTION TO PROCLAIM THE WEEK OF NOVEMBER 12-18, 1995, AMERICAN EDUCATION WEEK, AND WEDNESDAY, NOVEMBER 15, 1995, AS EDUCATIONAL SUPPORT DAY.
Courson Peeler Wilson Matthews Thomas Patterson Stilwell Passailaigue
NAYS
TOTAL--0
NOT VOTING
Russell O'Dell Rose
Adopted
H. 4270
The Concurrent Resolution was adopted, ordered returned to the House.
S. 463 -- Senator Passailaigue: A BILL TO AMEND SECTIONS 38-55-310 AND 38-55-330, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE BUSINESS OF INSURANCE, SO AS TO PROVIDE THAT LICENSED FUNERAL DIRECTORS EMPLOYED BY LICENSED FUNERAL HOMES MAY ACT AS AGENTS FOR LIFE INSURERS ONLY IN CONNECTION WITH PRENEED FUNERAL CONTRACTS; TO AMEND SECTION 32-7-25 OF THE 1976 CODE, RELATING TO PRENEED FUNERAL CONTRACTS, SO AS TO FURTHER REGULATE PRENEED FUNERAL CONTRACT AGREEMENTS; AND TO AMEND CHAPTER 7, TITLE 32 OF THE 1976 CODE, BY ADDING SECTION 32-7-95 SO AS TO PROVIDE THAT LICENSED FUNERAL DIRECTORS ARE SUBJECT TO THE PROHIBITIONS AGAINST SOLICITATION AND ADVERTISEMENT WHEN ACTING AS AN AGENT FOR A LIFE INSURER.
The House returned the Bill with amendments.
On motion of Senator MARTIN, the Senate concurred in the House amendments and a message was sent to the House accordingly. Ordered that the title be changed to that of an Act and the Act enrolled for Ratification.
S. 900 -- Senators O'Dell and Waldrep: A CONCURRENT RESOLUTION CONGRATULATING CRESCENT HIGH SCHOOL GIRLS' SOFTBALL TEAM OF IVA, SOUTH CAROLINA, UPON RECOGNITION AS THE 1995 AA STATE CHAMPIONS.
Returned with concurrence.
Received as information.
S. 901 -- Senator Gregory: A CONCURRENT RESOLUTION RECOGNIZING MRS. VIRGINIA PADGETT BIGGERSTAFF OF LANCASTER COUNTY UPON THE OCCASION OF HER RETIREMENT AFTER A THIRTY-YEAR TEACHING CAREER AND EXTENDING BEST WISHES FOR A LONG AND FULFILLING RETIREMENT.
Returned with concurrence.
Received as information.
S. 902 -- Senators Richter, McConnell, Matthews, Passailaigue, Rose, Washington, Ford, Mescher and Greg Smith: A CONCURRENT RESOLUTION TO HONOR THE BELOVED CAROLYN HEYMAN GOODSTEIN OF CHARLESTON ON THE OCCASION OF HER EIGHTY-FIFTH BIRTHDAY AND TO CELEBRATE HER RICH AND FULL LIFE AND WISH HER A FUTURE FULL OF GOOD HEALTH AND THE CONTINUED ENJOYMENT OF A LOVING AND DEVOTED FAMILY.
Returned with concurrence.
Received as information.
S. 126 -- Senators Land and Washington: A BILL TO AMEND SECTION 9-8-110(2), CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PAYMENTS ON THE DEATH OF A MEMBER OR BENEFICIARY OF THE RETIREMENT SYSTEM FOR JUDGES AND SOLICITORS, SO AS TO DELETE THE PROVISION TERMINATING BENEFITS PAID TO THE SURVIVING SPOUSE OF A MEMBER ON HER REMARRIAGE.
The House returned the Bill with amendments.
Senator LAND explained the amendments.
On motion of Senator LAND, the Senate nonconcurred in the House amendments and a message was sent to the House accordingly.
THE SENATE PROCEEDED TO A CALL OF THE UNCONTESTED LOCAL AND STATEWIDE CALENDAR.
The following Bills were read the third time and having received three readings in both Houses, it was ordered that the titles be changed to that of Acts and enrolled for Ratification:
H. 4198 -- Reps. Koon, Gamble, Knotts, Wright, Stuart and Riser: A BILL TO AMEND SECTION 7-7-380, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO VOTING PRECINCTS IN LEXINGTON COUNTY, SO AS TO REDESIGNATE THE PRECINCTS.
H. 4203 -- Reps. Stille, Carnell, McAbee and Townsend: A BILL TO AMEND SECTION 7-7-30, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO VOTING PRECINCTS IN ABBEVILLE COUNTY, SO AS TO REDESIGNATE THE PRECINCTS.
(By prior motion of Senator O'DELL)
H. 3639 -- Reps. Harrison, Jennings, Harwell, Shissias, Klauber and Knotts: A BILL TO AMEND SECTION 20-7-420, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE JURISDICTION OF THE FAMILY COURT IN DOMESTIC MATTERS, SO AS TO PERMIT COURT-MANDATED MEDIATION AS WELL AS CONSENSUAL MEDIATION IN THE FAMILY COURTS.
Senator STILWELL asked unanimous consent to take the Bill up for immediate consideration.
There was no objection.
Senator STILWELL asked to withdraw the previously proposed amendment which was published in the Journal of May 31, 1995.
There was no objection.
The amendment was withdrawn and the Bill was enrolled for Ratification.
H. 4015 -- Rep. Wilkins: A BILL TO AMEND SECTION 33-37-260, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO AMENDMENTS TO CHARTERS FOR BUSINESS DEVELOPMENT CORPORATIONS, SO AS TO DELETE THE PROVISION PROHIBITING THE CREATION OF NEW CLASSES OF STOCK; TO AMEND SECTION 33-37-410, RELATING TO MEMBERS, STOCKHOLDERS, AND BONDHOLDERS OF THE CORPORATIONS, SO AS TO CLARIFY THE AUTHORIZED INVESTORS AND INVESTMENT LIMITS; TO AMEND SECTION 33-37-450, RELATING TO VOTING BY STOCKHOLDERS AND MEMBERS OF THE CORPORATION, SO AS TO REVISE THE PROVISIONS TO MAKE THEM CONSISTENT AND COMPATIBLE WITH HAVING NEW CLASSES OF STOCK; TO AMEND SECTION 33-37-460, AS AMENDED, RELATING TO LOANS TO THE CORPORATION, SO AS TO REVISE THE PROVISIONS FOR LOAN LIMITS AND INVESTMENT LIMITS; TO AMEND SECTION 33-37-630, RELATING TO THE ELECTION OF THE BOARD OF DIRECTORS OF CORPORATIONS, SO AS TO CLARIFY THE REQUIREMENTS FOR ELECTION; AND TO AMEND THE 1976 CODE BY ADDING SECTION 33-37-470 SO AS TO AUTHORIZE THE ISSUANCE OF NEW CLASSES OF STOCK AND ARTICLE 9 TO CHAPTER 37, TITLE 33 SO AS TO PROVIDE FOR APPLICATION OF THE BUSINESS CORPORATIONS ACT.
H. 3578 -- Reps. Wilkins, McMahand, Tripp, Haskins, Walker, Littlejohn, Allison, Rice, Easterday, D. Smith, Davenport, Jaskwhich, Herdklotz, Wells, Lanford, Cato and Fair: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTIONS 5-3-15 AND 55-11-185 SO AS TO PROVIDE THAT THE REAL PROPERTY OWNED BY AN AIRPORT DISTRICT COMPRISED OF MORE THAN ONE COUNTY MAY NOT BE ANNEXED BY A MUNICIPALITY WITHOUT PRIOR WRITTEN APPROVAL OF THE GOVERNING BODY OF THE DISTRICT, AND PROVIDE THAT THE REAL PROPERTY OWNED BY THE GREENVILLE-SPARTANBURG AIRPORT DISTRICT MAY NOT BE ANNEXED BY A MUNICIPALITY WITHOUT PRIOR WRITTEN APPROVAL OF THE GREENVILLE-SPARTANBURG AIRPORT COMMISSION.
Senator RUSSELL asked unanimous consent to take the Bill up for immediate consideration.
There was no objection.
The following House Bill was read the third time and ordered returned to the House with amendments:
H. 3518 -- Rep. Richardson: A BILL TO AMEND SECTION 38-31-20, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE "SOUTH CAROLINA PROPERTY AND CASUALTY INSURANCE GUARANTY ASSOCIATION ACT", SO AS TO CHANGE THE DEFINITION OF "COVERED CLAIM"; AND TO AMEND SECTION 38-31-100, RELATING TO THE SAME ACT, THE REQUIREMENT THAT CLAIMANTS EXHAUST RIGHTS UNDER OTHER POLICIES, AND CLAIMS RECOVERABLE FROM MORE THAN ONE ASSOCIATION, SO AS TO DELETE CERTAIN LANGUAGE, AND PROVIDE, AMONG OTHER THINGS, THAT ANY RECOVERY UNDER THIS ACT MUST BE REDUCED BY THE STATUTORY CAP APPLICABLE TO THE OTHER INSURANCE GUARANTY ASSOCIATION OR ITS EQUIVALENT.
H. 3663 -- Rep. Kirsh: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 56-3-2340 SO AS TO CREATE AN ANTIQUE MOTOR VEHICLE DEALER LICENSE PLATE.
H. 3907 -- Agriculture, Natural Resources and Environmental Affairs Committee: A BILL TO AMEND TITLE 44, CHAPTER 56, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO HAZARDOUS WASTE, BY ADDING ARTICLE 4 SO AS TO PROVIDE FOR DRYCLEANING FACILITY DISCHARGE REHABILITATION, TO CREATE THE DRYCLEANING FACILITY RESTORATION TRUST FUND AND PROVIDE FOR ITS USES, TO ESTABLISH PROCEDURES FOR RECEIVING SITE REHABILITATION FUNDS, TO REQUIRE DRYCLEANING FACILITIES TO REGISTER AND PAY FEES, TO ESTABLISH SURCHARGES FOR CONDUCTING A DRYCLEANING BUSINESS OR FOR PRODUCING OR IMPORTING DRYCLEANING SOLVENTS, AND TO ESTABLISH THE DRYCLEANING ADVISORY COUNCIL AND TO PROVIDE FOR ITS MEMBERSHIP AND DUTIES.
The Senate proceeded to a consideration of the Bill. The question being the third reading of the Bill.
Senator LEVENTIS proposed the following amendment (BR1\18515AC.95), which was adopted:
Amend the bill, as and if amended, page 1, line 38, by inserting /could/ before /result/.
Amend further, page 2, line 4, by deleting /liability immunity/ and inserting /an insurance pool for the purpose of defraying the cost of remediation or cleanup/.
Amend further, by striking all after the enacting words and inserting:
/SECTION 1. Title 44, Chapter 56 of the 1976 Code is amended by adding:
Section 44-56-410. As used in this article:
(1) 'Department' means the Department of Health and Environmental Control.
(2) 'Discharge' means leakage, seepage, or other release.
(3) 'Drycleaning facility' means a commercial establishment located in this State that operates or has at some time in the past operated in whole or in part for the purpose of cleaning clothing and other fabrics utilizing a process which involves the use of drycleaning solvents. 'Drycleaning facility' includes laundry facilities that are using or have used drycleaning solvents as part of their cleaning process, but does not include, textile mills or uniform rental and linen supply facilities.
(4) 'Drycleaning solvents' means nonaqueous solvents used in the cleaning of clothing and other fabrics and includes perchloroethylene (also known as tetrachloroethylene) and Stoddard solvent, and their breakdown products. 'Drycleaning solvents' includes only solvents originating from use at a drycleaning facility or by a wholesale supply facility.
(5) 'Dry drop-off facility' means a commercial retail store that receives from customers clothing and other fabrics for drycleaning at an off-site drycleaning facility and does not clean the clothing or fabrics at the store utilizing drycleaning solvents.
(6) 'Employee' means a natural person employed and paid by the owner of a drycleaning facility for thirty-five or more hours a week for forty-five or more weeks a year and on whose behalf the owner contributes payments to the South Carolina Employment Security Commission or Department of Revenue as required by law. Excluded from the meaning of the term 'employee' are owners of drycleaning facilities and family members of owners, regardless of the level of consanguinity, if the family members are not employed and compensated pursuant to the definition of the term 'employee' contained in this item. Part-time employees who are employed and paid for fewer than thirty-five hours a week for fewer than forty-five weeks a year must not be deemed to be employees unless their hours and weeks of employment, when combined with the hours and weeks of employment of another or other part-time employee or employees, total thirty-five or more hours a week for forty-five or more weeks a year.
(7) 'Person' means any individual, partnership, corporation, association, or other entity that is vested with ownership, dominion, or legal or rightful title to the real property or which has a ground lease interest in the real property on which a drycleaning or wholesale supply facility is or has ever been located.
(8) 'Wholesale supply facility' means a commercial establishment that supplies drycleaning solvents to drycleaning facilities.
(9) 'Insolvent' means the approved expenses of the Department of Health and Environmental Control and the Department of Revenue as well as the estimated cleanup costs are equal to or exceed the fund balance and projected revenues through June 30, 2005.
Section 44-56-420. (A) There is created in the state treasury a separate and distinct account called the 'Drycleaning Facility Restoration Trust Fund', revenue for which must be collected and enforced by the Department of Revenue, and the fund must be administered by the Department of Health and Environmental Control and expended for the purposes of this article. However, the department may contract for the administration of the fund or any part of the administration of the fund. Judgments, recoveries, reimbursements, loans, and other fees and charges related to the implementation of this section, the tax revenues levied, collected, and credited pursuant to Section 44-56-480, and the registration fees collected pursuant to Section 44-56-470 must be credited to the fund. Charges against the fund must be made in accordance with the provisions of this section. The State accepts no financial responsibility as a result of the creation of the fund. The creation of the fund creates no burden upon the State to provide monies for the fund by any mechanisms other than as provided in this section. At no time shall monies from the general fund be obligated to supplement the fund. The State may recover to the fund any funds expended from the fund which were not utilized in accordance with this article.
(B) Whenever incidents of contamination by drycleaning solvents related to the operation of drycleaning facilities or wholesale supply facilities pose a threat to the environment or the public health, safety, or welfare, the department shall obligate monies available in the fund pursuant to this section to provide for:
(1) the prompt investigation and assessment of the contaminated sites; however, the owner or operator of a drycleaning facility or wholesale supply facility or a person must pay for the cost of the investigation and assessment up to the amount of the owner's, operator's, or person's deductible, and the department only shall provide monies that exceed the owner's, operator's, or person's deductible; however, in order to receive these monies the owner, operator, or person must comply with this article and the regulations promulgated under this article;
(2) the expeditious treatment, restoration, or replacement of potable water supplies;
(3) the rehabilitation of contaminated drycleaning facility sites, which consist of rehabilitation of affected soil, groundwater, and surface waters, using the most cost-effective alternative that is reliable and feasible technologically and that provides adequate protection of the public health, safety, and welfare and minimizes environmental damage in accordance with the site selection and rehabilitation criteria established by the department, except that nothing in this article may be construed to authorize the department to obligate funds for payment of costs which may be associated with, but are not integral to, site rehabilitation;
(4) the maintenance and monitoring of contaminated sites;
(5) the inspection and supervision of activities described in this section;
(6) the expenses of administering the fund by the department including the employment of department staff to carry out the department's duties described in this article; however, the department may exclude five percent of the average annual collections of the fund or the amount required to fund four employees and the administrative costs associated with these employees, whichever is greater;
(7) the payment of reasonable costs of restoring property so as to assure public health and safety, as determined by the department.
(C) The fund may not be used to:
(1) restore sites which are contaminated by solvents normally used in drycleaning operations if the activities at a site are not related to the operation of a drycleaning facility or wholesale supply facility;
(2) restore sites that are contaminated by drycleaning solvents being transported to or from a drycleaning facility or wholesale supply facility or that are contaminated as a result of the delivery of drycleaning solvents to a drycleaning facility or wholesale supply facility on or after July 1, 1995, if the contamination resulted from gross negligence;
(3) fund any costs related to the restoration of a site that is proposed for listing or is listed on the State Priority List or on the National Priority List pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, or any site that is required to obtain a permit pursuant to the Resource Conservation and Recovery Act, as amended;
(4) pay any costs associated with a fine, penalty, or action brought against the owner or operator of a drycleaning facility or wholesale supply facility or a person under local, state, or federal law;
(5) pay any costs incurred before July 1, 1995, for the remediation of a contaminated site;
(6) pay any costs to landscape or otherwise artificially improve a contaminated site;
(7) pay any costs related to the restoration of a wholesale supply storage site which is contaminated by hydrocarbon-based chemicals other than Stoddard;
(8) pay any costs related to contamination assessment where no contamination from drycleaning solvents is discovered;
(9) pay any costs for work not approved by the department in accordance with this article or regulations promulgated pursuant to this article;
(10) restore sites that are uniform rental and linen supply facilities unless the site was operated as a drycleaning facility on July 1, 1995, and has participated in the fund;
(11) restore sites that are no longer operated as drycleaning facilities or coin-operated drycleaning facilities where the owner or person has not paid a registration fee for the site pursuant to Section 44-56-470(B) and has not been involved in the drycleaning industry after October 1, 1995.
(D) The department shall promulgate regulations that provide for an initial contamination assessment to determine whether a drycleaning facility or wholesale supply facility is contaminated by drycleaning solvents. Payment for the initial assessment is as provided for in subsection (B), and site rehabilitation portions of the program must be administered through direct payments to contractors actually accomplishing the site rehabilitation and not through reimbursement to drycleaning or wholesale supply facility owners, operators, or persons. All services related to site rehabilitation must be preapproved by the department before performance in order to receive payment for services rendered.
(E) If the committed money in the fund exceeds the current fund balance and the department declares a site is an emergency, the owner or operator of the drycleaning facility, wholesale facility, or person is liable for the cost of that cleanup. However, once the fund has funds available, the owner, operator, or person who paid for the approved cleanup must be reimbursed for the costs incurred to clean up the site through annual payments which may not exceed five percent of the total fund's average annual balance if the cleanup complies with the provisions of this article or regulations promulgated under this article. The fund may not obligate itself for more than it is estimated to generate through surcharges, annual fees, and registration fees.
Section 44-56-430. (A) If the State Treasurer determines that the fund is insolvent, an environmental surcharge must be levied on every owner, operator, or person participating in the fund at a rate of one-half percent on all gross sales for a minimum of one year. When the State Treasurer determines that the fund is solvent the one-half percent surcharge must be suspended.
(B) The surcharge imposed by this section is due on the first day of the month succeeding the month in which the charge is imposed and must be paid before the twenty-first day of each month. The surcharge must be reported on forms and in the manner prescribed in regulation by the Department of Revenue. The proceeds of the surcharge, after deducting the administrative costs incurred by the Department of Revenue in administering, auditing, collecting, distributing, and enforcing the surcharge, must be remitted to the State Treasurer and credited to the fund and must be used as provided in Section 44-56-420. For the purposes of this section, the proceeds of the surcharge include all funds collected and received by the Department of Revenue including interest and penalties on delinquent surcharges.
(C) The Department of Revenue shall administer, collect, and enforce the surcharge imposed under this section pursuant to the procedures for administration, collection, and enforcement of the general stated sales tax imposed under Title 12, except as provided in this subsection. These procedures include, but are not limited to, those regarding the filing of consolidated returns, the granting of sale for resale exemptions, and the interest and penalties on delinquent taxes. The surcharge must not be included in the computation of estimated taxes, and the dealer's credit for collecting taxes or fees does not apply.
Section 44-56-440. (A) The Board of the Department of Health and Environmental Control shall establish a moratorium on administrative and judicial actions by the department concerning drycleaning facilities and wholesale supply facilities resulting from the discharge of drycleaning solvents to soil or waters of the State. This moratorium applies only to those facilities deemed eligible as defined in this section. The board may review and determine the appropriateness of the moratorium at least annually. This review shall include, but is not limited to, consideration of these factors:
(1) the solvency of the fund as described in Section 44-56-420;
(2) prioritization of the sites;
(3) public health concerns related to the sites;
(4) eligibility of the sites;
(5) corrective action plans submitted to the department.
After review, the board may suspend all or a portion of the moratorium if necessary.
(B) A drycleaning facility or wholesale supply facility that is being operated as a drycleaning facility or wholesale supply facility at the time a request for determination of eligibility is filed and at which there is contamination from drycleaning solvents is eligible under this section regardless of when the contamination was discovered if the drycleaning facility or wholesale supply facility:
(1) has been registered with the Department of Revenue;
(2) is determined by the department to be in compliance with department regulations regulating drycleaning facilities or wholesale supply facilities;
(3) has third-party liability insurance when and if the insurance becomes available at a reasonable cost, as determined by the Department of Insurance and if the insurance covers liability for contamination that occurred both before and after the effective date of the policy;
(4) has provided documented evidence of contamination by drycleaning solvents;
(5) after December 1, 1996, demonstrates current certification pursuant to Section 44-56-470(D);
(6) has not been operated in a grossly negligent manner at any time after November 18, 1980.
(C) A drycleaning facility or wholesale supply facility that ceases to be operated as a drycleaning facility or wholesale supply facility before July 1, 1995, and before the time a request for determination of eligibility is filed at which there is contamination from drycleaning solvents is eligible under this section regardless of when the contamination was discovered provided the owner or operator of the drycleaning facility or wholesale supply facility or person provides documented evidence of the contamination by drycleaning solvents.
(D) A drycleaning facility that has been contaminated as a result of the discharge of drycleaning solvents by a supplier of solvents during the delivery of drycleaning solvents to a drycleaning facility first must utilize the insurance of the supplier to the full extent of the coverage for site rehabilitation before any funds may be expended from the fund for the rehabilitation of that portion of the site which was contaminated by the discharge during delivery.
(E) If an eligible drycleaning or wholesale owner or operator or person applies for monies from the fund before:
(1) October 1, 1997, the deductible is one thousand dollars;
(2) October 1, 1998, the deductible is five thousand dollars;
(3) October 1, 1999, the deductible is ten thousand dollars;
(4) October 1, 2000, the deductible is fifteen thousand dollars;
(5) October 1, 2001, the deductible is twenty thousand dollars.
If an owner, operator, or person applies after October 1, 2001, the deductible is twenty-five thousand dollars.
If a contaminated site which is no longer operated as a drycleaning facility or coin-operated drycleaning facility, or both, and the owner or former owner or person is involved in the drycleaning industry subsequent to July 1, 1995, and has paid a registration fee pursuant to Section 44-56-470(B), the deductible is fifteen thousand dollars.
(F) An owner of a drycleaning facility or wholesale supply facility or person seeking eligibility under this subsection shall submit an application for determination of eligibility to the department on forms provided by the department. The department shall review the application and request any additional information within ninety days. The department shall notify the applicant within one hundred eighty days as to whether the facility is eligible.
(G) Eligibility under this subsection applies to the site of the drycleaning facilities or wholesale supply facilities. A determination of eligibility or ineligibility is not affected by the subsequent conveyance of the ownership of the drycleaning facilities or wholesale supply facilities.
(H) This section does not apply to a site where the department has been denied site access to implement this section or to drycleaning facilities owned or operated by a local government or by the state or federal government.
(I) A site owned by an owner of a drycleaning facility or a person at any time subsequent to October 1, 1995, who misrepresents the number of employees upon which the registration fee provided for in Section 44-56-460 is based is not eligible for funds under this section.
Section 44-56-450. (A) In order to identify drycleaning facilities and wholesale suppliers which have experienced contamination resulting from the discharge of drycleaning solvents and to assure the most expedient rehabilitation of these sites, the owners and operators of drycleaning facilities and wholesale suppliers and persons are encouraged to detect and report contamination from drycleaning solvents related to the operation of drycleaning facilities or wholesale supply facilities. Forms must be distributed to owners and operators of drycleaning and wholesale supply facilities and to persons. The Department of Revenue shall use reasonable efforts to identify and notify drycleaning and wholesale supply facilities of the registration requirements by certified mail, return receipt requested. The Department of Revenue shall provide to the Department of Health and Environmental Control a copy of each applicant's registration materials within thirty working days of the receipt of the materials.
(B) A report of drycleaning solvent contamination at a drycleaning facility made to the department by a person in accordance with this article or regulations promulgated under this article may not be used directly as evidence of liability for the discharge in a civil or criminal trial arising out of the discharge.
Section 44-56-460. (A) The fund must be used to rehabilitate sites that pose a significant threat to the public health, safety, or welfare. The department shall promulgate regulations to establish priorities for state-conducted rehabilitation at contaminated drycleaning facilities or wholesale supply facilities sites based upon factors that include, but are not limited to:
(1) the degree to which human health, safety, or welfare may be affected by exposure to the contamination;
(2) the size of the population or area affected by the contamination;
(3) the present and future uses of the affected aquifer or surface waters, with particular consideration as to the probability that the contamination is substantially affecting or will migrate to and substantially affect a known public or private source of potable water; and
(4) the effect of the contamination on the environment.
(B) Nothing in this subsection may be construed to restrict the department from modifying the priority status of a drycleaning facility or wholesale supply facility rehabilitation site where conditions warrant. Criteria for determining completion of site rehabilitation program tasks and site rehabilitation programs must be based upon the factors set forth in subsection (A)(1) and these factors:
(1) individual site characteristics, including natural rehabilitation processes;
(2) applicable state water quality standards;
(3) whether deviation from state water quality standards or from established criteria is appropriate, based upon the degree to which the desired rehabilitation level is achievable and can be reasonably and cost-effectively implemented within available technologies or control strategies, except that, where a state water quality standard is applicable, the deviation may not result in the application of standards more stringent than the standard.
(4) it is recognized that restoration of groundwater resources contaminated with certain drycleaning solvents, such as perchloroethylene, may not be achievable using currently available technology. In situations where available technology is not anticipated to meet water quality standards, the department, at its discretion, is encouraged to use innovative technology including, but not limited to, technology which has been field tested through the federal innovative technology program and which has engineering and cost data available.
(5) Nothing in this section may be construed to restrict the department from temporarily postponing completion of a site rehabilitation program for which drycleaning restoration funds are being expended whenever the postponement is considered necessary in order to make funds available for rehabilitation of a drycleaning facility or wholesale supply facility site with a higher priority status.
(6) The department shall provide the rehabilitation of eligible drycleaning facilities and wholesale supply facilities consistent with this subsection. Nothing in this article subjects the department to liability for any action that may be required of the owner, operator, or person by a private party or a local, state, or federal governmental entity.
(C) The department may not expend from the fund yearly more than five percent of the average collected annual balance of the fund to pay for the costs at any one eligible site for the activities described in Section 44-56-420(B).
(D) The department shall promulgate regulations necessary for the implementation of this section.
(E) The department shall create a mechanism in which consultants' credentials, work objectives and plans, proposed costs ranging from assessment, cleanup, and monitoring are outlined and submitted in writing for the department's approval. The department shall establish a list of those vendors who are qualified to perform work to be financed by the fund. Vendors must be recertified every two years."
Section 44-56-470. (A) For each drycleaning facility owned and in operation, the owner or operator of the facility or person shall register with and pay initial registration fees to the Department of Revenue by October 1, 1995, and pay annual or quarterly renewal registration fees as established by the department in regulation. The fee must be accompanied by a notarized certification from the owner, on a form provided by the department, certifying the number of employees employed by the owner for the twelve-month period preceding payment of the fee.
(B) An initial and annual registration fee for each drycleaning facility with:
(1) up to four employees is seven hundred fifty dollars;
(2) five to ten employees is one thousand, five hundred dollars;
(3) eleven or more employees is two thousand, two hundred fifty dollars.
The fee must be paid within thirty days after receipt of billing by the department.
(C) Revenue derived from the registration fees must be submitted to the State Treasurer and credited to the Drycleaning Facility Restoration Trust Fund.
(D) Before December 1, 1996, an owner or operator of a drycleaning facility or person shall receive certification from the International Fabricare Institute, the Neighborhood Cleaners Association, or some other comparable nationally recognized drycleaning industry association certifying that the operator has demonstrated a level of competency to operate a drycleaning facility in accordance with the highest standards of the drycleaning industry.
(E) Before January 1, 1997, an owner or operator of a drycleaning facility or person shall install dikes or other containment structures around each machine or item of equipment in which drycleaning solvents are used and around an area in which solvents or waste containing solvents are stored. The dikes or containment structures must be capable of containing one-third of the capacity of the total tank capacity of each machine. To the extent practicable, an owner of a drycleaning facility or person shall seal or otherwise render impervious those portions of all diked floor surfaces upon which any drycleaning solvents may leak, spill, or otherwise be released.
(F) For drycleaning facilities that commence operating after July 1, 1995, the owners or operators of these facilities or persons, before the commencement of operations, shall install beneath each machine or item of equipment in which drycleaning solvents are used a rigid and impermeable containment vessel capable of containing one-third of the total tank capacity of each machine.
(G) A person or the owner or operator of a drycleaning facility or wholesale supply facility at which there is a spill of more than the federally mandated reportable quantity of drycleaning solvent outside of a containment structure, after July 1, 1995, shall report the spill to the department immediately upon the discovery of the spill and comply with existing emergency response regulations.
(H) Failure to comply with the requirements of this section constitutes gross negligence with regards to determining site eligibility.
Section 44-56-480. (A) Beginning July 1, 1995, an environmental surcharge is levied on the privilege of producing in, importing into, or causing to be imported into the State perchloroethylene (tetrachloroethylene) and Stoddard solvent. A surcharge of ten dollars per gallon on perchloroethylene and two dollars per gallon on Stoddard solvent is levied on each gallon to be used for drycleaning purposes when first imported into or produced in the State. A drycleaning facility not subject to this article pursuant to Section 44-56-485 may request a statement of nonparticipation from the department so as to demonstrate its status under this article and its exemption from the surcharge provided for in this subsection.
(B) A person producing in, importing into, or causing to be imported into this State perchloroethylene and Stoddard solvent for sale, use, or otherwise must register with the Department of Revenue and become licensed for the purposes of remitting the surcharge pursuant to this section. The person must register as a producer or importer of perchloroethylene or Stoddard solvent. Persons operating at more than one location only are required to have a single registration. The fee for registration is thirty dollars. Failure to timely register is a misdemeanor and, upon conviction, the person must be fined up to one thousand dollars or imprisoned up to thirty days.
(C) The surcharge imposed by this section is due on the first day of the month succeeding the month of production, importation, or removal from a storage facility and must be paid on or before the twentieth day of the month. The surcharge must be reported on forms and in the manner prescribed by the Department of Revenue by regulation.
(D) An owner, operator, or person subject to the surcharge under this section or a person who sells surcharge-paid perchloroethylene or Stoddard solvent, other than a retail dealer, must separately state the amount of the surcharge paid on a charge ticket, sales slip, invoice, or other tangible evidence of the sale or must certify on the sales document that the surcharge required pursuant to this section has been paid.
(E) All perchloroethylene and Stoddard solvent to be used for drycleaning purposes which are imported, produced, or sold in this State are presumed to be subject to the surcharge imposed by this section. An owner, operator, or person, except the final retail consumer, who has purchased perchloroethylene or Stoddard solvent for use in drycleaning for sale, use, consumption, or distribution in this State must document that the surcharge imposed by this section has been paid or must pay the surcharge directly to the Department of Revenue in accordance with subsection (C).
(F) The surcharge imposed by this section must be remitted to the Department of Revenue. The payment must be accompanied by the forms as the Department of Revenue prescribes. The proceeds of the surcharge, after deducting the administrative costs incurred by the Department of Revenue in administering, auditing, collecting, distributing, and enforcing the surcharge, must be remitted by the Department of Revenue to the State Treasurer to be credited to the Drycleaning Facility Restoration Trust Fund and must be used as provided in Section 44-56-420. For the purposes of this section, the proceeds of the surcharge include all funds collected and received by the Department of Revenue, including interest and penalties on delinquent surcharges.
(G) The Department of Revenue shall administer, collect, and enforce the surcharge authorized under this section pursuant to the same procedures used in the administration, collection, and enforcement of the general state sales tax imposed under Title 12 except as provided in this section. Provisions of Title 12 regarding the department's authority to audit and make assessments, the keeping of books and records, and interest and penalties on delinquent taxes apply. The surcharge may not be included in the computation of estimated taxes nor does the dealer's credit for collecting taxes or fees apply to the surcharge.
(H) The Department of Revenue shall retain funds for the incremental cost to administer the program. The Department of Revenue may promulgate regulations and may prescribe and publish forms as may be necessary to effectuate the purposes of this section.
(I) The Department of Revenue may establish audit procedures and assess delinquent surcharges.
(J) Perchloroethylene and Stoddard solvent used for drycleaning exported from the first storage facility at which it is held in this State by the producer or importer is exempt from the surcharge pursuant to this section. Anyone exporting perchloroethylene or Stoddard solvent on which the surcharge has been paid may apply for a refund or credit. The Department of Revenue may require information as it considers necessary in order to approve the refund or credit.
(K) The Department of Revenue may authorize:
(1) a quarterly return and payment when the surcharge remitted by the licensee for the preceding quarter did not exceed one hundred dollars;
(2) a semiannual return and payment when the surcharge remitted by the licensee for the preceding six months did not exceed two hundred dollars;
(3) an annual return and payment when the surcharge remitted by the licensee for the preceding twelve months did not exceed four hundred dollars.
Section 44-56-485. (A) Notwithstanding any other provision of this article, this article does not apply to a drycleaning facility that is in existence on July 1, 1995, that drycleans with Stoddard solvents or its breakdown products only. However, an owner or operator of a facility or person may elect to place the facility under the provisions of this article by paying the required annual fee for the facility before October 1, 1995. If an owner or operator of a facility or person does not elect to place a facility under this article before October 1, 1995, the current or a future owner or operator of the site or person is prohibited from receiving any funds or assistance under this article. Failure to pay the required annual fee by October 1, 1995, constitutes electing not to place a facility under this article. Additionally, an owner, operator, or person who does not elect to place a facility under this article is prohibited from receiving any funds or assistance under this article for any site the owner, operator, or person currently or previously operated or abandoned.
(B) A drycleaning facility in existence on July 1, 1995, that uses perchloroethylene and Stoddard solvent or their breakdown products may elect to remove the facility from the requirements of this article if the election is made before October 1, 1995. Failure to pay the required annual fee by October 1, 1995, constitutes electing to remove a facility from the requirements of this article. An owner, operator, or person of a facility using perchloroethylene and Stoddard solvents or their breakdowns may not elect to remove a facility from the requirements of this article for one solvent and not the other.
Section 44-56-490. (A) Whenever the department finds that a person is in violation of a provision of this article or a regulation promulgated under this article, the department may issue an order requiring the owner, operator, or person to comply with the provision or regulation or the department may bring civil action for injunctive relief in an appropriate court of competent jurisdiction.
(B) An owner, operator, or person who violates a provision of this article, a regulation promulgated under this article, or an order of the department issued under subsection (A) is subject to a civil penalty not to exceed ten thousand dollars for each day of violation.
(C) An owner, operator, or person who wilfully violates a provision of this article, a regulation promulgated under this article, or an order of the department issued under subsection (A) is guilty of a misdemeanor and, upon conviction, must be fined not more than twenty-five thousand dollars per day of violation or imprisoned for not more than one year or both.
Section 44-56-495. (A) There is created the Drycleaning Advisory Council to advise the Department of Health and Environmental Control on matters relating to regulations and standards which affect drycleaning and related industries.
(B) The council is composed of:
(1) five representatives of the drycleaning industry;
(2) one representative of the wholesale industry;
(3) one representative of the real estate industry;
(4) one environmental engineer;
(5) one representative of the banking industry;
(6) two representatives from the Department of Health and Environmental Control, one of whom must be an administrator and one of whom must represent water quality control;
(7) a representative of the Department of Revenue;
(8) a representative of the Department of Insurance;
(9) a representative of the State Budget and Control Board;
(10) a representative of the Department of Natural Resources, Division of Water Resources.
(C) Members enumerated in subsection (B)(1) through (5) may be appointed by the Governor with the advice and consent of the Senate and shall serve terms of two years and until their successors are appointed and qualify. The members enumerated in subsection (B)(6) through (10) must be appointed by the respective directors or commissioner of the appropriate agency, and all serve ex officio for terms of two years and until their successors are appointed and qualify. The chairman of the council must be elected by the members of the council at the first meeting of each new term."
SECTION 2. Notwithstanding Section 44-56-490(C) of the 1976 Code, as added by Section 1 of this act, the term for members initially appointed to the Drycleaning Advisory Council is for three years and the five representatives of the drycleaning industry must be appointed by the Governor from nominations submitted by the South Carolina Drycleaning Council, Inc.
SECTION 3. This act is repealed July 1, 2005, unless reauthorized by the General Assembly.
SECTION 4. This act takes effect July 1, 1995./
Renumber sections to conform.
Amend totals and title to conform.
Senator LEVENTIS explained the amendment.
There being no further amendments, the Bill was read the third time and ordered returned to the House of Representatives with amendments.
The following Bill was read the third time and ordered sent to the House of Representatives:
S. 879 -- Senators Martin and Alexander: A BILL TO AMEND SECTION 7-7-450, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE VOTING PRECINCTS FOR PICKENS COUNTY, SO AS TO CONSOLIDATE THE UNIVERSITY PRECINCT AND THE FORT HILL PRECINCT IN PICKENS COUNTY INTO A SINGLE PRECINCT ENTITLED THE "FORT HILL" PRECINCT.
(By prior motion of Senator ALEXANDER)
H. 3604 -- Reps. Wilkins, McMahand, Herdklotz, Haskins, Littlejohn, Wells, Rice, Jaskwhich, D. Smith, Tripp, Walker, Davenport, Fair, Allison, Lanford and Cato: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 55-11-220 SO AS TO CREATE AN AIRPORT ENVIRONS AREA WITHIN THE GREENVILLE-SPARTANBURG AIRPORT DISTRICT AND PROVIDE THAT AN AIRPORT ENVIRONS AUTHORITY IS CREATED AND CONFERRED CERTAIN POWERS TO ENSURE COMPATIBLE LAND USE OF PROPERTY IN THE ENVIRONS AREA, PROVIDE FOR THE COMPOSITION OF THE AUTHORITY, AND PROVIDE THAT IF THERE IS A CONFLICT BETWEEN THE POWERS CONFERRED ON THE AUTHORITY AND OTHER REGULATIONS APPLICABLE TO THE SAME AREA, THE PROVISIONS CONFERRED TO THE AUTHORITY PURSUANT TO THE PROVISIONS OF THIS ACT CONTROL.
Senator RUSSELL asked unanimous consent to take the Bill up for immediate consideration.
There was no objection.
The Senate proceeded to a consideration of the Bill. The question being the third reading of the Bill.
Senators J. VERNE SMITH, RUSSELL, ROSE, BRYAN, STILWELL, COURTNEY and THOMAS proposed the following Amendment No. 2 (PT\2073DW.95), which was adopted:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/SECTION 1. (A) The General Assembly finds that airport hazards threaten the lives and property of users of the Greenville-Spartanburg Airport and of occupants of land in its vicinity; if of the obstruction type, these hazards reduce the size of the area available for the taking off, maneuvering, or landing of aircraft, thus tending to destroy or impair the utility of the airport and the public investment in it. It is further found that other hazards may arise from certain activities and uses of land in the immediate vicinity of the Greenville-Spartanburg Airport that are not compatible with normal airport operations, and may, if not regulated, endanger the lives of passengers and persons on the ground, adversely affect their health, or otherwise limit the accomplishment of normal activities. It is further found that because the areas impacted by these airport hazards are within different political jurisdictions, a coordinated, community-wide approach is required to protect the public interest. Accordingly, it is declared that:
(1) for the purposes of this section, an airport hazard is any structure, tree, or use of land which obstructs the airspace required for the flight of aircraft in taking off, maneuvering, or landing of aircraft, or which involves certain activities and uses of land in the immediate vicinity of airports, which are not compatible with normal airport operations, and may, if not regulated, adversely affect the health of residents in the vicinity;
(2) the creation or establishment of an airport hazard and the incompatible use of land in the Greenville-Spartanburg Airport vicinities are public nuisances and injure the community served by the Greenville-Spartanburg Airport;
(3) it is therefore necessary in the interest of public health, public safety, and general welfare that the creation or establishment of airport hazards and incompatible land uses be regulated and prevented to assure adequate airspace and uses compatible with airport noise and in the interests of public safety; and
(4) this should be accomplished by the exercise of local police powers and existing administrative and regulatory procedures, without additional compensation, on a coordinated, community-wide basis.
(B) It is further declared that limiting and regulating land uses incompatible with normal airport operations as presently existing and as may be planned, preventing the creation or establishment of airport hazards, and eliminating, removing, altering, mitigating, or marking and lighting of existing airport hazards are public purposes.
(C) It is further found that the public welfare in the upstate of South Carolina is greatly enhanced by having an airport which can meet the demands of, and support the economic growth in, the upstate. In that connection, it is found that high density residential and certain institutional uses in close proximity to the airport are incompatible and inappropriate and that all development in the vicinity of the airport should be consistent with the public safety and welfare determinations of federal, state, and local planning authorities with specific expertise in such planning considerations.
SECTION 2. The 1976 Code is amended by adding:
"Section 55-11-230. (A)(1) An area designated as the airport environs area is created within the district for purposes of assuring land uses compatible with airport operations. The airport environs area consists of all property contained within the rectangular area described as follows:
All property situate within 32,200 feet southwest of the centerpoint of the existing airport runway (being 7,600 feet in length), and 36,658 feet northeast of the centerpoint of the existing airport runway, and 5,280 feet northwest of the centerpoint of the existing airport runway, and 9,580 feet southeast of the centerpoint of the existing airport runway.
(2) Within the boundaries of the airport environs area described above, there is designated a sub-area which may require different land use and building performance standards. This sub-area shall conform to the area described in the Air Installation Compatible Use Zone pursuant to DODINST 4165.57 established by the United States Air Force applicable to runways 3L-21R (11,000 feet) and the proposed parallel runways 3R-21L (8,500 feet) including the CLEAR ZONES, ACCIDENT POTENTIAL ZONE I, and the ACCIDENT POTENTIAL ZONE II. Specifically, the sub-area includes all property 1,000 feet to each side of the runway centerlines and in a corridor 3,000 feet (1,500 feet either side of the runway centerlines) wide, extending from the runway thresholds along the extended runway centerlines for a distance of 15,000 feet, and shall include the property located between the two corridors.
(B)(1) There is created the Greenville-Spartanburg Airport Environs Planning Commission (the 'Airport Environs Planning Commission'), consisting of eleven voting members, which have the powers enumerated herein, and which must be separately constituted from the Greenville-Spartanburg Airport Commission, as follows:
(a) two members representing and appointed by the City of Greer, one of whom also must be a resident of Greenville County and one of whom also must be a resident of Spartanburg County;
(b) two members representing and appointed by Spartanburg County;
(c) one member representing and appointed by the Town of Duncan;
(d) one member representing and appointed by the Town of Lyman;
(e) two members representing and appointed by Greenville County;
(f) one member representing and appointed by the City of Mauldin;
(g) all members must be appointed or reappointed biennially by the appointing county or municipality;
(h) two members must be appointed or reappointed biennially by the Greenville-Spartanburg Airport District, one from Spartanburg County, and one from Greenville County.
If the members are elected members of the county or municipal governing body or members of the district, each such representative shall serve ex officio and with full voting privileges.
(2) If any new municipality is created where its boundaries are wholly or partially within the airport environs area, or if any existing municipality extends its corporate boundaries into the airport environs area, that municipality becomes entitled to appoint a member of the Airport Environs Planning Commission with a representative appointed as described in subitem (g) of item (1) of this subsection, and the membership shall expand accordingly.
(3) The Airport Environs Planning Commission is charged with the responsibility of:
(a) developing a coordinated comprehensive land use plan for the airport environs area in a manner consistent with the process referred to in the South Carolina Local Government Comprehensive Planning Enabling Act of 1994 contained in Article 3, Chapter 29, Title 6; however, once the Airport Environs Planning Commission has adopted a land use plan, no further action by any other commission or governing body is necessary in order to give effect to the regulations thereby adopted;
(b) updating the land use plan to reflect changes in the airport environs area and the uses of the airport; and
(c) monitoring the administration of, and compliance with, the plan by the affected counties and municipalities. The commission's actions are to assure that land use within the airport environs area is compatible with noise, health, safety, and welfare considerations arising from the operation of the district. The initial meeting of the Airport Environs Planning Commission must be held within forty-five days of the effective date of this section.
(4) By January 31, 1996, the Airport Environs Planning Commission shall develop a uniform land use plan and uniform building performance standards for the airport environs area, submit them for review and comment to the governing body of each political subdivision represented on the Airport Environs Planning Commission, as well as the South Carolina Department of Commerce and the Federal Aviation Administration, conduct public hearings pursuant to Article 3, Chapter 29, Title 6, on the proposed uniform plan and standards. After receiving comments and conducting hearings, the Airport Environs Planning Commission shall adopt a land use plan and building performance standards to be effective throughout the airport environs area and enforced fully and without amendment by each political subdivision represented on the Airport Environs Planning Commission. The Airport Environs Planning Commission, by majority of all voting members, may extend the January 31, 1996, deadline for a reasonable period of time not to exceed beyond March 31, 1996, for the completion of these tasks. Each political subdivision shall enforce the uniform plan and standards as an 'overlay zone', identifying areas subject to regulation which are supplementary to the existing regulations of that political subdivision, or as new or superseding provisions to that political subdivision's ordinances. If there is a conflict between the provisions adopted by the Airport Environs Planning Commission under this section or regulations of a political subdivision applicable to the airport environs area, then the provisions adopted by the Airport Environs Planning Commission under this section shall govern. If a uniform land use plan or uniform building performance standards are not developed by the Airport Environs Planning Commission in the manner provided in this section, any of the entities represented on the Airport Environs Planning Commission may file an action for relief, including mandamus or injunctive relief, in the Circuit Court for Greenville or Spartanburg County, to require adoption of the plan, or standards, or both as directed by this section. Such an action must be brought within sixty days of the deadline as set forth above.
(5) The Airport Environs Planning Commission shall organize itself, electing one of its members as chairman and one of its members as vice chairman, whose terms must be for two years. It shall appoint a secretary, who may or may not be a member, but who must be a representative or employee of the Airport District. The secretary shall give notice of all meetings to all members of the Airport Environs Planning Commission at least three business days prior to the meeting.
(6) The Airport Environs Planning Commission shall provide for the keeping of minutes of its proceedings which shall be a public record. A majority of the voting members of the Airport Environs Planning Commission shall constitute a quorum. A quorum shall be present before any business is conducted, other than the rescheduling of the meeting. A member must be present to vote. All decisions shall be by majority vote of the members present and voting. The Airport Environs Planning Commission, as it considers appropriate, may utilize committees and subcommittees. The general administrative expenses of the Airport Environs Planning Commission shall be borne by the Greenville-Spartanburg Airport District. A budget for such expenses shall be developed by the Airport Environs Planning Commission to include anticipated costs for consultants.
(7) The Airport Environs Planning Commission is subject to the provision of Freedom of Information Act as contained in Chapter 4, Title 30.
(8) The Airport Environs Planning Commission shall work with the Greenville and Spartanburg County Planning Commissions and the planning commission of each affected municipality in the performance of its duties as outlined in item (4) of this subsection. The costs of the services of consultants and advisors, other than provided for in the budget, rendered to the Airport Environs Planning Commission at the request of a specific member must be borne by that member unless otherwise approved by the Airport Environs Planning Commission.
(9) In developing the uniform land use plan and uniform building standards, the Airport Environs Planning Commission shall specifically address, among other items, the following specific issues:
(a) the providing of record notice to property owners of the fact that their property is within the airport environs area;
(b) density criteria for the airport environs area;
(c) sound abatement permit and building criteria;
(d) incompatible use criteria and definition for the sub-area and the remaining property within the airport environs area;
(e) height restriction criteria;
(f) lighting hazard criteria within the airport environs area;
(g) applicable FAA and state regulations for airport activities and operations;
(h) in the airport environs area not included in the sub-area, a method by which landowners may seek variances or exemptions from the plans or standards by executing in recordable form avigation easements, releases, or other appropriate documentation in a form approved by the Airport Environs Planning Commission;
(i) application and review processes for building permits;
(j) the providing of ongoing notice to the Airport Environs Planning Commission and each of its members of pending zoning or permitting requests and other actions in the affected counties and municipalities to assure that each member has notice and the opportunity to be heard with respect to such actions;
(k) enforcement and penalty provisions, including injunctive relief;
(l) the utilization of fees to be imposed to defray costs for services and attendant expenses involved in the administration of the regulations;
(m) the development of uniform standards for regulating nonconforming uses; and
(n) the uses in the airport environs area and the sub-area based on future projected uses of the airport which are not compatible and should not be permitted, which are basically incompatible and should be discouraged, and which are generally compatible with some limitations or restrictions. Such determination shall take into account the public safety and public welfare findings set forth in Section 1 hereof. Such determinations are to conform to and be consistent with noise and overflight zone-compatible land use recommendations of federal and state authorities, including specifically policies established by the United States Air Force pursuant to DODINST 4165.57 Air Installation Compatible Use Zone (A1CUZ), the uses recommended in the 1993 Greenville-Spartanburg Development Plan adopted by the county planning commissions, and the South Carolina Department of Commerce, Aviation Division.
(10) Following the adoption of the uniform land use plan and uniform building and performance standards by the Airport Environs Planning Commission, each political subdivision is responsible for the implementation and administration of the uniform provisions within its jurisdiction, including all administrative costs incurred in connection therewith. The district shall pay for any exceptional administrative costs determined by the Airport Environs Planning Commission, and agreed to by the district, to be direct and reasonable costs resulting from any special task required in the administration of the uniform plan and building performance standards. Additionally, the district shall pay for the reasonable administrative expenses involved in the monitoring activities described in subitem (c) of item (3) of this subsection. The Airport Environs Planning Commission shall meet at least annually to review the administration of the uniform plan and building performance standards by the member bodies, to consider issues which may require modifications or additions to the uniform provisions, to recommend appropriate studies to evaluate the effectiveness of the objectives of the uniform provisions, to consider future activities of the district and the impact of the same upon the airport environs area, and conduct such other business as may be appropriate. Based upon these activities, the Airport Environs Planning Commission may determine a need for amendments to the uniform provisions. Amendments shall be made in accord with the same uniform provisions on conducting hearings and submitting for review and comments for the initial uniform land use plan and uniform building performance standards.
(11)(a) In connection with the administration of the uniform provisions by any member political subdivision, the Airport Environs Planning Commission as a whole or any of its member bodies individually or collectively, including the district, have standing to appear and support or oppose the proposed action of the particular political subdivision involved and have the same standing to appeal this action as the affected political subdivision or the affected landowner would have under Article 5, Chapter 29, Title 6.
(b) Affected property owners or other aggrieved parties have the same standing to appeal rights with respect to a decision by a member political subdivision pursuant to its administration of the uniform provisions as property owners or aggrieved parties have in accordance with the appeal processes provided in Article 5, Chapter 29, Title 6.
(12) A lawful use which exists on the date of adoption by the Airport Environs Planning Commission of the uniform provisions required by this section and which is inconsistent with the provisions of the uniform land use plan or uniform performance building standards is exempt from the uniform provisions, and any regulation created by these uniform provisions may not require the removal or alteration of any structure that, as it exists when the uniform provisions are adopted, did not conform to that regulation.
(13) All costs, fees, or awards, or any combination of these, arising from or as a result of any action of the Airport Environs Planning Commission in excess of any state or federal funds received to defray such costs, fees, or awards must be borne by the counties in which the Greenville-Spartanburg Airport District is located; provided, however, that any costs, fees, or awards arising from the administration of the comprehensive land use plan and uniform building standards must be borne by the municipality or county performing the administration within that political subdivision.
SECTION 3. Within sixty days after the effective date of this act, the Greenville-Spartanburg Airport Environs Planning Commission shall give actual notice, by use of the United States Postal Service, to those property owners, whose property is located partially or totally within the airport environs area as described in this act.
SECTION 4. This act takes effect upon approval by the Governor./
Renumber sections to conform.
Amend title to conform.
Senator RUSSELL explained the amendment.
Senator THOMAS proposed the following Amendment No. 4 (PT\2075DW.95), which was not adopted:
Amend the amendment, as and if amended, page 10, line 7, by inserting immediately following /subdivision/ an appropriately numbered item to read:
/( ) Upon enactment of this section, the current zoning and pertaining regulations as enacted by the municipalities and counties within and bordering the Airport Environs Area shall remain in effect unless changed by normal county zoning procedures and also changed in this code section./
Renumber items to conform.
Amend title to conform.
Senator THOMAS explained the amendment.
Senator THOMAS asked unanimous consent to make a motion that a roll call vote be taken solely by the members of the Spartanburg and Greenville Delegations on the question of the adoption of Amendment No. 4.
There was no objection.
The "ayes" and "nays" were demanded and taken, resulting as follows:
AYES
Boan Reese Thomas
NAYS
Bryan Courtney Russell Stilwell
The amendment was not adopted.
Senator RUSSELL proposed the following Amendment No. 5 (PT\2082DW.95), which was adopted:
Amend the amendment, as and if amended, page 10, lines 1 through 7, by deleting item (13) and inserting:
/(13) All costs, fees, or awards, or any combination of these, arising from or as a result of any action of the Airport Environs Planning Commission or the enforcement of the uniform provisions enacted pursuant to this section in excess of any state or federal funds received to defray such costs, fees, or awards must be borne by the counties in which the Greenville-Spartanburg Airport District is located; provided, however, any municipality or county administering the comprehensive land use plan and uniform building standards adopted by the Airport Environs Planning Commission are only liable for any costs, fees, or awards arising from their ministerial acts./
Amend title to conform.
Senator RUSSELL explained the amendment.
There being no further amendments, the Bill was read the third time and ordered returned to the House of Representatives with amendments.
The following Joint Resolution having been read the second time was ordered placed on the third reading Calendar:
H. 4231 -- Medical, Military, Public and Municipal Affairs Committee: A JOINT RESOLUTION TO APPROVE REGULATIONS OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, RELATING TO EMERGENCY MEDICAL SERVICES, DESIGNATED AS REGULATION DOCUMENT NUMBER 1848, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.
On motion of Senator MOORE, H. 4231 was ordered to receive a third reading on the next legislative day.
S. 899 -- Senator Land: A BILL TO AMEND SECTION 59-53-1900, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO TWO OR MORE SCHOOL DISTRICTS JOINING TO CREATE VOCATIONAL SCHOOL BOARDS AND THE MEMBERSHIP OF THESE VOCATIONAL SCHOOL BOARDS SO AS TO PROVIDE THAT THE SUPERINTENDENTS OF PARTICIPATING SCHOOL DISTRICTS SHALL SERVE AS VOTING MEMBERS RATHER THAN AS NONVOTING MEMBERS OF THESE BOARDS AND TO FURTHER PROVIDE FOR THE OTHER ORGANIZATIONAL MATTERS REGARDING THESE BOARDS.
Senator LAND asked unanimous consent to table the Bill.
There was no objection.
The Bill was tabled.
THE CALL OF THE UNCONTESTED CALENDAR HAVING BEEN COMPLETED, THE SENATE PROCEEDED TO THE INTERRUPTED DEBATE.
H. 3901 -- Reps. Harrell, Fleming, Cobb-Hunter, Seithel, A. Young, Limbaugh, Wilkins, Wofford, Hallman, H. Brown, Cain, Cotty, Martin, D. Smith, Fulmer, L. Whipper, Shissias, Quinn, McCraw, Knotts, Stuart, Harrison, Sheheen, Huff, Klauber, Beatty, Limehouse, Whatley, Harwell, Hodges, J. Young, Govan, Herdklotz, Jennings, Richardson, Hutson, Delleney and McElveen: A BILL TO AMEND SECTION 12-51-90, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE REDEMPTION OF REAL PROPERTY SOLD FOR DELINQUENT TAXES, SO AS TO INCREASE THE INTEREST RATE FROM EIGHT TO TWELVE PERCENT IN THE LAST SIX MONTHS OF THE REDEMPTION PERIOD FOR ALL REAL PROPERTY NOT ASSESSED AS OWNER-OCCUPIED RESIDENTIAL PROPERTY.
The Senate proceeded to a consideration of the Bill. The question being the adoption of Amendment No. 12 (3901R014.ELP) proposed by Senators PASSAILAIGUE, McCONNELL and ROSE and previously printed in the Journal of May 31, 1995.
Senator LEATHERMAN argued contra to the adoption of the amendment.
On motion of Senator PASSAILAIGUE, with unanimous consent, Amendment No. 12 was withdrawn.
Senator PASSAILAIGUE proposed the following Amendment No. 14 (3901R015.ELP):
Amend the bill, as and if amended, by striking all after the enacting words and inserting in lieu thereof the following:
SECTION 1. The State Election Commission shall conduct a statewide referendum on November 7, 1995, on the question of raising the sales tax in order to provide property tax relief. The state election laws apply to this referendum, mutatis mutandis. The commission shall canvass the results of the referendum and certify the results to the director of the Department of Revenue and Taxation and the Code Commissioner. The referendum question must read substantially as follows:
"Do you favor raising the statewide sales, use, and casual excise tax rate from five to six percent and providing for a refundable individual income tax credit of seventy-five dollars per return with each state return filed which will be reduced by five dollars of credit for every thousand dollars of state taxable income in excess of one thousand dollars in order to grant owner-occupied residential property an exemption from all property taxes levied for operating purposes except those levied pursuant to referendum and those levied by special purpose or public service districts and county special tax districts?
Those voting in favor of the question shall deposit a ballot with a check or cross mark in the square after the word 'Yes', and those voting against the question shall deposit a ballot with a check or cross mark in the square after the word 'No'."
SECTION 1. A. Article 3, Chapter 7, Title 12 of the 1976 Code is amended by adding:
"Section 12-7-220. There is allowed a refundable credit against the tax due imposed pursuant to Section 12-7-210 in an amount equal to seventy-five dollars for each individual income tax return filed. This credit is reduced by an amount equal to five dollars for each one thousand dollars of taxable income in excess of one thousand dollars on the taxpayer's South Carolina individual income tax return."
SECTION 2. Chapter 36, Title 12 of the 1976 Code is amended by adding:
Section 12-36-1110. An additional sales, use, and casual excise tax equal to one percent is imposed on amounts taxable pursuant to this chapter. Revenue of the tax imposed pursuant to this article must be credited to the Property Tax Relief Fund in the State Treasury, a fund separate and distinct from the general fund of the State.
Section 12-36-1120. (A) The revenues in the Property Tax Relief Fund must be distributed quarterly beginning October first of each year by the Comptroller General to reimburse property taxing jurisdictions a sum equal to that not collected in the jurisdiction for property tax year 1996 because of Section 12-37-257. If insufficient revenues are available in the Property Tax Relief Fund to pay the required reimbursements, the Comptroller General shall pay the difference from the general fund of the State. County treasurers and municipal governing bodies where appropriate shall file quarterly reports of estimated revenue losses with the Comptroller General in the manner and at the time the Comptroller General directs. After making any changes necessary to ensure accuracy, the Comptroller General shall make reimbursements based on these estimates. The final accounting for the fiscal year must be filed in the manner provided for homestead exemption reimbursements in Section 12-37-270, mutatis mutandis. For purposes of future distributions, property tax year 1996 is deemed the base year.
(B) Reimbursements for subsequent tax years must equal the base year reimbursement from all sources. The school portion is determined by multiplying revenues above the adjusted base year amount by the ratio that school tax reimbursements represented of total reimbursements from the Property Tax Relief Fund for tax year 1996. These funds must be distributed to school districts through the provisions of the Education Finance Act. The remaining share for local governments must be distributed in the manner provided in Chapter 27 of Title 6."
SECTION 3. Section 12-36-940 of the 1976 Code is amended to read:
"Section 12-36-940. Every retailer may add to the sales price:
(1) no amount on sales of ten cents or less;
(2) one cent on sales of eleven cents and over, but not in excess of twenty cents;
(3) two cents on sales of twenty-one cents and over, but not in excess of forty cents;
(4) three cents on sales of forty-one cents and over, but not in excess of sixty cents;
(5) four cents on sales of sixty-one cents and over, but not in excess of eighty cents;
(6) five cents on sales of eighty-one cents and over, but not in excess of one dollar;
(7) one cent additional for each twenty cents or major fraction thereon in excess of one dollar.
The inability, impracticability, refusal, or failure to add these amounts to the sales price and collect from the purchaser does not relieve the taxpayer from the tax levied by this article.
A retailer may add the amount of the tax to the sales price and the department shall prescribe tables providing the amount to be added to the sales price consistent with the total rate of the tax."
SECTION 4. A. The gross proceeds of sales of tangible personal property delivered after June 30, 1996, in this State, either under the terms of a construction contract executed before July 1, 1996, or a written bid submitted before July 1, 1996, culminating in a construction contract entered into before or after July 1, 1996, are exempt from the tax provided in Section 12-36-1110 of the 1976 Code if a verified copy of the contract is filed with the South Carolina Department of Revenue and Taxation before January 1, 1997.
B. Notwithstanding the date of general imposition of the tax imposed pursuant to Section 12-36-1110 of the 1976 Code, with respect to services that are regularly billed on a monthly basis, the tax is imposed beginning on the first day of the billing period beginning on or after July 1, 1996.
SECTION 5. Section 11-11-140(D) of the 1976 Code is amended to read:
"(D) Appropriations from surplus may not be made before the first meeting of the General Assembly following the Comptroller General's closing of the books on the fiscal year in which the surplus occurred and may be appropriated only for nonrecurring purposes. The provisions of this subsection do not apply to appropriations to cover midyear shortfalls in the Property Tax Relief Fund as established pursuant to Article 11, Chapter 36 of Title 12."
SECTION 6. In each county of the State in which the local option sales and use tax is not imposed, the referendum provided in Section 4-10-30 of the 1976 Code must be held on November 7, 1995. If the question is approved, the tax is imposed in the county in the manner provided by law. In each county in which is imposed the local option sales tax, the referendum provided in Section 4-10-35 of the 1976 Code must be held on November 7, 1995. If the question is approved, the tax is rescinded in the county in the manner provided by law.
SECTION 1. A. Article 3, Chapter 37, Title 12 of the 1976 Code is amended by adding:
"Section 12-37-257. In addition to any other homestead exemption allowed by law, one hundred percent of the fair market value of every homestead qualifying for the assessment ratio provided pursuant to Section 12-43-220(c) is exempt from all ad valorem taxes except ad valorem taxes levied as follows:
(1) for debt service and for payments pursuant to lease-purchase agreements;
(2) by special purpose or public service districts;
(3) county special tax districts;
(4) ad valorem taxes levied pursuant to a referendum in which a majority of the qualified electors of the jurisdiction voting in the referendum voted in favor of levying the taxes."
B. Subject to Part I of this act, Section 12-37-257 of the 1976 Code, as added by this section, is effective for property tax years beginning after 1995.
SECTION 2. Chapter 29, Title 4 of the 1976 Code is amended by adding:
"Section 4-29-72. For agreements executed after June 30, 1996, the provisions of Section 4-29-67 apply regardless of the amount of the project investment."
SECTION 3. Section 4-29-10(3) of the 1976 Code is amended to read:
"(3) 'Project' means any land and any buildings and other improvements on the land including, without limiting the generality of the foregoing, water, sewage treatment and disposal facilities, air pollution control facilities, and all other machinery, apparatus, equipment, office facilities, and furnishing which are considered necessary, suitable, or useful by the following or any combination thereof: (a) any enterprise for the manufacturing, processing, or assembling of any agricultural or manufactured products and facilities for an enterprise engaged in the sale or distribution to the public of electricity, gas, or telephone services; (b) any commercial enterprise engaged in storing, warehousing, distributing, transporting, or selling products of agriculture, mining, or industry, or engaged in providing laundry services to hospitals, to convalescent homes, or to medical treatment facilities of any type, public or private, within or outside of the issuing county or incorporated municipality and within or outside of the State; (c) any enterprise for research in connection with any of the foregoing or for the purpose of developing new products or new processes or improving existing products or processes; (d) any enterprise engaged in commercial business including, but not limited to, wholesale, retail, or other mercantile establishments; office buildings; computer centers; tourism, sports, and recreational facilities; convention and trade show facilities; and public lodging and restaurant facilities if the primary purpose is to provide service in connection with another facility qualifying under this subitem; and (e) any enlargement, improvement, or expansion of any existing facility in subitems (a), (b), (c), and (d) of this item. The term 'project' does not include facilities for an enterprise primarily engaged in the sale or distribution to the public of electricity, gas, or telephone services. A project may be located in one or more counties or incorporated municipalities. The term 'project' also includes any structure, building, machinery, system, land, interest in land, water right, or other property necessary or desirable to provide facilities to be owned and operated by any person, firm, or corporation for the purpose of providing drinking water, water, or wastewater treatment services or facilities to any public body, agency, political subdivision, or special purpose district."
SECTION 1. The following provisions of this act take effect upon approval by the Governor or as otherwise provided:
The remaining provisions of this act take effect July 1, 1996, or as otherwise provided but only upon the certification of the State Election Commission to the Code Commissioner and the Department of Revenue and Taxation of a majority "yes" vote in the referendum provided by this section./
Amend title to conform.
Senator PASSAILAIGUE explained the amendment.
Senator MOORE made the point that a quorum was not present. It was ascertained that a quorum was not present.
Senator MOORE moved that a Call of the Senate be made. The following Senators answered the call:
Alexander Boan Bryan Cork Courson Courtney Drummond Elliott Ford Giese Glover Gregory Hayes Holland Jackson Land Lander Leatherman Leventis Martin Matthews McConnell McGill Mescher Moore O'Dell Passailaigue Patterson Peeler Rankin Reese Richter Rose Russell Ryberg Saleeby Setzler Short Smith, G. Smith, J.V. Stilwell Thomas Waldrep Washington Williams Wilson
A quorum being present, the Senate resumed.
With Senator PASSAILAIGUE retaining the floor, Senator DRUMMOND was recognized to report on the status of the work of the Committee of Conference on H. 3362, the General Appropriation Bill. Senator PEELER reported on the status of the work of the Committee of Conference.
Senator J. VERNE SMITH spoke on the report.
The Senate resumed consideration of H. 3901.
With Senator PASSAILAIGUE retaining the floor, Senator COURSON asked unanimous consent to make a motion that the Senate stand in recess.
Debate was interrupted by recess.
At 12:10 P.M., on motion of Senator COURSON, the Senate receded from business until 1:45 P.M.
The Senate reassembled at 1:45 P.M. and was called to order by the PRESIDENT.
S. 90 -- Senators Wilson, Rose, Giese and Elliott: A BILL TO AMEND SECTION 16-11-330, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE CRIMES OF ARMED ROBBERY AND ATTEMPTED ARMED ROBBERY, SO AS TO EXTEND THE OFFENSE TO CASES IN WHICH A PERSON ALLEGES HE IS ARMED WHILE USING A REPRESENTATION OF A DEADLY WEAPON OR AN OBJECT WHICH A PERSON MAY REASONABLY BELIEVE TO BE A DEADLY WEAPON.
Senator COURSON, having notified the PRESIDENT that he was withdrawing as a member of Committee of Conference on the Part of the Senate on Senate Bill S. 90, the PRESIDENT appointed Senator STILWELL.
S. 96 -- Senators McConnell, Rose, Wilson, Giese and Courson: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 16-13-175 SO AS TO PROVIDE THAT A MOTOR VEHICLE USED AND OWNED BY A PERSON IN THE THEFT OF PROPERTY MAY BE CONFISCATED.
The House returned the Bill with amendments.
Senator McCONNELL proposed the following amendment (96R001.GFM), which was adopted:
Amend the bill, as and if amended, by adding an appropriately numbered new SECTION to read:
/SECTION ____. In order to preserve public safety and provide appropriate staging space in the areas adjacent to the Capitol Complex during the period of the State House Renovation Project, notwithstanding any provision of law or ordinance to the contrary, the Department of Transportation is empowered and directed to take appropriate steps regarding traffic routing and flow and pedestrian access in the area around the Capitol Complex as directed by the committee established by Section 2 of an act of 1995 bearing ratification no. 62./
Amend title to conform.
Senator McCONNELL explained the amendment.
There being no further amendments, the Bill was amended and ordered returned to the House with amendments.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it concurs in the amendments proposed by the Senate to:
S. 96 -- Senators McConnell, Rose, Wilson, Giese and Courson: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 16-13-175 SO AS TO PROVIDE THAT A MOTOR VEHICLE USED AND OWNED BY A PERSON IN THE THEFT OF PROPERTY MAY BE CONFISCATED.
and has ordered the Bill Enrolled for Ratification.
Very respectfully,
Speaker of the House
Received as information.
S. 264 -- Senators Stilwell, Moore, Rose and Jackson: A BILL TO AMEND SECTION 1-3-220, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE GOVERNOR FILLING VACANCIES IN AN OFFICE OF THE EXECUTIVE DEPARTMENT BY APPOINTMENT UNDER CERTAIN CONDITIONS, SO AS TO EXCLUDE THE OFFICE OF LIEUTENANT GOVERNOR BECAUSE THE MANNER IN WHICH VACANCIES IN THIS OFFICE ARE FILLED ARE PROVIDED FOR IN OTHER PROVISIONS OF LAW; SECTION 1-3-240, AS AMENDED, RELATING TO THE REMOVAL OF STATE AND COUNTY OFFICERS, BY THE GOVERNOR, SO AS TO REVISE A REFERENCE TO THE DEPARTMENT OF REVENUE AND TAXATION AND ITS COMMISSION; SECTION 1-7-920, RELATING TO THE COMMISSION ON PROSECUTION COORDINATION, SO AS TO CORRECT A REFERENCE TO A REPRESENTATIVE ON THE COMMISSION FROM THE DEPARTMENT OF PUBLIC SAFETY; SECTION 1-7-940, RELATING TO THE DUTIES OF THE COMMISSION ON PROSECUTION COORDINATION, SO AS TO REQUIRE THE COMMISSION TO PROVIDE TRAINING FOR VICTIM/WITNESS ASSISTANCE UNITS WITHIN THE SOLICITORS' OFFICES; SECTION 1-11-310, AS AMENDED, RELATING TO THE DIVISION OF MOTOR VEHICLE MANAGEMENT OF THE STATE BUDGET AND CONTROL BOARD, SO AS TO CONFORM REFERENCES TO THE RESTRUCTURING ACT; SECTION 1-19-60, RELATING TO THE COMPOSITION OF THE STATE DEVELOPMENT BOARD, SO AS TO PROVIDE THAT ONE OF THE GUBERNATORIAL APPOINTEES MAY BE THE DIRECTOR OF THE DEPARTMENT OF COMMERCE OR HIS DESIGNEE RATHER THAN A MEMBER OF THE STATE DEVELOPMENT BOARD; SECTION 1-23-10, RELATING TO DEFINITIONS UNDER THE STATE REGISTER AND CODE OF REGULATIONS, SO AS TO PROVIDE THAT THE DEFINITION OF "REGULATION" DOES NOT INCLUDE RULES OF THE DEPARTMENT OF PROBATION, PAROLE AND PARDON SERVICES; SECTION 1-23-111, RELATING TO THE PROCESS FOR PROMULGATING REGULATIONS, SO AS TO AUTHORIZE THE CHAIRMAN OF THE BOARD OF A DEPARTMENT TO DESIGNATE A MEMBER OF THE BOARD TO PRESIDE DURING SUCH HEARINGS; SECTION 1-23-600, AS AMENDED, RELATING TO HEARINGS AND PROCEDURES UNDER THE ADMINISTRATIVE LAW JUDGE DIVISION, SO AS TO PROVIDE THAT ALL DECISIONS OF THE DEPARTMENT OF REVENUE MUST BE MADE PUBLIC EXCEPT WHERE REDACTED COPIES ARE WARRANTED AND TO CLARIFY THE TYPES OF HEARINGS OVER WHICH ADMINISTRATIVE LAW JUDGES SHALL PRESIDE; SECTION 1-30-10, RELATING TO THE DEPARTMENTS OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT, SO AS TO CORRECT A REFERENCE TO THE DEPARTMENT OF PROBATION, PAROLE AND PARDON SERVICES; SECTION 1-30-25, RELATING TO THE DEPARTMENT OF COMMERCE, SO AS TO CHANGE THE NAME OF THE DIVISION OF AERONAUTICS TO THE STATE AVIATION ADMINISTRATION; SECTION 1-30-35, RELATING TO THE DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS, SO AS TO CORRECT CERTAIN CITATIONS TO PROVISIONS OF THE 1976 CODE CONTAINED IN THIS SECTION; SECTION 1-30-85, RELATING TO THE DEPARTMENT OF PROBATION, PARDON AND PAROLE, SO AS TO CORRECT THE NAME OF THE DEPARTMENT TO THE DEPARTMENT OF PROBATION, PAROLE AND PARDON SERVICES; TO AMEND SECTION 2-7-73, AS AMENDED, RELATING TO LEGISLATIVE ENACTMENTS AND THE REQUIREMENT THAT BILLS AND RESOLUTIONS MANDATING HEALTH INSURANCE COVERAGE MUST HAVE FISCAL IMPACT STATEMENTS, SO AS TO DELETE CERTAIN LANGUAGE WHICH PREVIOUSLY REFERRED TO THE FORMER "CHIEF INSURANCE COMMISSIONER"; SECTION 2-13-190, AS AMENDED, RELATING TO THE DISTRIBUTION OF THE ANNUAL ACTS AND JOINT RESOLUTIONS OF THE GENERAL ASSEMBLY, SO AS TO CORRECT THE REFERENCES TO CERTAIN OFFICIALS TO WHOM THESE ACTS AND JOINT RESOLUTIONS ARE PROVIDED AND TO FURTHER PROVIDE FOR THEIR DISTRIBUTION; SECTION 2-13-240, AS AMENDED, RELATING TO THE DISTRIBUTION OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, SO AS TO CORRECT THE REFERENCES TO CERTAIN OFFICIALS TO WHOM THESE CODES ARE PROVIDED AND TO FURTHER PROVIDE FOR THEIR DISTRIBUTION; SECTION 2-19-10, RELATING TO THE JOINT COMMITTEE TO REVIEW CANDIDATES FOR OFFICES ELECTED BY THE GENERAL ASSEMBLY, SO AS TO REFER TO AN EXCEPTION CONTAINED IN THE RESTRUCTURING ACT PERTAINING TO THE ELECTION OF MEMBERS OF THE PUBLIC SERVICE COMMISSION; SECTION 4-10-25, AS AMENDED, RELATING TO THE EXEMPTION OF GROSS PROCEEDS OF SALES OF TANGIBLE PERSONAL PROPERTY FROM THE LOCAL SALES AND USE TAX, SO AS TO CHANGE REFERENCES TO CONFORM TO THE RESTRUCTURING ACT; SECTION 4-10-60, AS AMENDED, RELATING TO THE WITHHOLDINGS FROM THE AMOUNT OF SALES AND USE TAX COLLECTED BY COUNTIES, SO AS TO CHANGE REFERENCES TO CONFORM TO THE RESTRUCTURING ACT; SECTION 4-10-65, RELATING TO THE DISTRIBUTION OF UNIDENTIFIED LOCAL SALES AND TAX REVENUES, SO AS TO CHANGE A REFERENCE TO TAX COMMISSION TO CONFORM TO THE RESTRUCTURING ACT; SECTION 4-10-80, AS AMENDED, RELATING TO REPORTS OF THE TOTAL AMOUNT OF REVENUE COLLECTED FROM THE LOCAL SALES AND USE TAX, SO AS TO CHANGE REFERENCES TO CONFORM TO THE RESTRUCTURING ACT; SECTION 4-10-90, AS AMENDED, RELATING TO ADMINISTRATION OF THE LOCAL SALES AND USE TAX BY THE DEPARTMENT OF REVENUE, SO AS TO CHANGE REFERENCES TO CONFORM TO THE RESTRUCTURING ACT; SECTION 4-29-67, AS AMENDED, RELATING TO THE FEE REQUIRED IN LIEU OF TAXES FOR INDUSTRIAL DEVELOPMENT PROJECTS, SO AS TO CHANGE REFERENCES TO CONFORM TO THE RESTRUCTURING ACT; SECTION 4-29-69, RELATING TO THE FEE IN LIEU OF PROPERTY TAXES ALLOWED CERTAIN INDUSTRIAL DEVELOPMENT PROJECTS, SO AS TO CONFORM REFERENCES TO THE RESTRUCTURING ACT; SECTION 6-19-30, RELATING TO AN ADVISORY COMMITTEE FOR STATE WATER AND SEWER AUTHORITY GRANTS, SO AS TO REVISE THE TITLE OF THE ADMINISTRATIVE HEAD OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL AND TO DELETE OBSOLETE LANGUAGE; SECTION 9-1-1535, RELATING TO RETIREMENT OF WILDLIFE CONSERVATION OFFICERS, SO AS TO REVISE THE NAMES OF THE OFFICERS, THE LAW ENFORCEMENT SECTION, AND THE WILDLIFE AND MARINE RESOURCES DEPARTMENT; SECTION 10-1-100, RELATING TO REQUIREMENTS IN STATE CONTRACTS FOR APPLICABLE POLLUTION PREVENTION AND NATURAL RESOURCE PROTECTION REQUIREMENTS, SO AS TO CONFORM A REFERENCE TO THE HIGHWAY DEPARTMENT TO THE RESTRUCTURING ACT; SECTION 11-9-825, AS AMENDED, RELATING TO ADDITIONAL STAFF FOR THE BOARD OF ECONOMIC ADVISORS, SO AS TO CONFORM THE REFERENCE TO THE CHAIRMAN OF THE DEPARTMENT OF REVENUE TO THE PROVISIONS OF THE RESTRUCTURING ACT EFFECTIVE FEBRUARY 1, 1995; SECTION 11-35-1520, AS AMENDED, RELATING TO COMPETITIVE SEALED BIDS, SO AS TO CHANGE THE NAME OF THE DIVISION OF AERONAUTICS TO THE STATE AVIATION ADMINISTRATION; SECTION 12-4-15, RELATING TO THE DIVISIONS OF THE DEPARTMENT OF REVENUE, SO AS TO DELETE THE STATUTORY DIVISIONS; SECTION 12-4-30, AS AMENDED, RELATING TO THE COMMISSIONERS OF THE DEPARTMENT OF REVENUE, SO AS TO PROVIDE REQUIREMENTS FOR THE DEPARTMENT'S DIRECTOR; TO AMEND SECTIONS 12-4-40, 12-4-50, 12-4-60, AND 12-4-70, AS AMENDED, RELATING TO THE TAX COMMISSION, SO AS TO REVISE REFERENCES TO THE COMMISSIONER AND COMMISSION; SECTION 12-4-340, AS AMENDED, RELATING TO THE AUTHORITY OF THE DEPARTMENT OF REVENUE TO CONTRACT WITH A COLLECTION AGENCY TO COLLECT DELINQUENT TAXES, SO AS TO CONFORM A REFERENCE TO THE RESTRUCTURING ACT; SECTION 12-4-760, RELATING TO APPEALS FROM THE TAX COMMISSION TO THE TAX BOARD OF REVIEW, SO AS TO CHANGE REFERENCES OF THE TAX COMMISSION TO THE ADMINISTRATIVE LAW JUDGE DIVISION AND CHANGE REFERENCES TO THE TAX BOARD OF REVIEW TO THE CIRCUIT COURT; SECTION 12-21-2423, AS AMENDED, RELATING TO THE TEMPORARY DEDICATION OF A PORTION OF ADMISSIONS TAX REVENUES TO THE DEVELOPMENT OF MAJOR TOURISM OR RECREATION FACILITY, SO AS TO CONFORM REFERENCES TO VARIOUS STATE AGENCIES TO THE RESTRUCTURING ACT AND TO DELETE ADVISORY FROM THE NAME OF THE ADVISORY COORDINATING COUNCIL FOR ECONOMIC DEVELOPMENT OF THE DEPARTMENT OF COMMERCE; SECTION 12-21-2720, AS AMENDED, RELATING TO FEES FOR COIN-OPERATED MACHINES AND DEVICES, SO AS TO CONFORM REFERENCES TO TAX COMMISSION TO THE RESTRUCTURING ACT; SECTION 12-21-2738, AS AMENDED, RELATING TO THE PENALTIES FOR VIOLATION OF THE COIN-OPERATED DEVICE LICENSING LAWS, SO AS TO CONFORM A REFERENCE TO THE RESTRUCTURING ACT; ARTICLE 20, CHAPTER 21, TITLE 12, THE VIDEO GAME MACHINES ACT, SO AS TO CONFORM REFERENCES IN THE ARTICLE TO THE SOUTH CAROLINA TAX COMMISSION TO THE PROVISIONS OF THE RESTRUCTURING ACT; SECTIONS 12-21-5020, 12-21-5030, 12-21-5040, 12-21-6010, 12-21-6040, AND 12-21-6050, RELATING TO THE MARIJUANA AND CONTROLLED SUBSTANCE TAX ACT, SO AS TO CHANGE REFERENCES TO THE TAX COMMISSION TO CONFORM TO THE RESTRUCTURING ACT; SECTION 12-27-390, AS AMENDED, RELATING TO THE DISTRIBUTION TO COUNTIES OF A PORTION OF GASOLINE TAXES THROUGH THE WATER RECREATIONAL RESOURCES FUND, SO AS TO CHANGE REFERENCES TO THE DEPARTMENT OF WILDLIFE AND MARINE RESOURCES TO THE PROVISIONS OF THE RESTRUCTURING ACT EFFECTIVE JULY 1, 1994; SECTION 12-27-400, AS AMENDED, RELATING TO THE USE OF "C" FUNDS, SO AS TO CONFORM REFERENCES TO STATE AGENCIES TO THE RESTRUCTURING ACT; SECTION 12-27-1270, AS AMENDED, RELATING TO THE PORTION OF THE SHIMS GASOLINE TAX REVENUES SET ASIDE IN THE ECONOMIC DEVELOPMENT ACCOUNT, SO AS TO CONFORM THE REFERENCE TO THE COORDINATING COUNCIL FOR ECONOMIC DEVELOPMENT TO THE APPROPRIATE DIVISION OF THE DEPARTMENT OF COMMERCE AND TO DELETE AN OBSOLETE PROVISION; SECTION 12-36-1710, AS AMENDED, RELATING TO THE ECONOMIC DEVELOPMENT ACCOUNT, SO AS TO REVISE THE REFERENCE TO THE DEPARTMENT OF REVENUE AND TAXATION AND CHANGE THE NAME OF THE DIVISION OF AERONAUTICS TO THE STATE AVIATION ADMINISTRATION; SECTION 12-36-2570, AS AMENDED, RELATING TO THE TIME OF PAYMENT OF SALES AND USE TAX, SO AS TO CONFORM REFERENCES TO THE RESTRUCTURING ACT; SECTION 12-36-2610, AS AMENDED, RELATING TO THE DISCOUNT ALLOWED FOR TIMELY PAYMENT OF THE SALES TAX, SO AS TO CONFORM REFERENCE TO THE TAX COMMISSION TO THE RESTRUCTURING ACT; SECTION 12-37-930, AS AMENDED, RELATING TO VALUATION OF PROPERTY AND THE DEPRECIATION SCHEDULE FOR MANUFACTURING MACHINERY FOR PURPOSES OF AD VALOREM TAXATION, SO AS TO CHANGE REFERENCES TO CONFORM TO THE RESTRUCTURING ACT; SECTION 12-37-2680, AS AMENDED, RELATING TO THE DETERMINATION OF ASSESSED VALUE OF A VEHICLE, SO AS TO PROVIDE THAT AN APPEAL MUST BE MADE TO THE ADMINISTRATIVE LAW JUDGE DIVISION WITHIN THIRTY DAYS OF THE BOARD'S DECISION AND TO FURTHER PROVIDE THAT APPEALS ARE CONFINED TO THE RECORD; SECTION 12-43-300, AS AMENDED, RELATING TO BOARD OF ASSESSMENT APPEALS, SO AS TO PROVIDE THAT ANY PROPERTY OWNER, HIS AGENT, OR THE ASSESSOR MAY APPEAL FROM THE FINDING OF THE BOARD UPON WRITTEN NOTICE TO THE ADMINISTRATIVE LAW JUDGE DIVISION WITHIN THIRTY DAYS FROM THE DATE OF THE BOARD'S FINDING AND TO FURTHER PROVIDE THAT APPEALS ARE CONFINED TO THE RECORD; SECTION 12-53-220, AS AMENDED, RELATING TO TAX COLLECTION AND POSTING OF BONDS FOR JEOPARDY ASSESSMENTS, SO AS TO CORRECTLY SET FORTH THE NAME OF THE DEPARTMENT OF INSURANCE OF SOUTH CAROLINA; SECTION 13-1-10, RELATING TO THE DEPARTMENT OF COMMERCE, SO AS TO CHANGE THE DIVISION NAMES FROM DIVISION OF AERONAUTICS TO STATE AVIATION ADMINISTRATION AND FROM ADVISORY COORDINATING COUNCIL FOR ECONOMIC DEVELOPMENT TO COORDINATING COUNCIL FOR ECONOMIC DEVELOPMENT; ARTICLE 7, CHAPTER 1 OF TITLE 13, RELATING TO THE DIVISION OF AVIATION, SO AS TO CHANGE THE NAME OF THE DIVISION OF AERONAUTICS TO THE STATE AVIATION ADMINISTRATION; ARTICLE 11 OF CHAPTER 1 OF TITLE 13, AS AMENDED, RELATING TO THE ADVISORY COORDINATING COUNCIL FOR ECONOMIC DEVELOPMENT, SO AS TO DELETE ADVISORY FROM THE NAME OF THE ADVISORY COORDINATING COUNCIL FOR ECONOMIC DEVELOPMENT OF THE DEPARTMENT OF COMMERCE; SECTION 13-17-40, AS AMENDED, RELATING TO THE BOARD OF THE SOUTH CAROLINA RESEARCH AUTHORITY, SO AS TO CORRECT A REFERENCE TO THE FORMER CHAIRMAN OF THE STATE DEVELOPMENT BOARD; SECTION 15-9-410, AS AMENDED, RELATING TO PROVISIONS CONCERNING NONRESIDENT AIRCRAFT OPERATORS, SO AS TO CHANGE THE NAME OF THE DIVISION OF AERONAUTICS TO THE STATE AERONAUTICS ADMINISTRATION; SECTION 16-3-1120, AS AMENDED, RELATING TO THE DIRECTOR OF THE VICTIM'S COMPENSATION FUND, SO AS TO PROVIDE THAT THE DIRECTOR, AFTER CONSULTATION WITH THE CRIME VICTIM'S ADVISORY BOARD, MUST DEVELOP AND ADMINISTER A PLAN FOR INFORMING THE PUBLIC OF THE AVAILABLE BENEFITS; SECTION 16-3-1130, AS AMENDED, RELATING TO CLAIMS UNDER THE VICTIM'S COMPENSATION FUND, SO AS TO CHANGES REFERENCES OF DEPUTY DIRECTOR TO DIRECTOR; SECTION 16-3-1140, AS AMENDED, RELATING TO APPEALS UNDER THE VICTIM'S COMPENSATION FUND, SO AS TO CHANGES REFERENCES OF DEPUTY DIRECTOR TO DIRECTOR; SECTION 16-3-1150, AS AMENDED, RELATING TO EMERGENCY AWARDS UNDER THE VICTIM'S COMPENSATION FUND, SO AS TO CHANGES REFERENCES OF DEPUTY DIRECTOR TO DIRECTOR; SECTION 16-3-1200, RELATING TO THE VICTIM'S COMPENSATION FUND AND THE CONDUCT OF A VICTIM OR INTERVENOR CONTRIBUTING TO INFLICTION OF INJURY, SO AS TO CHANGES REFERENCES OF DEPUTY DIRECTOR TO DIRECTOR; SECTION 16-3-1230, RELATING TO CLAIMS FILED IN BEHALF OF A MINOR OR INCOMPETENT UNDER THE VICTIM'S COMPENSATION FUND, SO AS TO CHANGES REFERENCES OF DEPUTY DIRECTOR TO DIRECTOR; SECTION 16-3-1260, RELATING TO REIMBURSEMENT FOR PAYMENT FROM THE VICTIM'S COMPENSATION FUND, SO AS TO CHANGE THE NAME OF CERTAIN DEPARTMENTS; SECTION 16-3-1300, AS AMENDED, RELATING TO PAYMENT OF AN AWARD UNDER THE VICTIM'S COMPENSATION FUND, SO AS TO CHANGES REFERENCES OF DEPUTY DIRECTOR TO DIRECTOR; SECTION 16-3-1340, AS AMENDED, RELATING TO THE ATTORNEY FOR A CLAIMANT UNDER THE VICTIM'S COMPENSATION FUND, SO AS TO DELETE THE PROVISION REQUIRING ATTORNEYS OF THE WORKERS' COMPENSATION FUND TO REPRESENT THE VICTIM'S COMPENSATION FUND; SECTION 16-3-1410, RELATING TO THE RESPONSIBILITIES OF THE VICTIM COMPENSATION FUND RELATING TO THE VICTIM/WITNESS ASSISTANCE PROGRAM, SO AS TO DELETE THE REQUIREMENT THAT THE FUND PROVIDE TRAINING FOR THE SOLICITORS' OFFICES; SECTION 16-3-1550, AS AMENDED, RELATING TO VICTIM IMPACT STATEMENTS, SO AS TO EXTEND THE PROVISIONS OF THE SECTION TO FAMILY COURT IN CONJUNCTION WITH THE PROSECUTION OF JUVENILE OFFENDERS, TO REQUIRE THE EXECUTIVE DIRECTOR OF THE COMMISSION ON PROSECUTION COORDINATION TO DEVELOP THE FORM RATHER THAN THE ATTORNEY GENERAL, AND TO CORRECT THE NAME OF THE BOARD OF PAROLE AND COMMUNITY CORRECTIONS; SECTION 17-17-100, RELATING TO THE TRANSFER OF WRIT OF HABEAS CORPUS PETITIONS TO THE COURT IN THE COUNTY WHERE THE PRISONER IS LOCATED, SO AS TO CHANGE THE NAME OF THE BOARD OF CORRECTIONS; SECTION 17-22-120, AS AMENDED, RELATING TO INDIVIDUAL INTERVENTION AGREEMENTS ENTERED INTO BY A DEFENDANT AND THE SOLICITOR IN A PRETRIAL INTERVENTION PROGRAM, SO AS TO CONFORM A REFERENCE TO THE COMMISSION ON ALCOHOL AND DRUG ABUSE TO THE RESTRUCTURING ACT; SECTION 17-25-80, RELATING TO THE AUTHORITY OF THE COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS REGARDING HARD LABOR, SO AS TO CHANGE THE NAME OF THE COMMISSIONER; SECTION 17-25-145, RELATING TO IMPLEMENTATION OF COMMUNITY PENALTIES PROGRAM, SO AS TO CHANGE THE NAME OF THE DEPARTMENT OF PAROLE AND COMMUNITY CORRECTIONS; SECTION 17-25-370, RELATING TO EXECUTION OF DEATH SENTENCE, SO AS TO CHANGE THE NAME OF THE COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS; SECTION 17-25-380, RELATING TO COPIES AND FORM OF NOTICE OF DEATH PENALTY, SO AS TO CHANGE THE NAME OF THE COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS; SECTION 17-25-400, RELATING TO SERVICE OF NOTICE ON PRISONER, SO AS TO CHANGE THE NAME OF THE COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS; SECTION 20-7-640, RELATING TO THE DUTIES OF THE DEPARTMENT OF SOCIAL SERVICES, SO AS TO DELETE THE REQUIREMENT THAT THE COUNTY BOARD APPOINT AN ADVISORY COMMITTEE; SECTION 20-7-690, AS AMENDED, RELATING TO CONFIDENTIALITY OF DEPARTMENT OF SOCIAL SERVICES RECORDS, SO AS TO REVISE THE NAME OF THE ADMINISTRATIVE HEAD OF THE DEPARTMENT; SECTION 20-7-2020, RELATING TO APPROVAL OF AGREEMENTS UNDER THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN, SO AS TO REVISE THE TITLE OF THE ADMINISTRATIVE HEAD OF THE DEPARTMENT OF SOCIAL SERVICES; SECTION 20-7-2340, RELATING TO ADOPTION FEES ESTABLISHED BY THE DEPARTMENT OF SOCIAL SERVICES, SO AS TO REVISE THE AUTHORITY TO ESTABLISH THESE FEES; SECTION 20-7-2379, AS AMENDED, RELATING TO THE DIVISION FOR REVIEW OF FOSTER CARE OF CHILDREN, SO AS TO DELETE THE INAPPLICABLE PROVISION FOR THE DIVISION DIRECTOR'S SALARY; SECTION 20-7-2640, AS AMENDED, RELATING TO THE INTERSTATE COMPACT FOR ADOPTION AND MEDICAL ASSISTANCE, MEDICAL ASSISTANCE IDENTIFICATION, BENEFITS, AND EXCEPTIONS, SO AS TO CLARIFY THAT DEPARTMENT AS USED IN SUBSECTION (C) MEANS THE DEPARTMENT OF SOCIAL SERVICES; SECTION 20-7-2880, AS AMENDED, RELATING TO FAMILY DAY CARE LICENSES, SO AS TO CLARIFY AN ADMINISTRATIVE LAW JUDGE MUST HEAR APPEALS; SECTIONS 20-7-2930 AND 20-7-2940, AS AMENDED, RELATING TO CHURCH DAY CARE CENTERS, SO AS TO CLARIFY THAT APPEALS FROM A REGISTRATION SUSPENSION MUST BE HEARD BY AN ADMINISTRATIVE LAW JUDGE; SECTION 20-7-3230, AS AMENDED, RELATING TO INSTITUTIONAL SERVICES PROVIDED BY THE DEPARTMENT OF JUVENILE JUSTICE, SO AS TO REVISE THE NAME OF THE DEPARTMENT OF YOUTH SERVICES; SECTION 20-7-5420, AS AMENDED, RELATING TO THE STATE COUNCIL ON MATERNAL, INFANT, AND CHILD HEALTH, SO AS TO DELETE CERTAIN OBSOLETE MEMBERS FROM THE COUNCIL AND TO CORRECT CERTAIN REFERENCES; SECTION 20-7-5910, AS AMENDED, RELATING TO THE STATE CHILD FATALITY ADVISORY COMMITTEE, SO AS TO REVISE THE NAMES OF CERTAIN STATE AGENCIES AND THE TITLES OF CERTAIN ADMINISTRATIVE HEADS OF STATE AGENCIES; SECTION 23-4-20, RELATING TO CRIMINAL JUSTICE COMMITTEES AND PROGRAMS OF THE OFFICE OF THE GOVERNOR, SO AS TO PROVIDE THAT THE DIVISION OF PUBLIC SAFETY PROGRAMS REFERRED TO IN THIS SECTION MEANS THE DEPARTMENT OF PUBLIC SAFETY RATHER THAN OF THE OFFICE OF THE GOVERNOR; SECTION 23-4-110, AS AMENDED, RELATING TO THE GOVERNOR'S COMMITTEE ON CRIMINAL JUSTICE, CRIME AND DELINQUENCY, SO AS TO CONFORM THE MEMBERSHIP OF THE COMMITTEE TO THE REVISIONS OF THE RESTRUCTURING ACT; SECTION 23-4-520, RELATING TO THE DUTIES OF THE GOVERNOR'S OFFICE OF CRIMINAL JUSTICE PROGRAMS, SO AS TO CORRECT A REFERENCE TO THE FORMER DEPARTMENT OF YOUTH SERVICES; SECTION 23-6-10, AS AMENDED, RELATING TO DEFINITIONS PERTAINING TO THE DEPARTMENT OF PUBLIC SAFETY, SO AS TO DELETE THE DEFINITION OF "DEPUTY DIRECTOR"; SECTION 23-6-40, AS AMENDED, RELATING TO THE DIRECTOR AND DEPUTY DIRECTORS FOR THE DEPARTMENT OF PUBLIC SAFETY, SO AS TO DELETE THE PROVISIONS FOR DEPUTY DIRECTORS; SECTION 23-9-10, AS AMENDED, RELATING TO THE STATE FIRE MARSHAL, SO AS TO CORRECT AN INTERNAL CODE SECTION REFERENCE; SECTION 23-11-110, AS AMENDED, RELATING TO QUALIFICATIONS OF SHERIFFS, SO AS TO CORRECT A REFERENCE TO THE SOUTH CAROLINA CRIMINAL JUSTICE TRAINING COUNCIL; TO AMEND CHAPTER 25 OF TITLE 23, AS AMENDED, RELATING TO THE LAW ENFORCEMENT OFFICERS HALL OF FAME, SO AS TO CLARIFY THAT THE COMMITTEE IS ADVISORY, TO REQUIRE THE DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY TO SERVE AS CHAIRMAN OF THE COMMITTEE, AND TO MAKE CONFORMING CHANGES THROUGHOUT; TO AMEND SECTION 24-1-10, RELATING TO CONSTRUCTION OF REFERENCES, SO AS TO CONFORM REFERENCES TO THE RESTRUCTURING ACT; SECTION 24-13-730, RELATING TO PROGRAM CHANGES SUBJECT TO APPROPRIATIONS BY THE GENERAL ASSEMBLY, SO AS TO REVISE CODE SECTIONS; SECTION 24-21-300, RELATING TO CITATION AND AFFIDAVIT OF PERSON RELEASED, SO AS TO ADD THE REFERENCE OF OFFENDER MANAGEMENT SYSTEM ACT AND TO CHANGE THE REFERENCE OF BOARD OF PROBATION, PAROLE AND PARDON SERVICES TO DEPARTMENT OF PROBATION, PAROLE AND PARDON SERVICES; SECTION 24-22-30, RELATING TO ELIGIBILITY TO PARTICIPATE IN THE OFFENDER MANAGEMENT SYSTEM, SO AS TO CHANGE THE REFERENCE OF THE BOARD OF PROBATION, PAROLE AND PARDON SERVICES TO THE DEPARTMENT OF PROBATION, PAROLE AND PARDON SERVICES; SECTION 24-22-150, RELATING TO FUNDING REQUIRED, SO AS TO CHANGE THE REFERENCE OF COMMISSION TO DIRECTOR; SECTION 24-23-30, RELATING TO THE COMMUNITY CORRECTIONS PLAN, SO AS TO CHANGE THE REFERENCE OF BOARD OF PROBATION, PAROLE AND PARDON SERVICES TO DEPARTMENT OF PROBATION, PAROLE AND PARDON SERVICES; SECTION 24-26-10, RELATING TO THE SOUTH CAROLINA SENTENCING GUIDELINES COMMISSION, SO AS TO CORRECT REFERENCES TO CERTAIN NONVOTING MEMBERS OF THE COMMISSION; SECTION 25-19-20, RELATING TO THE PRISONER OF WAR COMMISSION, SO AS TO REVISE THE NAME OF THE DEPARTMENT OF VETERANS' AFFAIRS TO CONFORM TO ACT 181 OF 1993, RESTRUCTURING OF STATE GOVERNMENT; SECTION 31-13-30, RELATING TO MEMBERSHIP ON THE SOUTH CAROLINA STATE HOUSING FINANCE AND DEVELOPMENT AUTHORITY, SO AS TO REVISE THE TITLE OF THE ADMINISTRATIVE HEAD OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL; SECTION 31-17-330, RELATING TO EXCEPTIONS FOR MOBILE HOME LICENSES, SO AS TO CHANGE THE NAME OF THE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION TO THE DEPARTMENT OF REVENUE; SECTION 33-14-210, RELATING TO ADMINISTRATIVE DISSOLUTION OF A CORPORATION BY THE SECRETARY OF STATE, SO AS TO CONFORM A REFERENCE TO THE TAX COMMISSION TO THE PROVISIONS OF THE RESTRUCTURING ACT; SECTION 33-39-250, RELATING TO THE POWERS OF COUNTY BUSINESS DEVELOPMENT CORPORATIONS, SO AS TO CONFORM A REFERENCE TO THE STATE DEVELOPMENT BOARD TO THE RESTRUCTURING ACT; SECTION 38-3-110, AS AMENDED, RELATING TO DUTIES OF THE CHIEF INSURANCE COMMISSIONER, SO AS TO PROVIDE THAT REGULATIONS ARE PROMULGATED BY THE COMMISSIONER; SECTION 38-27-520, AS AMENDED, RELATING TO RECOVERY OF PREMIUMS OWED, SO AS TO PROVIDE THAT AN APPEAL IS TO THE CIRCUIT COURT AND NOT THE ADMINISTRATIVE LAW JUDGE DIVISION; SECTION 38-43-106, AS AMENDED, RELATING TO CONTINUING EDUCATION REQUIREMENTS, SO AS TO REESTABLISH THE MEMBERSHIP OF THE CONTINUING EDUCATION ADVISORY COMMITTEE; SECTION 38-73-1380, AS AMENDED, RELATING TO PRIVATE PASSENGER AUTOMOBILE INSURANCE, APPROVAL OF FINAL RATE OR PREMIUM CHARGE, AND APPROVAL OF EXPENSE COMPONENT, SO AS TO DELETE AN INCORRECT REFERENCE TO "THE DIVISION" AND SUBSTITUTE A REFERENCE TO "THE DEPARTMENT", MEANING THE DEPARTMENT OF INSURANCE AND TO CHANGE REFERENCES FROM DIRECTOR TO COMMISSIONER; SECTION 38-77-580, AS AMENDED, RELATING TO THE GOVERNING BOARD OF THE SOUTH CAROLINA REINSURANCE FACILITY, SO AS TO ELIMINATE AN UNNECESSARY REQUIREMENT THAT THE COMMISSIONER OF THE DEPARTMENT OF INSURANCE OR HIS DESIGNEE ACT THROUGH THE DEPARTMENT IN PERFORMING A CERTAIN FUNCTION; SECTION 38-79-270, AS AMENDED, RELATING TO APPEALING ACTIONS OF THE SOUTH CAROLINA MEDICAL MALPRACTICE LIABILITY JOINT UNDERWRITING ASSOCIATION, SO AS TO PROVIDE THAT THE APPEAL IS TO THE COMMISSIONER AND NOT THE DEPARTMENT; SECTION 38-81-270, AS AMENDED, RELATING TO THE LEGAL PROFESSIONAL LIABILITY INSURANCE JOINT UNDERWRITING ASSOCIATION AND THE GATHERING OF DATA, SO AS TO DELETE A REFERENCE TO DEPARTMENT (MEANING THE DEPARTMENT OF INSURANCE) AND SUBSTITUTE COMMISSIONER (MEANING CHIEF INSURANCE COMMISSIONER OF THE DEPARTMENT OF INSURANCE); CHAPTER 23 OF TITLE 39, RELATING TO ADULTERATED, MISBRANDED, OR NEW DRUGS AND DEVICES, SO AS TO CONFORM THE TITLE OF THE ADMINISTRATIVE HEAD OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL TO ACT 181 OF 1993, RESTRUCTURING OF STATE GOVERNMENT; SECTION 40-6-180, AS AMENDED, RELATING TO AUCTIONEERS, SO AS TO REINSERT LANGUAGE TO PROVIDE THAT AN APPRENTICE'S SUPERVISING AUCTIONEER BE NOTIFIED IF CHARGES ARE BROUGHT AGAINST THE APPRENTICE; SECTION 40-15-210, AS AMENDED, RELATING TO THE AUTHORITY OF A PERSON WHOSE LICENSE OR REGISTRATION CERTIFICATE TO PRACTICE DENTISTRY, DENTAL HYGIENE, OR PERFORM DENTAL TECHNOLOGICAL WORK HAS BEEN SUSPENDED OR REVOKED PURSUANT TO THE PROVISIONS OF ARTICLE 5, CHAPTER 23 OF TITLE 1 (ADMINISTRATIVE LAW JUDGE DIVISION), SO AS TO REENACT THE CRIMINAL PENALTY PROVISIONS WHICH WERE INADVERTENTLY OMITTED BY ACT 181 OF 1993 (RESTRUCTURING); SECTION 40-22-150, AS AMENDED, RELATING TO ENGINEERS AND LAND SURVEYORS, SO AS TO PROVIDE THAT THE DIRECTOR OF THE DEPARTMENT OF LABOR, LICENSING, AND REGULATION MAY EMPLOY AN EXECUTIVE DIRECTOR FOR THE BOARD; SECTION 40-25-40, AS AMENDED, RELATING TO RECOMMENDATIONS FOR MEMBERSHIP ON THE COMMISSION OF HEARING AID SPECIALISTS, SO AS TO REVISE THE NAME OF THE COMMISSION ON AGING; SECTION 40-35-10, AS AMENDED, RELATING TO DEFINITIONS CONCERNING THE BOARD OF EXAMINERS FOR NURSING HOME ADMINISTRATORS AND COMMUNITY RESIDENTIAL CARE FACILITY ADMINISTRATORS, SO AS TO CHANGE REFERENCES IN THE DEFINITION OF "QUALIFIED MENTAL RETARDATION PROFESSIONAL" FROM THE SOUTH CAROLINA DEPARTMENT OF MENTAL RETARDATION TO THE DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS; SECTION 40-35-140, AS AMENDED, RELATING TO THE REQUIREMENT THAT HABILITATION CENTERS FOR THE MENTALLY RETARDED MUST BE UNDER THE SUPERVISION OF A LICENSED NURSING HOME ADMINISTRATOR, SO AS TO CHANGE A REFERENCE FROM THE DEPARTMENT OF MENTAL RETARDATION TO THE DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS; SECTION 40-47-140, AS AMENDED, RELATING TO MINIMUM STANDARDS TO BE OBTAINED ON EXAMINATION REQUIRED BY THE BOARD OF MEDICAL EXAMINERS, SO AS TO CHANGE A REFERENCE FROM THE STATE MENTAL RETARDATION DEPARTMENT TO THE DEPARTMENT OF DISABILITIES AND SPECIAL NEEDS; SECTIONS 41-10-70, 41-10-80, 41-10-90, 41-10-110, AS AMENDED, SECTION 41-13-20, SECTION 41-13-25, AS AMENDED, SECTIONS 41-13-50, 41-13-60, 41-15-90, 41-15-100, 41-15-210, 41-15-220, 41-15-230, 41-15-240, 41-15-250, 41-15-260, 41-15-270, 41-15-280, 41-15-290, 41-15-300, SECTION 41-15-320, AS AMENDED, SECTION 41-15-520, SECTIONS 41-16-20, 41-16-40, AS AMENDED, SECTIONS 41-16-50, 41-16-60, 41-16-70, 41-16-80, 41-16-90, SECTIONS 41-16-100, 41-16-110, AS AMENDED, SECTIONS 41-16-120, 41-16-130, SECTION 41-16-140, AS AMENDED, SECTIONS 41-16-150, 41-16-160, SECTION 41-16-180, AS AMENDED, SECTIONS 41-17-10, 41-17-20, 41-17-40, 41-17-50, 41-17-60, 41-17-70, SECTION 41-18-40, AS AMENDED, SECTION 41-18-50, SECTIONS 41-18-60, 41-18-70, 41-18-80, 41-18-100, 41-18-110, AS AMENDED, SECTIONS 41-18-120, 41-18-130, SECTIONS 41-18-150, 41-21-20, AS AMENDED, SECTIONS 41-21-30, 41-21-40, 41-21-70, 41-21-80, 41-21-90, 41-21-100, 41-25-110, RELATING TO THE COMMISSIONER OF LABOR, THE DEPARTMENT OF LABOR, AND VARIOUS DIVISIONS WITHIN THE DEPARTMENT, SO AS TO CONFORM THOSE REFERENCES TO THE PROVISIONS OF SECTION 977 OF ACT 181 OF 1993 (RESTRUCTURING ACT) AND DELETE OBSOLETE PROVISIONS; SECTION 41-43-40, AS AMENDED, RELATING TO THE DIRECTOR OF THE SOUTH CAROLINA JOBS-ECONOMIC DEVELOPMENT AUTHORITY, SO AS TO CONFORM A REFERENCE TO THE CHAIRMAN OF THE STATE DEVELOPMENT BOARD TO THE RESTRUCTURING ACT; SECTION 41-43-190, RELATING TO THE EXPORT PROGRAMS OF THE SOUTH CAROLINA JOBS-ECONOMIC DEVELOPMENT AUTHORITY, SO AS TO CONFORM A REFERENCE TO THE STATE DEVELOPMENT BOARD TO THE RESTRUCTURING ACT; SECTION 41-44-90, AS AMENDED, RELATING TO THE INCOME AND PREMIUM TAX CREDIT ALLOWED A TAXPAYER WITH A QUALIFIED INVESTMENT IN A BUSINESS RECEIVING FINANCING FROM THE PALMETTO SEED CAPITAL FUND, SO AS TO CONFORM REFERENCES TO "COMMISSION" TO THE RESTRUCTURING ACT; SECTION 42-5-60, RELATING TO INSURANCE DEEMED SUBJECT TO TITLE 42 (WORKERS' COMPENSATION) AND APPROVAL OF FORMS, SO AS TO CONFORM A REFERENCE TO THE CHIEF INSURANCE COMMISSIONER; SECTION 43-1-115, RELATING TO COUNTY DEPARTMENT OF SOCIAL SERVICES BIENNIAL PERFORMANCE AUDITS, SO AS TO REVISE THE NAME OF THE ADMINISTRATIVE HEAD OF THE STATE DEPARTMENT AND TO CORRECT A REFERENCE; SECTION 43-5-150, AS AMENDED, RELATING TO APPEALS TO THE DEPARTMENT OF SOCIAL SERVICES FOR DENIAL OF PUBLIC ASSISTANCE, SO AS TO CLARIFY THAN AN ADMINISTRATIVE LAW JUDGE RATHER THAN A HEARING EXAMINER HEARS AN APPEAL PURSUANT TO THE ADMINISTRATIVE PROCEDURES ACT; SECTIONS 43-7-410, 43-7-420, 43-7-430, AND SECTION 43-7-440, AS AMENDED, RELATING TO ASSIGNMENT AND SUBROGATION OF CLAIMS FOR REIMBURSEMENT FOR MEDICAID SERVICES, SO AS TO DELETE REFERENCES TO THE STATE HEALTH AND HUMAN SERVICES FINANCE COMMISSION AND SUBSTITUTE SOUTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECTION 43-21-10, AS AMENDED, RELATING TO THE ADVISORY COMMISSION ON AGING, SO AS TO REVISE THE MEMBERSHIP AND RESPONSIBILITIES; SECTION 43-21-130, AS AMENDED, RELATING TO THE LONG TERM CARE COUNCIL, SO AS TO REVISE THE NAME, MEMBERSHIP, AND RESPONSIBILITIES OF THE COUNCIL; SECTION 43-21-150, AS AMENDED, RELATING TO THE EDUCATIONAL AND INFORMATIONAL PROGRAM OF THE DIVISION ON AGING, SO AS TO REVISE THE REFERENCE TO THE LONG TERM CARE COUNCIL IN ORDER TO CONFORM TO A PRIOR NAME CHANGE; TO AMEND SECTION 43-35-310, RELATING TO THE ADULT PROTECTION COORDINATING COUNCIL, SO AS TO REVISE THE NAME OF THE MEMBER AGENCIES AND ADMINISTRATIVE TITLES; TO AMEND SECTION 44-1-50, AS AMENDED, RELATING TO THE BOARD OF HEALTH AND ENVIRONMENTAL CONTROL HEARING APPEALS FROM THE DECISIONS OF AN ADMINISTRATIVE LAW JUDGE, SO AS TO CORRECT CERTAIN CITATIONS TO PROVISIONS OF THE 1976 CODE CONTAINED IN THIS SECTION; SECTION 44-2-75, AS AMENDED, RELATING TO THE STATE UNDERGROUND PETROLEUM ENVIRONMENTAL RESPONSE BANK ACT OF 1988 AND INSURANCE POOLS, SO AS TO MAKE A TECHNICAL CORRECTION WITH RESPECT TO A REFERENCE TO THE DEPARTMENT OF INSURANCE; SECTION 44-6-5, AS AMENDED, RELATING TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, SO AS TO DELETE A REFERENCE TO COMMISSION AND SUBSTITUTE FOR IT DEPARTMENT UNDER THE DEFINITION OF MARKET BASKET INDEX; SECTION 44-6-60, AS AMENDED, RELATING TO THE ADVISORY COMMITTEE TO THE HEALTH AND HUMAN SERVICES FINANCE COMMISSION, SO AS TO REVISE THE NAMES OF THE DEPARTMENTS REPRESENTED ON THE COMMITTEE AND THE TITLES OF THE DEPARTMENT ADMINISTRATORS; SECTION 44-6-140, AS AMENDED, RELATING TO MEDICAID HOSPITAL PROSPECTIVE PAYMENT SYSTEM AND COST CONTAINMENT MEASURES, SO AS TO DELETE COMMISSION IN TWO INSTANCES AND SUBSTITUTE DEPARTMENT, WITH REFERENCE TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECTION 44-6-146, AS AMENDED, RELATING TO COUNTY ASSESSMENTS FOR INDIGENT MEDICAL CARE AND PENALTIES FOR FAILURE TO PAY ASSESSMENTS IN A TIMELY MANNER, SO AS TO DELETE A REFERENCE TO COMMISSION AND SUBSTITUTE DEPARTMENT, WITH REFERENCE TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECTION 44-6-170, AS AMENDED, RELATING TO THE HEALTH DATA OVERSIGHT COUNCIL, SO AS TO REVISE THE TITLES OF THE ADMINISTRATIVE HEADS OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL AND THE HEALTH AND HUMAN SERVICES FINANCE COMMISSION; SECTION 44-6-520, AS AMENDED, RELATING TO THE SALE, LEASE, OR MORTGAGE OF A NURSING HOME IN RECEIVERSHIP, SO AS TO CHANGE A REFERENCE TO THE HEALTH AND HUMAN SERVICES FINANCE COMMISSION TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECTION 44-6-540, RELATING TO THE REGULATION-MAKING AUTHORITY UNDER THE "INTERMEDIATE SANCTIONS FOR MEDICAID CERTIFIED NURSING HOME ACT", SO AS TO DELETE THE REFERENCE TO COMMISSION (MEANING THE HEALTH AND HUMAN SERVICES FINANCE COMMISSION) AND SUBSTITUTE DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECTIONS 44-6-720 AND 44-6-730, RELATING TO MEDICAID QUALIFYING TRUSTS, SO AS TO REVISE THE NAME OF THE STATE HEALTH AND HUMAN SERVICES FINANCE COMMISSION; SECTION 44-7-90, RELATING TO VIOLATIONS OF THE LAW CONCERNING MEDICAID NURSING HOME PERMITS AND PENALTIES, SO AS TO CLARIFY REFERENCES TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES AND THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL; SECTION 44-7-170, AS AMENDED, RELATING TO EXEMPTIONS FROM THE STATE CERTIFICATION OF NEED AND HEALTH FACILITY LICENSURE ACT, SO AS TO REVISE THE NAME OF THE DEPARTMENT OF MENTAL RETARDATION; SECTION 44-7-370, AS AMENDED, RELATING TO THE APPOINTMENT OF MEMBERS TO THE RESIDENTIAL CARE COMMITTEE, SO AS TO REVISE THE TITLE OF THE DEPARTMENT ADMINISTRATOR; SECTION 44-23-10, AS AMENDED, RELATING TO DEFINITIONS PERTAINING TO MENTALLY ILL AND MENTALLY RETARDED PERSONS, SO AS TO CLARIFY THE DEFINITION OF DIRECTOR; SECTION 44-38-380, AS AMENDED, RELATING TO THE ADVISORY COUNCIL TO THE SOUTH CAROLINA HEAD AND SPINAL CORD SERVICE DELIVERY SYSTEM, SO AS TO REVISE THE NAME OF A MEMBER OF THE COUNCIL AND THE NAME OF THE ADMINISTRATIVE HEAD OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL; SECTION 44-40-60, RELATING TO SOUTH CAROLINA AGENT ORANGE ADVISORY COUNCIL, SO AS TO REVISE THE NAME OF THE DEPARTMENT OF VETERANS AFFAIRS; SECTION 44-53-480, RELATING TO SOUTH CAROLINA LAW ENFORCEMENT DIVISION ENFORCEMENT OF CONTROLLED SUBSTANCE LAWS, SO AS CONFORM REFERENCES TO THE COMMISSION ON ALCOHOL AND DRUG ABUSE TO THE RESTRUCTURING ACT; SECTION 44-53-490, RELATING TO THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL DRUG INSPECTORS, SO AS TO CONFORM A REFERENCE TO THE COMMISSION ON ALCOHOL AND DRUG ABUSE TO THE RESTRUCTURING ACT; SECTION 44-53-500, RELATING TO THE ISSUANCE AND EXECUTION OF ADMINISTRATIVE INSPECTION WARRANTS BY THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL WITH RESPECT TO THE REGULATION OF CONTROLLED SUBSTANCES, SO AS TO CONFORM A REFERENCE TO THE COMMISSION ON ALCOHOL AND DRUG ABUSE TO THE RESTRUCTURING ACT; SECTION 44-53-720, RELATING TO RESTRICTIONS ON THE USE OF METHADONE, SO AS TO CONFORM A REFERENCE TO THE COMMISSION ON ALCOHOL AND DRUG ABUSE TO THE RESTRUCTURING ACT; SECTION 44-55-120, RELATING TO THE SAFE DRINKING WATER ACT, SO AS TO REVISE THE NAME OF THE ADMINISTRATIVE HEAD OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL; SECTION 44-56-60, AS AMENDED, RELATING TO HAZARDOUS WASTE MANAGEMENT, SO AS TO REVISE THE TITLE OF THE ADMINISTRATIVE HEAD OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL; SECTION 44-67-90, RELATING TO THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL'S FUNDS FOR LITTER CONTROL RESEARCH, SO AS TO REVISE THE TITLE OF THE ADMINISTRATIVE HEAD OF THE DEPARTMENT; SECTION 44-96-440, RELATING TO UNLAWFUL ACTS UNDER SOLID WASTE MANAGEMENT, SO AS TO REVISE THE TITLE OF THE ADMINISTRATIVE HEAD OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL; SECTION 46-13-60, AS AMENDED, RELATING TO STANDARDS FOR CERTIFICATION OF PESTICIDE APPLICATORS, SO AS TO CHANGE THE NAME OF THE DIVISION OF AERONAUTICS TO THE STATE AVIATION ADMINISTRATION; SECTION 48-9-30, AS AMENDED, RELATING TO DEFINITIONS PERTAINING TO SOIL AND WATER CONSERVATION DISTRICTS, SO AS TO DEFINE THE ADVISORY COUNCIL; SECTION 48-9-610, AS AMENDED, RELATING TO THE APPOINTMENT OF TWO COMMISSIONERS TO SERVE WITH THE ELECTED COMMISSIONERS OF SOIL AND WATER CONSERVATION DISTRICTS, SO AS TO AUTHORIZE THE BOARD OF THE DEPARTMENT OF NATURAL RESOURCES TO MAKE THE APPOINTMENT; SECTION 48-9-1210, AS AMENDED, RELATING TO THE QUALIFICATIONS OF APPOINTED COMMISSIONERS OF SOIL AND WATER CONSERVATION DISTRICTS, SO AS TO PROVIDE FOR THEIR APPOINTMENT BY THE BOARD OF THE DEPARTMENT OF NATURAL RESOURCES UPON THE RECOMMENDATION OF THE ADVISORY COUNCIL INSTEAD OF BY THE BOARD OF THE DEPARTMENT; SECTION 48-9-1230, AS AMENDED, RELATING TO THE TERMS, VACANCIES, AND REMOVAL OF THE DISTRICT COMMISSIONERS, SO AS TO DELETE OBSOLETE LANGUAGE AND REVISE THE PROCEDURE FOR THE FILLING OF VACANCIES AND FOR REMOVAL; SECTION 48-9-1820, AS AMENDED, RELATING TO THE ELIGIBILITY AND COMPENSATION OF MEMBERS OF BOARDS OF ADJUSTMENT, SO AS TO PROVIDE FOR MEMBERS OF THE ADVISORY COUNCIL INSTEAD OF THE BOARD OF THE DEPARTMENT TO BE INELIGIBLE TO SERVE AND TO CLARIFY REFERENCES TO THE BOARDS OF ADJUSTMENT; SECTION 48-9-1840, AS AMENDED, RELATING TO HARDSHIP PETITIONS FILED WITH BOARDS OF ADJUSTMENT, SO AS TO CLARIFY REFERENCES TO THE BOARDS, AND SECTION 48-9-1850, AS AMENDED, RELATING TO HEARINGS AND ACTION BY THE BOARDS, SO AS TO CLARIFY REFERENCES TO THE BOARDS; SECTION 48-39-150, AS AMENDED, RELATING TO THE APPEALS PROCESS FOR THE DENIAL OF COASTAL ZONE PERMITS; SECTION 48-39-210, AS AMENDED, RELATING TO CRITICAL AREA DELINEATIONS, SO AS TO REVISE THE NAME OF THE COASTAL COUNCIL; SECTION 48-39-280, AS AMENDED, RELATING TO BEACH NOURISHMENT PROJECT PERMITS AND SETBACK LINES; SECTION 48-39-290, AS AMENDED, RELATING TO REBUILDING STRUCTURES OTHER THAN EROSION CONTROL STRUCTURES SEAWARD OF THE BASELINE, SO AS TO CLARIFY THE APPEALS PROCESS AS ESTABLISHED BY THE RESTRUCTURING ACT OF 1993; SECTION 48-49-70, RELATING TO THE MOUNTAIN RIDGE PROTECTION ACT OF 1984, SO AS TO TRANSFER THE JURISDICTION AND MANAGEMENT FROM THE DEPARTMENT OF PARKS, RECREATION AND TOURISM TO THE DEPARTMENT OF NATURAL RESOURCES; SECTION 49-1-15, AS AMENDED, RELATING TO PERMITS FOR HYDROELECTRIC PROJECTS INVOLVING IMPOUNDMENT OR DIVERSION OF WATERS OF NAVIGABLE STREAMS, SO AS TO REQUIRE A PERMIT FROM THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL FOR ANY CONSTRUCTION, ALTERATION, DREDGING, FILLING, OR OTHER ACTIVITY IN ANY WATERS OF NAVIGABLE STREAMS; SECTION 49-4-15, AS AMENDED, RELATING TO THE SOUTH CAROLINA WATER USE REPORTING AND COORDINATION ACT, SO AS TO MAINTAIN THE PROGRAM UNDER THE DEPARTMENT OF NATURAL RESOURCES RATHER THAN TRANSFERRING IT TO THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL AS PROVIDED BY THE RESTRUCTURING ACT OF 1993; SECTION 49-7-70, RELATING TO THE POWERS OF THE BUSHY PARK AUTHORITY, SO AS TO CONFORM A REFERENCE TO THE STATE HIGHWAY DEPARTMENT TO THE RESTRUCTURING ACT; SECTION 50-3-90, AS AMENDED, RELATING TO CONDUCTING GAME AND FISH CULTURAL OPERATIONS, SO AS TO CHANGE A REFERENCE FROM BOARD TO DEPARTMENT; SECTION 50-3-310, AS AMENDED, RELATING TO THE APPOINTMENT OF ENFORCEMENT OFFICERS OF THE NATURAL RESOURCES ENFORCEMENT DIVISION, SO AS TO CLARIFY THAT THE DIRECTOR OF THE DEPARTMENT IS RESPONSIBLE FOR HIRING AND FIRING THE OFFICERS; SECTION 50-3-315, AS AMENDED, RELATING TO DEPUTY ENFORCEMENT OFFICERS OF THE NATURAL RESOURCES ENFORCEMENT DIVISION, SO AS TO REVISE THEIR AUTHORITY; SECTION 50-3-510, AS AMENDED, RELATING TO THE CUTTING OF TIMBER BY THE DEPARTMENT OF NATURAL RESOURCES, SO AS TO CHANGE THE REFERENCES TO WILDLIFE AND FRESHWATER FISH DIVISION TO WILDLIFE AND FRESHWATER FISHERIES DIVISION; SECTION 50-5-20, AS AMENDED, RELATING TO THE JURISDICTION OF THE MARINE RESOURCES DIVISION OF THE DEPARTMENT OF NATURAL RESOURCES SO AS TO CLARIFY THAT THE DEPARTMENT HAS CONTINUING JURISDICTION OVER STRIPED BASS; SECTION 50-5-110, AS AMENDED, RELATING TO THE PROMULGATION OF REGULATIONS BY THE DEPARTMENT OF NATURAL RESOURCES, SO AS TO CHANGE THE REFERENCE TO DIVISION TO DEPARTMENT TO CONFORM TO OTHER CHANGES IN THE SECTION; SECTION 50-7-10, AS AMENDED, RELATING TO THE MEMBERSHIP OF THE ATLANTIC STATES MARINE FISHERIES COMMISSION, SO AS TO AUTHORIZE THE DIRECTOR OF THE DEPARTMENT OF NATURAL RESOURCES TO APPOINT A DESIGNEE TO SERVE IN HIS PLACE ON THE COMMISSION; SECTION 50-9-70, RELATING TO THE ESTABLISHMENT OF HUNTER EDUCATION PROGRAMS, SO AS TO REVISE THE NAME OF THE WILDLIFE AND MARINE RESOURCES DEPARTMENT; SECTION 50-9-470, AS AMENDED, RELATING TO TEMPORARY NONRESIDENT FISHING LICENSES, SO AS TO CHANGE THE REFERENCES TO WILDLIFE AND FRESHWATER FISH DIVISION TO WILDLIFE AND FRESHWATER FISHERIES DIVISION; SECTION 50-17-320, AS AMENDED, RELATING TO THE CLOSURE OF SHELLFISH GROUNDS, SO AS TO AUTHORIZE THE DEPARTMENT OF NATURAL RESOURCES RATHER THAN THE BOARD TO REMOVE CLOSED AREAS FROM A PERMIT ACREAGE AGREEMENT; SECTION 50-17-365, AS AMENDED, RELATING TO THE CLOSED SEASON FOR SHELLFISH, SO AS TO AUTHORIZE THE DEPARTMENT OF NATURAL RESOURCES RATHER THAN THE BOARD TO OPEN OR CLOSE AREAS; SECTION 50-17-730, AS AMENDED, RELATING TO THE REQUIREMENT FOR PEELER AND SOFT SHELL CRABS, SO AS TO DELETE THE REFERENCE TO MARINE RESOURCES DIVISION TO CONFORM TO OTHER CHANGES IN THE SECTION; SECTION 51-3-60, RELATING TO FREE USE OF STATE PARK FACILITIES BY DISABLED PERSONS, SO AS TO REVISE THE NAME OF THE COMMISSION ON AGING AND THE STATE DEPARTMENT OF PARKS, RECREATION AND TOURISM; SECTION 51-13-860, RELATING TO A SPECIAL LOAN TO THE PATRIOT'S POINT DEVELOPMENT AUTHORITY, SO AS TO CONFORM A REFERENCE TO THE SOUTH CAROLINA COORDINATING COUNCIL FOR ECONOMIC DEVELOPMENT; SECTION 53-3-100, RELATING TO THE COMMITTEE WHICH HONORS THE "SOUTH CAROLINA FAMILY OF THE YEAR", SO AS TO REVISE THE NAMES OF CERTAIN DEPARTMENTS AND COMMISSIONS ON THE COMMITTEE; SECTION 55-1-1, RELATING TO THE DIVISION OF AERONAUTICS, SO AS TO CHANGE THE NAME TO THE STATE AVIATION ADMINISTRATION; SECTION 55-1-5, AS AMENDED, RELATING TO DEFINITION FOR UNIFORM STATE AERONAUTICAL REGULATORY LAW, SO AS TO CHANGE THE NAME OF THE DIVISION OF AERONAUTICS TO THE STATE AVIATION ADMINISTRATION; SECTION 55-5-50, AS AMENDED, RELATING TO THE DEPUTY DIRECTOR OF AERONAUTICS, SO AS TO REINSERT THE REQUIREMENT THAT HE BE A COMMERCIAL PILOT WITH INSTRUMENT RATING; SECTION 55-5-190, AS AMENDED, RELATING TO COOPERATION BETWEEN PUBLIC DEPARTMENTS, SO AS TO CHANGE THE NAME OF THE DIVISION OF AERONAUTICS TO THE STATE AVIATION ADMINISTRATION; SECTION 55-8-10, AS AMENDED, RELATING TO THE UNIFORM AIRCRAFT FINANCIAL RESPONSIBILITY ACT, SO AS TO CHANGE THE NAME OF THE DIVISION OF AERONAUTICS TO THE STATE AVIATION ADMINISTRATION; SECTION 55-11-10, AS AMENDED, RELATING TO PARTICULAR AIRPORTS, SO AS TO CHANGE THE NAME OF THE DIVISION OF AERONAUTICS TO THE STATE AVIATION ADMINISTRATION; SECTION 55-15-10, AS AMENDED, RELATING TO RELOCATION ASSISTANCE, SO AS TO CHANGE THE NAME OF THE DIVISION OF AERONAUTICS TO THE STATE AVIATION ADMINISTRATION; SECTION 56-1-80, AS AMENDED, RELATING TO THE APPLICATION FOR A DRIVER'S LICENSE OR PERMIT, SO AS TO DELETE REFERENCES TO THE DEPARTMENT OF REVENUE AND TAXATION AND TO CLARIFY REFERENCES TO THE DEPARTMENT OF PUBLIC SAFETY; SECTION 56-1-135, AS AMENDED, RELATING TO DESIGNATED DRIVERS FOR FIRE EXTINGUISHMENT, SO AS TO CLARIFY REFERENCES TO THE DEPARTMENT OF PUBLIC SAFETY; SECTION 56-1-221, RELATING TO THE MEDICAL ADVISORY BOARD, SO AS TO CONFORM REFERENCES TO THE RESTRUCTURING ACT AND TO CLARIFY THAT THE BOARD MUST ADVISE THE DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY; SECTION 56-1-225, AS AMENDED, RELATING TO THE REEXAMINATION OF DRIVERS INVOLVED IN FOUR ACCIDENTS WITHIN TWENTY-FOUR MONTHS, SO AS TO CLARIFY REFERENCES TO THE DEPARTMENT OF PUBLIC SAFETY; SECTION 56-1-1320, AS AMENDED, RELATING TO THE ISSUANCE OF PROVISIONAL DRIVERS' LICENSES, SO AS TO CLARIFY REFERENCES IN THE SECTION; SECTION 56-1-1330, AS AMENDED, RELATING TO PROVISIONAL DRIVER'S LICENSE, SO AS TO CHANGE REFERENCES FROM THE SOUTH COMMISSION ON ALCOHOL AND DRUG ABUSE TO THE DEPARTMENT OF ALCOHOL AND OTHER DRUG ABUSE SERVICES; SECTION 56-1-2100, AS AMENDED, RELATING TO COMMERCIAL DRIVERS LICENSES, SO AS TO CLARIFY REFERENCES TO THE DEPARTMENT OF PUBLIC SAFETY; TO AMEND SECTION 56-3-1010, RELATING TO DEFINITIONS FOR REGISTRATION OF CORPORATE OWNED FLEET MOTOR VEHICLES, SO AS TO CHANGE THE REFERENCE OF THE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION TO THE DEPARTMENT OF REVENUE; SECTION 56-5-1520, AS AMENDED, RELATING TO MOTOR VEHICLE SPEED LIMITS, SO AS TO REVISE THE REQUIREMENTS FOR DEPOSIT OF FINES; SECTION 56-5-2950, AS AMENDED, RELATING TO IMPLIED CONSENT TO CHEMICAL TESTS OF BREATH, BLOOD, AND URINE, SO AS TO DELETE A SENTENCE WHICH HAS BEEN DECLARED UNCONSTITUTIONAL; SECTION 56-5-2990, AS AMENDED, RELATING TO THE SUSPENSION OF THE DRIVER'S LICENSE OF A PERSON CONVICTED OF CERTAIN VIOLATIONS, SO AS TO CHANGE REFERENCES FROM THE SOUTH CAROLINA COMMISSION ON ALCOHOL AND DRUG ABUSE TO THE DEPARTMENT OF ALCOHOL AND OTHER DRUG ABUSE SERVICES; SECTION 56-5-4160, AS AMENDED, RELATING TO THE DISPOSITION OF FINES FOR WEIGHT VIOLATIONS OF VEHICLES AND LOADS, SO AS TO REQUIRE THE FINES BE DEPOSITED INTO THE SIZE AND WEIGHT REVITALIZATION PROGRAM FUND FOR PERMANENT IMPROVEMENTS RATHER THAN INTO THE GENERAL FUND; SECTION 56-5-5810, AS AMENDED, RELATING TO THE DEFINITIONS FOR THE DISPOSITION OF ABANDONED OR DERELICT MOTOR VEHICLES, SO AS TO CHANGE A REFERENCE TO THE DIRECTOR OF THE DEPARTMENT OF REVENUE AND TAXATION TO THE DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY; SECTION 56-10-240, AS AMENDED, RELATING TO NOTICE OF INSURANCE CANCELLATION, SO AS TO CORRECT REFERENCES TO THE DEPARTMENT OF PUBLIC SAFETY, THE DEPARTMENT OF REVENUE, AND THE CHIEF INSURANCE COMMISSIONER; SECTION 57-3-610, AS AMENDED, RELATING TO NAMING A ROAD, BRIDGE, OR HIGHWAY IN HONOR OF A PERSON, SO AS TO DELETE THE REFERENCE TO COUNTY LEGISLATIVE DELEGATION AND SUBSTITUTE COUNTY TRANSPORTATION COMMITTEE AND PROVIDE FOR LIMITATION OF ACTUAL EXPENSES FOR DEDICATIONS ON AN INTERSTATE HIGHWAY; SECTION 57-5-1340, RELATING TO POWERS AND DUTIES OF THE DEPARTMENT OF TRANSPORTATION REGARDING TURNPIKES, SO AS TO CHANGE REFERENCES OF THE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION TO THE DEPARTMENT OF TRANSPORTATION; SECTION 57-25-150, AS AMENDED, RELATING TO PERMIT FEES FOR DIRECTIONAL SIGNS, SO AS TO CHANGE THE REFERENCE OF THE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION TO THE DEPARTMENT OF TRANSPORTATION; SECTIONS 57-25-470 AND 57-25-680, RELATING TO COMPENSATION FOR REMOVAL OF OUTDOOR ADVERTISING SIGNS, SO AS TO CHANGE THE NAME OF THE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION TO THE DEPARTMENT OF TRANSPORTATION; SECTION 57-27-70, RELATING TO ACQUISITION OF LANDS FOR JUNKYARDS, SO AS TO CHANGE THE NAME OF THE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION TO THE DEPARTMENT OF TRANSPORTATION; ARTICLE 3, CHAPTER 3, TITLE 58, RELATING TO THE LAW ENFORCEMENT DEPARTMENT OF THE PUBLIC SERVICE COMMISSION, SO AS TO DEVOLVE ITS DUTIES AND FUNCTIONS UPON THE DEPARTMENT OF PUBLIC SAFETY, STATE POLICE DIVISION; SECTION 59-36-20, RELATING TO DEVELOPMENT OF A COMPREHENSIVE SYSTEM OF SPECIAL EDUCATION, SO AS TO REVISE THE NAME OF THE CONTINUUM OF CARE; SECTION 59-53-20, RELATING TO THE SOUTH CAROLINA TECHNICAL EDUCATION SYSTEM, SO AS TO CONFORM THE NAME OF THE COORDINATING COUNCIL FOR ECONOMIC DEVELOPMENT OF THE DEPARTMENT OF COMMERCE; SECTION 59-63-31, RELATING TO RESIDENCY REQUIREMENTS TO ATTEND PUBLIC SCHOOLS, SO AS TO CONFORM THE NAME OF THE DEPARTMENT OF YOUTH SERVICES TO ACT 181 OF 1993; SECTION 59-65-30, AS AMENDED, RELATING TO EXCEPTIONS TO MANDATORY ATTENDANCE REQUIREMENTS OF CHILDREN IN PUBLIC OR PRIVATE SCHOOLS, SO AS TO REVISE THE NAME OF THE DEPARTMENT OF YOUTH SERVICES; SECTION 59-67-535, RELATING TO THE USE OF BOATS OPERATED BY THE DEPARTMENT OF EDUCATION TO TRANSPORT DISABLED PERSONS, SO AS TO REVISE THE NAME OF THE COMMISSION ON AGING; SECTION 59-111-20, AS AMENDED, RELATING TO FREE TUITION FOR CERTAIN VETERANS' CHILDREN, SO AS TO REVISE THE NAME OF THE DEPARTMENT OF VETERANS AFFAIRS; SECTIONS 61-1-120 AND 61-1-125, RELATING TO REQUIREMENTS FOR APPLICANTS FOR LICENSES AND PERMITS ISSUED PURSUANT TO THE ALCOHOLIC BEVERAGE CONTROL ACT, SO AS TO CHANGE REFERENCES TO ALCOHOLIC BEVERAGE CONTROL COMMISSION AND COMMISSION TO THE PROVISIONS OF THE RESTRUCTURING ACT; SECTIONS 61-5-320 AND 61-5-360, AS AMENDED, RELATING TO THE DISBURSEMENT OF FUNDS TO COUNTIES FOR EDUCATIONAL PURPOSES RELATING TO USE OF ALCOHOLIC LIQUORS AND THE REHABILITATION OF ALCOHOLICS, DRUG ABUSERS, AND DRUG ADDICTS, SO AS TO CHANGE REFERENCES FROM THE SOUTH CAROLINA COMMISSION ON ALCOHOLISM AND THE COMMISSIONER OF NARCOTICS AND CONTROLLED SUBSTANCES TO THE DEPARTMENT OF ALCOHOL AND OTHER DRUG ABUSE SERVICES; SECTION 61-9-35, RELATING TO REQUIREMENTS FOR THE SALE OF BEER AND WINE AND THE RESTRICTIONS ON BEER OR BEER AND WINE PERMITTEE IN PAYING WHOLESALERS AND THE PENALTY FOR VIOLATIONS, SO AS TO CHANGE REFERENCES TO ALCOHOLIC BEVERAGE CONTROL COMMISSION AND COMMISSION TO THE PROVISIONS OF THE RESTRUCTURING ACT; SECTION 61-13-590, RELATING TO THE SALE OF ALCOHOLIC BEVERAGES SEIZED IN ENFORCEMENT ACTIONS, SO AS TO CONFORM A REFERENCE TO THE TAX COMMISSION TO THE RESTRUCTURING ACT; SECTION 1613 OF ACT 181 OF 1993, RELATING TO TRANSITION PROVISIONS, SO AS TO PROVIDE THAT AN EMPLOYEE'S PERSONNEL RECORDS ARE TRANSFERRED AND BELONG TO THE AGENCY TO WHICH THE EMPLOYEE IS TRANSFERRED; SECTION 1618 OF ACT 181 OF 1993, RELATING TO THE EFFECTIVE DATES OF THE STATE GOVERNMENT RESTRUCTURING ACT, SO AS TO MAKE TECHNICAL CORRECTIONS IN REGARD TO CERTAIN EFFECTIVE DATES AND EFFECTIVE DATE REFERENCES; TO AMEND THE 1976 CODE BY ADDING SECTION 40-73-17, SO AS TO PROVIDE THAT THE DEPARTMENT OF LABOR, LICENSING, AND REGULATION SHALL PROVIDE LEGAL SERVICES TO ALL ITS DIVISIONS; SECTIONS 48-9-215 AND 48-9-225, SO AS TO ESTABLISH AND PROVIDE FOR THE STATE LAND RESOURCES AND CONSERVATION DISTRICTS ADVISORY COUNCIL; TO AMEND CHAPTER THREE OF TITLE 49 BY ADDING SECTION 49-3-60, SO AS TO AUTHORIZE THE DEPARTMENT OF NATURAL RESOURCES TO NEGOTIATE AGREEMENTS RELATING TO THE WITHDRAWAL, TRANSFER, OR DIVERSION OF WATER CONNECTED TO WATERS OF THIS STATE; TO AMEND THE 1976 CODE BY ADDING CHAPTER 27 TO TITLE 50, SO AS TO CHANGE THE PLACEMENT OF THE STATUTORY AUTHORITY FOR THE HERITAGE TRUST PROGRAM FROM TITLE 51 TO TITLE 50; TO AMEND THE 1976 CODE BY ADDING SECTION 56-3-1720 SO AS TO PROVIDE FOR A SPECIAL LICENSE PLATE FOR LAW ENFORCEMENT MOTOR VEHICLES OPERATED BY LINE LAW ENFORCEMENT PERSONNEL OF THE DEPARTMENT OF PUBLIC SAFETY; TO DIRECT THE CODE COMMISSIONER TO CHANGE CERTAIN REFERENCES TO CONFORM WITH THE PROVISIONS OF THIS ACT; AND TO REPEAL SECTIONS 41-15-310, 43-21-120, 43-21-140, 48-9-230, 49-5-130, 49-21-80, CHAPTER 5 OF TITLE 12, CHAPTER 61 OF TITLE 40, AND CHAPTER 17 OF TITLE 51.
The House returned the Bill with amendments.
Senator MOORE proposed the following amendment (JUD0264.020), which was adopted:
Amend the bill, as and if amended, by striking all after the enacting words and inserting therein the following:
/SECTION 1. Section 1-3-220 of the 1976 Code is amended to read:
"Section 1-3-220. The following appointments shall be made by the Governor and are in addition to those appointments by the Governor authorized in other provisions in the Code:
(1) An appointment to fill any vacancy in an office of the executive department as defined in Section 1-1-110 occurring during a recess of the General Assembly. The term of such appointment shall be until the vacancy be filled by a general election or by the General Assembly in the manner provided by law.
(2 1) An appointment to fill any vacancy in a county office. The person so appointed shall hold office, in all cases in which the office is elective, until the next general election and until his successor shall qualify; and in the case of offices originally filled by appointment and not by election, until the adjournment of the session of the General Assembly next after such vacancy has occurred. The Governor may remove for cause any person so appointed by him under the provisions of this paragraph to fill any such vacancy.
(3 2) Proxies to represent the share of the State in the Cheraw and Coalfields Railroad Company and in the Cheraw and Salisbury Railroad Company.
(4 3) The chief constable of the State, whensoever in his judgment any public emergency shall require it or when necessary to the due execution of legal process."
SECTION 1A. Chapter 3, Title 1 of the 1976 Code is amended by adding:
"Section 1-3-200. (A) Effective with all appointments made after January 1, 1996, and for all appointments whose terms expire after January 1, 1996, unless expressly provided otherwise, the term of office for all appointments subject to the advice and consent of the Senate shall begin on June first and expire on May thirty-first of the year in which the respective term of office is set for appointment or reappointment. The provisions of this section and the Rules of the Senate shall govern the appointment and confirmation of offices subject to the advice and consent of the Senate.
(B) Prior to April first of each year, the Governor must submit an appointment to the Senate for its consideration for those offices with terms expiring in that year.
If no appointment is transmitted prior to April first or if the appointment transmitted is not confirmed by the Senate prior to sine die adjournment of the General Assembly, the office is vacant upon sine die adjournment and an interim appointment of another individual must be made and shall be deemed a subsequent interim appointment as provided in Section 1-3-210.
(C) If, on or after April first, a vacancy occurs in an office referenced in subsection (A), for reasons other than expiration of a term, the Governor may submit a new appointment to the Senate for advice and consent within five working days of the vacancy but in no event later than May twenty-first of that year. If no appointment is transmitted or if the appointment transmitted is not confirmed by the Senate prior to sine die adjournment of the General Assembly, the office is vacant upon sine die adjournment and an interim appointment of another individual may be made and shall be deemed a subsequent interim appointment as provided in Section 1-3-210.
(D) An appointment of the Governor to a vacancy occurring after May first for reasons other than expiration of a term, may be filled upon advice and consent of the Senate. If the Senate fails to confirm the appointee, the same individual may be appointed as an interim appointment pursuant to Section 1-3-210, notwithstanding the fact that the vacancy occurred when the General Assembly was in session.
(E) The provisions of this section shall not apply to the appointment of magistrates made pursuant to Section 22-1-10."
SECTION 1B. Section 1-3-210 of the 1976 Code is amended to read:
"Section 1-3-210. (A) During the recess of the Senate, a vacancy which occurs in an office filled by an appointment of the Governor with the advice and consent of the Senate may be filled by an interim appointment of the Governor. The Governor Secretary of State must report the interim appointment to the Senate within five working days of its receipt. and The Governor must forward a formal appointment to the Senate on the second Tuesday in January of the at its next ensuing regular session.
If the Senate does not advise and consent thereto to the interim appointment prior to sine die adjournment of the next ensuing regular session, the office shall be vacant and the interim appointment appointee shall not serve in hold over status notwithstanding any other provision of law to the contrary. The Governor may make a A subsequent interim appointment of a different person person other than the original interim appointee to a the vacancy created by a failure of the Senate to grant confirmation to the original interim appointment. Unless confirmed, the office to which the subsequent interim appointee was appointed is deemed vacant on shall expire on the second Tuesday in January February first following the date of such that the subsequent interim appointment is made and the appointment must be returned to the Governor office shall be vacant. Notwithstanding any provision of law to the contrary, the subsequent interim appointee may not continue in office in holdover status.
(B) Notwithstanding any statutory provision to the contrary, except Section 1-1-120, the Governor may not make an appointment to an office which is filled by election by the General Assembly."
SECTION 1C. Section 1-3-215 of the 1976 Code is amended to read:
"Section 1-3-215. (A) Appointments by the Governor requiring the advice and consent of the Senate must be transmitted to the Senate and must contain at a minimum the following information:
(1) the title of the office to which the individual is being appointed;
(2) the designation of any special seat, discipline, interest group or other designated entity that the individual is representing or is chosen from;
(3) the full legal name of the individual being appointed;
(4) the date of birth, driver's license number, social security number, voter registration number, and precinct of residence of the individual being appointed;
(4) (5) the current street or mailing address and telephone number;
(5) (6) the county, counties, district or other geographic area or political subdivision being represented;
(6) (7) the name of the individual being replaced if the appointment is not an initial appointment; and
(8) a designation indicating those individuals being appointed as an interim appointment or a subsequent interim appointment;
(7) (9) the commencement and ending date of the term of office; and
(10) evidence that the appointee meets the statutory and constitutional qualifications established for the office.
(B) When an appointment has been confirmed by the Senate, evidence of such confirmation shall be transmitted to the Secretary of State by the Clerk of the Senate and the Secretary of State must thereafter obtain the necessary oath and evidence of bond if required. The official record for purposes of establishing a term of office shall be that term designated in the Senate Journal. The taking of the oath of office and filing of any requisite bond shall fully vest the person appointed with the full rights, privileges and powers of the office. The notice of confirmation transmitted by the Senate shall be conclusive as to the validity of an appointment and the issuance of a commission by the Secretary of State after obtaining the requisite documentation is a ministerial act."
SECTION 2. Section 1-3-240(C)(2) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(C) Commission Director of the Department of Revenue and Taxation;"
SECTION 3. Section 1-7-920(3) of the 1976 Code is amended to read:
"(3) The Executive Director of the South Carolina Criminal Justice Academy Director of the Department of Public Safety shall serve during the term for which he is appointed;"
SECTION 4. Section 1-7-940 of the 1976 Code is amended to read:
"Section 1-7-940. (A) The commission has the following duties:
(1) coordinate all administrative functions of the offices of the solicitors and any affiliate services operating in conjunction with the solicitors' offices;
(2) submit the budgets of the solicitors and their affiliate services to the General Assembly;
(3) encourage and develop legal education programs and training programs for solicitors and their affiliate services, organize and provide seminars to help increase the effectiveness and efficiency of the prosecution of criminal cases in this State, and act as a clearinghouse and distribution source for publications involving solicitors and their affiliate services and provide legal updates on matters of law affecting the prosecution of cases in this State;
(4) provide blank indictments for the circuit solicitors;
(5) provide information, training, and technical assistance to the Victim/Witness Assistance units within the solicitors' offices.
(B) Nothing in this section may be construed to displace or otherwise affect the functions and responsibilities of the State Victim/Witness Assistance Program as established in Section 16-3-1410."
SECTION 5. Section 1-11-310(E) and (F) of the 1976 Code, as last amended by Act 449 of 1992, are further amended to read:
"(E) Titles to school buses and service vehicles operated by the State Department of Education and vehicles operated by the South Carolina Department of Highways and Public Transportation must be retained by those agencies.
(F) Exceptions to requirements in subsections (B) and (C) must be approved by the director of the Division of Motor Vehicle Management. Requirements in subsection (B) do not apply to the Division of State Development Board of the South Carolina Department of Commerce."
SECTION 6. Section 1-19-60 of the 1976 Code is amended to read:
"Section 1-19-60. The State Reorganization Commission shall be is composed of nineteen members, who shall serve for terms of two years, of whom. one One shall must be the chairman of the Ways and Means Committee of the House of Representatives, one shall must be the chairman of the Judiciary Committee of the House of Representatives, five shall must be members of the House of Representatives elected by the House of Representatives, one shall must be the chairman of the Finance Committee of the Senate, one shall must be the chairman of the Judiciary Committee of the Senate, five shall must be members of the Senate elected by the Senate, and five shall must be appointed by the Governor, one of whom may be a member of the State Development the Secretary of Commerce or his designee who shall serve ex officio or some other a member of a state board, who shall serve ex officio. In the case of a vacancy in the membership of the commission it shall must be filled in the manner of the original election or appointment."
SECTION 7. Section 1-23-10(4) of the 1976 Code is amended to read:
"(4) 'Regulation' means each agency statement of general public applicability that implements or prescribes law or policy or practice requirements of any agency. The term includes the amendment or repeal of a prior regulation but does not include descriptions of agency procedures applicable only to agency personnel; opinions of the Attorney General; decisions or orders in rate making, price fixing or licensing matters; awards of money to individuals; policy statements or rules of local school boards; regulations of the National Guard; decisions, and orders of the Board of Paroles and Pardons or and rules of the Department of Probation, Parole and Pardon Board Services; orders of the supervisory or administrative agency of any penal, mental or medical institution, in respect to the institutional supervision, custody, control, care or treatment of inmates, prisoners or patients therein; decisions of the governing board of any university, college, technical college, school or other educational institution with regards to curriculum, qualifications for admission, dismissal and readmission, fees and charges for students, conferring degrees and diplomas, employment tenure and promotion of faculty and disciplinary proceedings; decisions of the Human Affairs Commission relating to firms or individuals; advisory opinions of any agencies; and other agency actions relating only to specified individuals."
SECTION 8. Section 1-23-111(A) of the 1976 Code, as added by Act 181 of 1993, is amended to read:
"Section 1-23-111. (A) When a public hearing is held pursuant to this article involving the promulgation of regulations by a department for which the governing authority is a single director, it shall be conducted by an administrative law judge assigned by the chief judge. When a public hearing is held pursuant to this article involving the promulgation of regulations by a department for which the governing authority is a board or commission, it shall be conducted by the board or commission, with the chairman or his designee from the board presiding. The administrative law judge, chairman, or chairman chairman's designee, as the presiding official, shall ensure that all persons involved in the public hearing on the regulation are treated fairly and impartially. The agency shall submit into the record the jurisdictional documents, including the statement of need and reasonableness, and any written exhibits in support of the proposed regulation. The agency may also submit oral evidences. Interested persons may present written or oral evidence. The presiding official shall allow questioning of agency representatives or witnesses, or of interested persons making oral statements, in order to explain the purpose or intended operation of the proposed regulation, or a suggested modification, or for other purposes if material to the evaluation or formulation of the proposed regulation. The presiding official may limit repetitive or immaterial statements or questions. At the request of the presiding official or the agency, a transcript of the hearing must be prepared."
SECTION 9. Section 1-23-600(A) of the 1976 Code, as added by Section 19 of Act 181 of 1993, is amended to read:
"(A) The hearings and proceedings concerning contested cases must be transcribed and are open to the public unless confidentiality is allowed or required by law. The presiding administrative law judge shall render the decision in a written order. Except as provided in this subsection, The the decisions or orders of these administrative law judges are not required to be published but are available for public inspection unless the confidentiality thereof is allowed or required by law. All decisions relating to the Department of Revenue must be made public; however, where confidentiality requires, decisions may be redacted."
SECTION 10. Section 1-30-10 (A) and (B) of the 1976 Code, as added by Act 181 of 1993, is amended to read:
"(A) There are hereby created, within the executive branch of the state government, the following departments:
(1) Department of Agriculture;
(2) Department of Alcohol and Other Drug Abuse Services;
(3) Department of Commerce;
(4) Department of Corrections;
(5) Department of Disabilities and Special Needs;
(6) Department of Education;
(7) Department of Health and Environmental Control;
(8) Department of Health and Human Services;
(9) Department of Insurance;
(10) Department of Juvenile Justice;
(11) Department of Labor, Licensing, and Regulation;
(12) Department of Mental Health;
(13) Department of Natural Resources;
(14) Department of Parks, Recreation and Tourism;
(15) Department of Probation, Pardon and Parole and Pardon Services;
(16) Department of Public Safety;
(17) Department of Revenue and Taxation;
(18) Department of Social Services;
(19) Department of Transportation.
(B)(1) The governing authority of each department shall be either:
(i) a director, and or in the case of the Department of Commerce, the secretary, or in the case of the Department of Insurance, the commissioner, who must be appointed by the Governor with the advice and consent of the Senate, subject to removal from office by the Governor pursuant to provisions of Section 1-3-240; or,
(ii) a seven member board to be appointed and constituted in a manner provided for by law; or,
(iii) in the case of the Department of Agriculture and the Department of Education, the State Commissioner of Agriculture and the State Superintendent of Education, respectively, elected to office under the Constitution of this State.
(2) In making appointments to boards and for department directors, race, gender, and other demographic factors should be considered to assure nondiscrimination, inclusion, and representation to the greatest extent possible of all segments of the population of this State; however, consideration of these factors in no way creates a cause of action or basis for an employee grievance for a person appointed or for a person who fails to be appointed. The Governor in making the appointments provided for by this section shall endeavor to appoint individuals who have demonstrated exemplary managerial skills in either the public or private sector."
SECTION 11. Section 1-30-10(f)(2)(iii) of the 1976 Code, as added by Act 181 of 1993, is amended to read:
"(iii) Department of Probation, Pardon and Parole and Pardon Services created pursuant to Section 1-30-85 by the director of the former Department of Probation, Pardon and Parole and Pardon;"
SECTION 12. Section 1-30-35 of the 1976 Code, as added by Act 181 of 1993, is amended to read:
"Section 1-30-35. Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property, and all contractual rights and obligations associated with any such the agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall must be administered as part of the Department of Disabilities and Special Needs to be initially divided into divisions for Mental Retardation, Head and Spinal Cord Injury, and Autism; provided,. However, that the board of the former Department of Mental Retardation as constituted on June 30, 1993, and thereafter after that time, under the provisions of Section 44-19-10 44-20-10, et seq., shall be is the governing authority for the department.
(A) Department of Mental Health Autism programs, formerly provided for at Section 44-9-10, et seq.;
(B) Head and Spinal Cord Injury Information System, formerly provided for at Section 44-38-10, et seq.;
(C) Department of Mental Retardation, formerly provided for at Section 44-19-10 44-20-10, et seq."
SECTION 13. Section 1-30-85 of the 1976 Code, as added by Act 181 of 1993, is amended to read:
"Section 1-30-85. Department of Probation, Pardon and Parole and Pardon Services.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property, and all contractual rights and obligations associated with any such the agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall must be administered as part of the Department of Probation, Pardon and Parole and Pardon Services:
Department of Probation, Pardon and Parole and Pardon Services, formerly provided for at Section 24-21-10, et seq."
SECTION 14. Section 2-7-73(A) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(A) Any A bill or resolution which would mandate a health coverage or offering of a health coverage by an insurance carrier, health care service contractor, or health maintenance organization as a component of individual or group policies, must have attached to it a statement of the financial impact of the coverage, according to the guidelines enumerated in subsection (B). This financial impact analysis must be conducted by the Division of Research and Statistical Services and signed by an authorized agent of the Department of Insurance, or his designee. The statement required by this section must be delivered to the Senate or House committee to which any a bill or resolution is referred, within thirty days of the written request of the chairman of such the committee."
SECTION 15. Section 2-13-190 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 2-13-190. Within five days after receiving such the page proofs corrected from the Code Commissioner, the Office of Legislative Printing and Information Technology Resources (LPITR) shall print the same and shall deliver as many copies to the Code Commissioner as the commissioner may order. The Code Commissioner on receipt of such these copies shall send a copy to each of the following officers: The Governor, Supreme Court Justices, Clerk of the Supreme Court, Court of Appeals Judges judges, Clerk of the Court of Appeals, circuit judges, circuit solicitors, county Administrative Law Judge Division judges, county solicitors, clerk of the court of each county, judge of probate of each county, Attorney General, Secretary of State, Comptroller General, Adjutant General, State Treasurer, Chief Bank Examiner, Department of the Revenue and Taxation, Director of the Department of Transportation, State Health Officer, Director of the Department of Natural Resources, Chairman of the Public Service Commission, Commissioner of Agriculture, Director Chief Insurance Commissioner of the Department of Insurance, State Budget and Control Board, State Superintendent of Education, State Librarian, Clerk of the House of Representatives, Clerk of the Senate, Director of the South Carolina Archives Department, Director of the Department of Public Safety, and the members of the General Assembly. Any magistrate may obtain a copy of advance sheets of statutes by sending his name, address, and term to the Code Commissioner."
SECTION 16. Section 2-13-240(a) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(a) Sets of the Code of Laws of South Carolina, 1976, shall must be distributed by the Legislative Council as follows: Governor, three; Lieutenant Governor, two; Secretary of State, three; Treasurer, one; Attorney General, fifty; Adjutant General, one; Comptroller General, two; Superintendent of Education, two; Commissioner of Agriculture, two; each member of the General Assembly, one; office of the Speaker of the House of Representatives, one; Clerk of the Senate, one; Clerk of the House of Representatives, one; each committee room of the General Assembly, one; each member of the Legislative Council, one; Code Commissioner, one; Legislative Council, ten; Supreme Court, fourteen; Court Administration Office, five; each Court of Appeals judge, one; each circuit court judge, one; each circuit court solicitor, one; each family court judge, one; each county court Administrative Law Judge Division judge, one; College of Charleston, one; The Citadel, two; Clemson University, three; Coastal Carolina University, one; Francis Marion College, one; Lander College, one; Medical University of South Carolina, two; South Carolina State College, two; University of South Carolina, four; each regional campus of the University of South Carolina, one; University of South Carolina Law School, forty-six; Winthrop College, two; each technical college or center, one; each county governing body, one; each county clerk of court and register of mesne conveyances where such these offices are separate, one; each county auditor, one; each county coroner, one; each county magistrate, one; each county master in equity, one; each county probate judge, one; each county public library, one; each county sheriff, one; each public defender, one; each county superintendent of education, one; each county treasurer, one; Library of Congress, three; United States Supreme Court, one; each member of Congress from South Carolina, one; each state library which furnishes this State a free set of its Code of Laws, one; Division of Aeronautics of the Department of Commerce, one; Department of Alcohol and Other Drug Abuse Services, one; Department of Archives and History, one; Board of Bank Control Financial Institutions, one; Commissioner of Banking, one; Budget and Control Board (Auditor, six; General Services Division, six; Personnel Division, one; Research and Statistical Services Division, one; Retirement System, one); Children's Bureau, one; Department of Consumer Affairs, one; Department of Corrections, two; Criminal Justice Academy, one; Department of Commerce, five; Employment Security Commission, two; Ethics Commission, one; Forestry Commission, one; Department of Health and Environmental Control, five; Department of Transportation, five; Department of Public Safety, five; Human Affairs Commission, one; Workers' Compensation Commission, seven; Department of Insurance, two; Department of Juvenile Justice and Aftercare, one; Department of Labor, Licensing, and Regulation, two; South Carolina State Law Enforcement Division, four; Legislative Audit Council, one; State Library, three; Department of Mental Health, three; Department of Disabilities and Special Needs, five; Ports Authority, one; Department of Probation, Parole and Pardon Services, two; Public Service Commission, three; Reorganization Commission, one; Department of Social Services, two; Department of Revenue and Taxation, six; Board for Technical and Comprehensive Education, one; Veterans' Affairs Division of the Governor's office, one; Vocational Rehabilitation, one; Department of Natural Resources, four."
SECTION 17. Section 2-19-10 of the 1976 Code is amended to read:
"Section 2-19-10. (A) Whenever an election is to be held by the General Assembly in Joint Session, including members of the judiciary, a joint committee, composed of eight members, four of whom shall must be members of the House of Representatives and four of whom shall must be members of the Senate, shall must be appointed to consider the qualifications of the candidates. Each body shall determine how its respective members shall must be selected. Each joint committee shall meet as soon after its appointment as may be practicable and shall elect one of its members as chairman, one as secretary, and such other officers as it may deem considers desirable.
(B) Notwithstanding the provisions of subsection (A), the membership of the Committee to Consider the Qualifications of Candidates for the Public Service Commission must be as established by Section 58-3-26."
SECTION 18. Section 4-10-25 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 4-10-25. The gross proceeds of sales of tangible personal property delivered after the imposition date of the tax levied under Section 4-10-20 in a county, either under the terms of a construction contract executed before the imposition date, or a written bid submitted before the imposition date, culminating in a construction contract entered into before or after the imposition date, are exempt from the local sales and use tax provided in Section 4-10-20 if a verified copy of the contract is filed with the South Carolina Department of Revenue and Taxation within six months after the imposition of the local sales and use tax."
SECTION 19. Section 4-10-60(D) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(D) The provisions of subsection (A) do not apply if the total number of county areas adopting the sales and use tax authorized by this chapter, which are projected by the Department of Revenue and Taxation to collect five million dollars or more, generated fifty percent or less during the most currently available fiscal year of the total statewide collections from the levy of a one percent sales and use tax, then those county areas generating five million dollars or more must be assessed five percent of the amount generated in the county area, and that amount must be used as a supplement to those county areas generating less than the minimum distribution. The supplement to those county areas generating less than the minimum distribution must be distributed so that each county area receives an amount equal to what its percentage of population bears to the total population in all of the county areas generating less than the minimum distribution which have implemented the sales and use tax authorized by this chapter. Once the amount of the supplement has been determined for each of the county areas to be supplemented, then the supplement must be distributed to the eligible units within the county area based on population as provided for in this chapter. However, the supplement to the county area combined with collections within the county area may not exceed the minimum distribution."
SECTION 20. Section 4-10-65 of the 1976 Code, as added by Section 99, Part II, Act 164 of 1993, is amended to read:
"Section 4-10-65. Funds collected by the Tax Commission Department of Revenue from the local option sales tax which are not identified as to the governmental unit due the tax, shall, after a reasonable effort by the commission department to determine the appropriate governmental unit, must be deposited to a local option supplemental revenue fund. These funds must be distributed in accordance with Section 4-10-60 to those counties generating less than the minimum distribution."
SECTION 21. Section 4-10-80 of the 1976 Code, as amended by Section 99, Part II, Act 164 of 1993, is amended to read:
"Section 4-10-80. Annually by August fifteenth the State Treasurer shall report to the county chief administrative officers, county treasurers, and municipal clerks in those county areas which levy the sales and use tax authorized by this chapter the total amount of revenue collected as reported by the Department of Revenue and Taxation in the county area for the preceding fiscal year."
SECTION 22. Section 4-10-90 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 4-10-90. (A) The Department of Revenue and Taxation shall administer and collect the local sales and use tax in the manner that sales and use taxes are administered and collected pursuant to Chapter 36 of Title 12. The commission may prescribe forms and promulgate regulations in conformity with this chapter, including tables prescribing the amount to be added to the sales price. The county shall notify the Department of Revenue and Taxation and the State Treasurer through delivery of a certified copy of a resolution adopted by the county by December thirty-first following the referendum for the tax to be imposed May first. Failure to deliver the resolution by December thirty-first causes a delay of the imposition until the first day of May of the next calendar year. Notwithstanding the provisions of this subsection, the local sales and use tax must not be imposed before July first following the first referendum held pursuant to Section 4-10-30.
(B) All revenues collected by the Department of Revenue and Taxation on behalf of a county area pursuant to this chapter must be remitted to the State Treasurer to be credited to a Local Sales and Use Tax Fund which is separate and distinct from the state general fund. After deducting the amount of refunds made and the costs to the Department of Revenue and Taxation of administering the tax, not to exceed one-half of one percent of the fund or seven hundred fifty thousand dollars, whichever is greater, the State Treasurer shall deposit the revenue into the Local Sales and Use Tax Fund which consists of two separate funds: the Property Tax Credit Fund and the County/Municipal Revenue Fund. The revenue collected pursuant to this chapter must be allocated to each fund as follows:
(1) During the first year after the effective date of this act, sixty-three percent to the Property Tax Credit Fund and thirty-seven percent to the County/Municipal Revenue Fund.
(2) During the second year after the effective date of this act, sixty-five percent to the Property Tax Credit Fund and thirty-five percent to the County/Municipal Revenue Fund.
(3) During the third year after the effective date of this act, sixty-seven percent to the Property Tax Credit Fund and thirty-three percent to the County/Municipal Revenue Fund.
(4) During the fourth year after the effective date of this act, sixty-nine percent to the Property Tax Credit Fund and thirty-one percent to the County/Municipal Revenue Fund.
(5) During the fifth year after the effective date of this act, and each year thereafter, seventy-one percent to the Property Tax Credit Fund and twenty-nine percent to the County/Municipal Revenue Fund. The allocation of revenue to each fund provided for in this section must remain uniform as to the percentage allocated to each fund regardless of the year in which a county adopts the local sales and use tax. The State Treasurer shall distribute monthly the revenues according to the provisions of this chapter.
(C) The Department of Revenue and Taxation shall furnish data to the State Treasurer and to the governing bodies of the counties and municipalities receiving revenues for the purpose of calculating distributions and estimating revenues. The information which may be supplied to counties and municipalities includes, but is not limited to, gross receipts, net taxable sales, and tax liability by taxpayers. Information by taxpayer received by appropriate county or municipal officials is considered confidential and is governed by the provisions of Section 12-54-240. A person violating this section is subject to the penalties provided in Section 12-54-240. The State Treasurer may correct misallocations from the Property Tax Credit Fund and County/Municipal Revenue Fund by adjusting subsequent allocations, but these adjustments may be made only in allocations made in the same fiscal year as the misallocation."
SECTION 23. Section 4-29-67 of the 1976 Code, as last amended by Act 467 of 1994, is further amended to read:
"Section 4-29-67. (A) Notwithstanding the provisions of Section 4-29-60, in the case of a financing agreement in the form of one or more lease agreements for a project qualifying under subsection (B), the county and the investor may enter into an inducement agreement which provides for payment in lieu of taxes (fee) as provided in this section. All references in this section to a lease agreement shall be deemed also to refer to a lease purchase agreement.
(B) In order for property to qualify for the fee as provided in subsection (D)(2):
(1) Title to the property must be held by the county or in the case of a project located in an industrial development park as defined in Section 4-1-170, title may be held by more than one county, provided each county is a member of the industrial development park. Any real property transferred to the county must include a legal description and plat of the property.
(2) The investment must be a project which is located in a single county or an industrial development park as defined in Section 4-1-170. A project located on a contiguous tract of land in more than one county, but not in such an industrial development park, may qualify for the fee provided (a) the counties agree on the terms of the fee and the distribution of the fee payment; (b) the minimum millage rate cannot be lower than the millage rate applicable to the county in which the greatest amount of investment occurs; and (c) all such counties must be parties to all agreements establishing the terms of the fee.
(3) The minimum level of investment must be at least eighty-five million dollars and must be invested within the time period provided in subsection (C).
(4) (a) Except as provided in subsection (B)(4)(b), the investment must be made by a single entity. For purposes of this section, (i) any partnership or other association which properly files its South Carolina income tax returns as a partnership for South Carolina income tax purposes will be treated as a single entity and as a partnership, and (ii) any corporation or other association which properly files its South Carolina income tax returns as a corporation for South Carolina income tax purposes will be treated as a single entity and as a corporation.
(b) (i) The members of the same controlled group of corporations can qualify for the fee if the combined investment in the county by the members meets the minimum investment requirements. The county and the members who are part of the inducement agreement may agree that any investments by other members of the controlled group within the time periods provided in subsections (C)(1) and (C)(2) shall qualify for the payment regardless of whether the member was part of the inducement agreement; provided, however, in order to qualify for the fee, such other members of the controlled group must be specifically approved by the county and must agree to be bound by agreements with the county relating to the fee; provided, however, such controlled group members need not be bound by agreements, or portions of agreements, to the extent such agreements do not affect the county; provided, further, that with the consent of the county, such members will not be bound by agreements or portions of agreements which do affect the county. Except as otherwise provided in subsection (B)(2), the investments under this subsection (B)(4)(b) must be within the same county or industrial park. Any controlled group member which is claiming the fee must invest at least ten million dollars in the county or industrial park.
(ii) The Department of Revenue and Taxation must be notified in writing of all members which have investments subject to the fee before or within thirty days after the execution of the lease agreement covering the investment by the member. The Department of Revenue and Taxation may extend the thirty-day period upon written request. Failure to meet this notice requirement will not adversely affect the fee, but a penalty may be assessed by the Department of Revenue and Taxation for late notification for up to ten thousand dollars a month or portion of a month with the total penalty not to exceed one hundred twenty thousand dollars. Members of the controlled group must provide the information considered necessary by the Department of Revenue and Taxation to ensure that the investors are part of a controlled group.
(iii) If at any time the controlled group or any former member (who has left the controlled group) no longer has the minimum eighty-five million dollars of investment (without regard to depreciation), that group or former member no longer holding the minimum amount of investment as provided in subsection (B)(3) (without regard to depreciation) will no longer qualify for the fee.
(iv) For purposes of this section, "controlled group" or "controlled group of corporations" shall have the meaning provided under Section 1563(a) of the Internal Revenue Code as defined in Chapter 7 of Title 12 as of the date of the execution of the inducement agreement (without regard to amendments or replacements thereof), without regard to subsection (b) of such Section 1563.
(C) (1) From the end of the property tax year in which the investor and the county execute an inducement agreement, the investor has seven years in which to enter into an initial lease agreement with the county.
(2) From the end of the property tax year in which the investor and the county execute the initial lease agreement, the investor has five years in which to complete its investment for purposes of qualifying for this section. If the investor does not anticipate completing the project within five years, the investor may apply to the county before the end of the five-year period for an extension of time to complete the project. If the county agrees to grant the extension, the county must do so in writing and a copy must be delivered to the Department of Revenue and Taxation within thirty days of the date the extension was granted. The extension may not exceed two years in which to complete the project.
There is no extension allowed for the five-year period in which to meet the minimum level of investment. If the minimum level of investment is not met within five years, all property under the lease agreement or agreements reverts retroactively to the payments required by Section 4-29-60. The difference between the fee actually paid by the investor and the payment which is due under Section 4-29-60 is subject to interest as provided in Section 12-43-305.
Unless property qualifies as replacement property under a contract provision enacted pursuant to subsection (F)(2), any property placed in service after the five-year period, or seven years in the case of a project which has received an extension, is not part of the fee agreement under subsection (D)(2) and is subject to the payments required by Section 4-29-60 if the county has title to the property, or to property taxes as provided in Chapter 37 of Title 12 if the investor has title to the property.
(3) The annual fee provided by subsection (D)(2) is available for no more than twenty years. For projects which are completed and placed in service during more than one year, each year's investment may be subject to the fee in subsection (D)(2) for twenty years to a maximum total of twenty-seven years for the fee for a single project which has been granted an extension.
(D) The inducement agreement must provide for fee payments, to the extent applicable, as follows:
(1) (a) Any property, title to which is transferred to the county, will be subject, before being placed in service, to an annual fee payment as provided in Section 4-29-60.
(b) Any undeveloped land, title to which is transferred to the county, will be subject, before being developed and placed in service, to an annual fee payment as provided in Section 4-29-60. The time during which fee payments are made under Section 4-29-60 will not be considered part of the maximum periods provided in subsections (C)(2) and (C)(3), and no lease shall be considered an "initial lease agreement" for purposes of this section unless and until the first day of the calendar year for which a fee payment is due under subsection (D)(2) in connection with such lease.
(2) After property qualifying under subsection (B) is placed in service, an annual fee payment determined in accordance with one of the following is due:
(a) an annual payment in an amount not less than the property taxes that would be due on the project if it were taxable, but using an assessment ratio of not less than six percent, and a fixed millage rate as provided in subsection (G), and a fair market value estimate determined by the South Carolina Department of Revenue and Taxation as follows:
(i) for real property using the original income tax basis for South Carolina income tax purposes without regard to depreciation (provided, however, if real property is constructed for the fee or is purchased in an arm's length transaction, fair market value will be deemed to equal the original income tax basis, otherwise the Department of Revenue and Taxation will determine fair market value by appraisal); and
(ii) for personal property using the original income tax basis for South Carolina income tax purposes less depreciation allowable for property tax purposes, except that the investor is not entitled to any extraordinary obsolescence.
(b) an annual payment based on any alternative arrangement yielding a net present value of the sum of the fees for the life of the agreement not less than the net present value of the fee schedule as calculated under subsection (D)(2)(a). Net present value calculations performed under this subsection must use a discount rate equivalent to the yield in effect for new or existing United States Treasury bonds of similar maturity as published during the month in which the inducement agreement is executed. If no yield is available for the month in which the inducement agreement is executed, the last published yield for the appropriate maturity must be used. If there are no bonds of appropriate maturity available, bonds of different maturities may be averaged to obtain the appropriate maturity.
(c) an annual payment using a formula that results in a fee not less than the amount required pursuant to subsection (D)(2)(a), except that every fifth year the applicable millage rate is allowed to increase or decrease in step with the average actual millage rate applicable in the district where the project is located based on the preceding five-year period.
(3) At the conclusion of the payments determined pursuant to items (1) and (2) of this subsection, an annual payment equal to the taxes due on the project as if it were taxable. When the property is no longer subject to the fee under subsection (D)(2), the fee or property taxes must be assessed:
(a) with respect to real property, based on the fair market value as of the latest reassessment date for similar taxable property; and
(b) with respect to personal property, based on the then depreciated value applicable to such property under the fee, and thereafter continuing with the South Carolina property tax depreciation schedule.
(E) Calculations pursuant to subsection (D)(2) must be made on the basis that the property, if taxable, is allowed all applicable property tax exemptions except the exemption allowed under Section 3(g) of Article X of the Constitution of this State and the exemption allowed pursuant to Section 12-37-220B (32) and (34).
(F) With regard to calculation of the fee provided in subsection (D)(2), the inducement agreement may provide for the disposal of property and the replacement of property subject to the fee as follows:
(1) (a) If an investor disposes of property subject to the fee, the fee must be reduced by the amount of the fee applicable to that property.
(b) Property is disposed of only when it is scrapped or sold in accordance with the lease agreement.
(c) If the investor used any method to compute the fee other than that provided in subsection (D)(2)(a), the fee on the property which was disposed of must be recomputed in accordance with subsection (D)(2)(a) and to the extent that the amount which would have been paid under subsection (D)(2)(a) exceeds the fee actually paid by the investor, the investor must pay the difference with the next fee payment due after the property is disposed of. If the investor used the method provided in subsection (D)(2)(c), the millage rate provided in subsection (D)(2)(c) must be used to calculate the amount which would have been paid under subsection (D)(2)(a).
(d) If there is no provision in the agreement dealing with the disposal of property in accordance with this subsection, the fee remains fixed and no adjustment to the fee is allowed for disposed property.
(2) Any property which is placed in service as a replacement for property which is subject to the fee payment may become part of the fee payment as provided in this item:
(a) Replacement property does not have to serve the same function as the property it is replacing. Replacement property qualifies for fee treatment provided in subsection (D)(2) only up to the original income tax basis of fee property which is being disposed of in the same property tax year. More than one piece of property can replace a single piece of property. To the extent that the income tax basis of the replacement property exceeds the original income tax basis of the property which it is replacing, the excess amount is subject to payments as provided in Section 4-29-60. Replacement property is entitled to the fee payment for the period of time remaining on the twenty-year fee period for the property which it is replacing; provided, however, that where a single piece of property replaces two or more pieces of property, such fee period shall be measured from the earliest of the dates on which the replaced pieces of property were placed in service.
(b) The new replacement property which qualifies for the fee provided in subsection (D)(2) is recorded using its income tax basis and the fee is calculated using the millage rate and assessment ratio provided on the original fee property. The fee payment for replacement property must be based on subsection (D)(2)(a) or (D)(2)(c), if the investor originally used this method, without regard to present value.
(c) In order to qualify as replacement property title to the replacement property must be held by the county.
(d) If there is no provision in the inducement agreement dealing with replacement property, any property placed in service after the five-year period, or seven years in the case of a project which has received an extension, is subject to the payments required by Section 4-29-60 if the county has title to the property, or to property taxes as provided in Chapter 37 of Title 12 if the investor has title to the property.
(G) (1) The county and the investor may enter into an agreement to establish the millage rate (millage rate agreement) for purposes of calculating payments under subsection (D)(2)(a) and the first five years under subsection (D)(2)(c). This millage rate agreement must be executed on the date of the inducement agreement or anytime thereafter up to and including the date of the initial lease agreement. This millage rate agreement may be a separate agreement or may be made a part of either the inducement agreement or the initial lease agreement.
(2) The millage rate cannot be lower than the cumulative property tax millage rate legally levied by or on behalf of all taxing entities within which the subject property is to be located which is the cumulative rate applicable on the thirtieth day of June preceding the calendar year in which the millage rate agreement is executed. If no millage rate agreement is executed before the date of the initial lease agreement, the millage rate is deemed to be the cumulative property tax millage rate applicable on the thirtieth day of June preceding the calendar year in which the initial lease agreement is executed by the parties.
(H) (1) Upon agreement of the parties, and except as provided in subsection (H)(2), an inducement agreement, a millage rate agreement or both may be amended or terminated and replaced with regard to all matters including, but not limited to, the addition or removal of controlled group members; provided, however, that no such amendment or termination and replacement may take place after the initial lease agreement date.
(2) No amendment or replacement of an inducement agreement or millage rate agreement may be used to change the millage rate or discount rate under any such agreement.
(I) Any and all investment expenditures made or incurred by any investor in connection with a project (or relevant phase thereof in connection with a project completed and placed in service in more than one year) shall qualify as expenditures subject to the fee in subsection (D)(2), so long as such expenditures are made:
(1) after the county takes action reflecting or identifying the project or proposed project or investment including, but not limited to, the adoption of an inducement or similar resolution by county council; and
(2) before the end of the applicable five or seven-year period referenced in subsection (C)(2) and (C)(3).
An inducement agreement must be executed within two years after the date on which the county takes action reflecting or identifying the project or proposed project or investment including, but not limited to, the adoption of an inducement or similar resolution by county council; otherwise, only investment expenditures made or incurred by any investor after the date of such inducement agreement in connection with a project shall qualify as expenditures subject to the fee in subsection (D)(2).
(J) (1) Subject to subsection (K), project investment expenditures which are incurred within the applicable time period provided in subsection (I) by an entity whose investments are not being computed in the level of investment for purposes of subsections (B) or (C) shall qualify as investment expenditures subject to the fee in subsection (D)(2) where:
(a) such expenditures are part of the original cost of the property which is transferred, within the applicable time period provided in subsection (I), to one or more other entities which are members of the same controlled group as the transferor entity and whose investments are being computed in the level of investment for purposes of subsections (B) or (C); and
(b) such property would have qualified for the fee in subsection (D)(2) if it had been initially acquired by the transferee entity rather than the transferor entity.
(2) The income tax basis of such property immediately before such transfer must equal the income tax basis of such property immediately after such transfer; provided, however, that to the extent income tax basis of such property immediately after such transfer unintentionally exceeds the income tax basis of such property immediately before such transfer, such excess shall be subject to payments under Section 4-29-60.
(3) The county must agree to any inclusion in the fee of the property described in subsection (J)(1).
(K) (1) Property which has been previously subject to property taxes in South Carolina will not qualify for the fee except as provided in this subsection:
(a) Land, excluding improvements thereon, on which a new project will be located may qualify for the fee even if it has previously been subject to South Carolina property taxes;
(b) Property which has been subject to South Carolina property taxes, but which has never been placed in service in South Carolina, may qualify for the fee; and
(c) Property which has been placed in service in South Carolina and subject to South Carolina property taxes which is purchased in a transaction other than between any of the entities specified in Section 267(b) of the Internal Revenue Code, as defined under Chapter 7 of Title 12 as of the time of the transfer, may qualify for the fee provided the fee-paying entity invests at least an additional eighty-five million dollars in the project.
(2) Repairs, alterations, or modifications to real or personal property which are not subject to a fee will not be eligible for a fee, even if they are capitalized expenditures, except for modifications to existing real property improvements which constitute an expansion of such improvements.
(L) (1) For a project not located in an industrial development park as defined in Section 4-1-170, distribution of the fee in lieu of taxes on the project must be made in the same manner and proportion that the millage levied for school and other purposes would be distributed if the property were taxable. For this purpose, the relative proportions must be calculated based on the following procedure: holding constant the millage rate set in subsection (G) and using all tax abatements automatically granted for taxable property, a full schedule of the property taxes that would otherwise have been distributed to each millage-levying entity in the county must be prepared for the life of the agreement, up to twenty years maximum. These separate schedules must then be reduced to present value using the discount rate provided under subsection (D)(2)(b). The resulting values for each millage-levying entity as a percentage of the present value total for all such entities determines each entity's relative shares of each year's fee payment for all subsequent years of the agreement.
(2) For a project located in an industrial development park as defined in Section 4-1-170, distribution of the fee in lieu of taxes on the project must be made in the manner provided for by the agreement establishing the industrial development park.
(M) As a directly foreseeable result of negotiating the fee, gross revenue of a school district in which a project is located in any year a fee negotiated pursuant to this section is paid, may not be less than gross revenues of the district in the year before the first year for which a fee in lieu of taxes is paid. In negotiating the fee, the parties shall assume that the formulas for the distribution of state aid at the time of the execution of the inducement agreement must remain unchanged for the duration of the lease agreement.
(N) Projects on which a fee in lieu of taxes is paid pursuant to this section are considered taxable property at the level of the negotiated payments for purposes of bonded indebtedness pursuant to Sections 14 and 15 of Article X of the Constitution of this State, and for purposes of computing the index of taxpaying ability pursuant to Section 59-20-20(3). However, for a project located in an industrial development park as defined in Section 4-1-170, projects are considered taxable property in the manner provided in Section 4-1-170 for purposes of bonded indebtedness pursuant to Sections 14 and 15 of Article X of the Constitution of this State, and for purposes of computing the index of taxpaying ability pursuant to Section 59-20-20(3). Provided, however, that the computation of bonded indebtedness limitation is subject to the requirements of Section 4-29-68(E).
(O) (1) (a) Any corresponding interest in each of an inducement agreement, millage rate agreement, and lease agreement (collectively referred to as a "fee interest"), representing an investment of at least eighty-five million dollars (based on income tax basis without regard to depreciation, and regardless of whether such investment comprises all or part of a project), may be transferred by any entity to any entity, whether or not such transferee entity is a member of the same controlled group of which the transferor entity is a member, and (b) any or all equity interests in any partnership, corporation, or other association which properly files its South Carolina income tax returns as a partnership or corporation and which has an interest in an inducement agreement, millage rate agreement, and lease agreement (such equity interests collectively and individually referred to as an "entity interest") may be transferred by any entity to any entity, whether or not such transferee entity is a member of the same controlled group of which the entity in which one or more interests is being transferred is a member, provided that the entity or entities whose entity interest is or are being transferred hold at least an eighty-five million dollar investment (based on income tax basis without regard to depreciation) in the project as of the time of the transfer.
(2) Except for transfers pursuant to subsections (P) or (Q), no transfer of a fee interest or entity interest may be undertaken:
(a) until twenty-four months after the project has been placed in service, or relevant portion thereof in the case of a project placed in service in more than one year; or
(b) within twenty-four months after a prior transfer of the fee interest or entity interest to be transferred.
Provided, however, the running of such applicable twenty-four month period shall be suspended for any period during which a transferor's (under subsection (O)(2)(a)) or transferee's (under subsection (O)(2)(b)) risk of loss with respect to the fee interest or entity interest to be transferred is in fact substantially diminished by:
(i) the holding by any entity of a contractual right to require any transfer of such interest by an entity which is not a member of the transferor's (under subsection (O)(2)(a)) or transferee's (under subsection (O)(2)(b)) controlled group;
(ii) the holding by any entity which is not a member of the transferor's (under subsection (O)(2)(a)) or transferee's (under subsection (O)(2)(b)) controlled group of a right to acquire the interest; or
(iii) a short sale or any similar transaction with respect to the interest which is undertaken by the transferor (under subsection (O)(2)(a)) or transferee (under subsection (O)(2)(b)) which is not a member of any such transferee's or transferor's controlled group.
(3) All transfers of fee interests or entity interests authorized under subsection (O)(1) must meet the following requirements:
(a) The county must approve such transfer within six months prior to the transfer.
(b) The Department of Revenue and Taxation must receive notification in writing of the identity of each transferee and other information required by the Department of Revenue and Taxation within thirty days after the transfer becomes effective. The Department of Revenue and Taxation may extend the thirty-day period upon written request. Failure to meet this notice requirement will not adversely affect the fee, but a penalty may be assessed by the Department of Revenue and Taxation for late notification for up to ten thousand dollars a month or portion of a month, with the total penalty not to exceed one hundred twenty thousand dollars.
(c) No election under Internal Revenue Code of 1986, as amended, Sections 338 or 754 may be made with respect to the transfer.
(4) All transfers of fee interests authorized under subsection (O)(1) must meet the following additional requirements:
(a) The transferor must pay the county any present value fee differential (as defined under subsection (O)(5)) within ninety days after the transfer. Failure to make this payment will result in interest and penalties computed in the same manner and amounts applicable to property tax.
(b) Each transferee must agree to be bound by the applicable agreements constituting the fee arrangement as to that portion of the project to which the transfer relates.
(c) The income tax basis of property interests which are subject to the fee in the hands of the transferee immediately after such transfer (i) cannot exceed the original income tax basis of such property (without regard to depreciation) in the hands of the transferor and (ii) cannot be less than the income tax basis of such property (taking depreciation into account) in the hands of the transferor immediately before transfer. The fee to be paid under subsection (D) with respect to such transferred property interests for the remaining term of the fee shall be recomputed using the transferee's income tax basis immediately after the transfer; the same millage rate and discount rate used by the transferor; and the fee payment method provided under subsection (D)(2)(a); provided, however, that if the pre-transfer fee payments were made under subsection (D)(2)(c), then post-transfer fee payments must be made under subsection (D)(2)(c), but without any present value method applicable to such payments.
(5) The present value fee differential shall mean the amount by which the fee that would have been paid under subsection (D)(2)(a) with respect to the transferred fee interest until the time of the transfer exceeds the amount which was paid under subsection (D)(2)(b) or (D)(2)(c) until such time with respect to such fee interest. If the investor used the method provided in subsection (D)(2)(c), the millage rate provided in subsection (D)(2)(c) must be used to calculate the amount which would have been paid under subsection (D)(2)(a). If subsection (D)(2)(b) is not applicable to such fee interest, or if no present value fee computation was used under subsection (D)(2)(c), no present value fee differential shall be required to be paid on a transfer thereof.
(P) (1) Any interests in an inducement agreement, millage rate agreement, or lease agreement (collectively and individually referred to as a "group fee interest") may be transferred by any entity to:
(a) any corporation which is a member of the same controlled group as the transferring corporation;
(b) any corporation which is a member of the same controlled group as all of the partners comprising the transferring partnership;
(c) any partnership all of the partners of which are members of the same controlled group of which the transferring corporation is a member; and
(d) any partnership all of the partners of which are members of the same controlled group as all of the partners comprising the transferring partnership.
(2) Transfers of group fee interests authorized under subsection (P)(1) must meet the requirements set forth in subsection (O)(3) and (O)(4); provided, however, in connection with subsection (O)(4)(c), to the extent a present value fee payment computation was used by the transferor, the transferee may, if the county agrees, use a fee payment method based on any present value fee payment method provided under subsection (D)(2). In addition, such transfers must involve at least a ten million dollar portion of the project investment or proposed investment (based on income tax basis without regard to depreciation).
(3) Any transfer of an interest in an inducement agreement must include a transfer of a corresponding interest in a millage rate agreement, if any, and lease agreement, if any; any transfer of an interest in a millage rate agreement must include a transfer of a corresponding interest in an inducement agreement, and lease agreement, if any; and any transfer of an interest in a lease agreement must include a transfer of a corresponding interest in an inducement agreement and millage rate agreement.
(4) One or more members of a controlled group, or a partnership all of the partners of which are members of the same controlled group, having an interest in a fee may enter into a sublease, concerning some or all of the project, with any other member of such controlled group, or with any partnership all the partners of which are members of such controlled group, without adversely affecting the fee and without regard to the other provisions of this subsection (P); provided, however, that such sublease may not transfer income tax ownership (as defined under subsection (S)) to the portion of the project which is the subject of the sublease, unless the applicable provisions of subsection (P) have been met.
(Q) (1) Any or all equity interests in any partnership, corporation, or other association which properly files its South Carolina income tax returns as a partnership or corporation and which has an interest in an inducement agreement, millage rate agreement, lease agreement, or any or all of the foregoing (such equity interests collectively and individually referred to as a "group entity interest") may be transferred to:
(a) any corporation which is a member of the same controlled group as the corporation in which an interest is being transferred;
(b) any corporation which is a member of the same controlled group as all of the partners comprising the partnership in which an interest is being transferred;
(c) any partnership in which all of the partners are members of the same controlled group as the corporation in which an interest is being transferred; and
(d) any partnership in which all of the partners are members of the same controlled group as all of the partners comprising the partnership in which an interest is being transferred.
(2) Transfers of group entity interests authorized under subsection (Q)(1) must meet the requirements set forth in subsection (O)(3).
(R) For purposes of subsections (O)(1)(a) and (P), and subject to subsection (U), each transferee shall, with respect to a project which is the subject of a transfer, be considered to have made amounts of qualified investments represented by the property interest which is subject to the fee and which is transferred, without regard to depreciation.
(S) (1) Notwithstanding anything in subsections (O), (P), and (Q), a single entity, or two or more entities which are members of a controlled group, may enter into any lending, financing, security or similar arrangement, or succession of such arrangements, with any financing entity, concerning all or part of a project, provided that the income tax ownership of the property which is subject to the fee payment under subsection (D)(2) is held, by the time the fee payments relating to such property begin under subsection (D)(2), by:
(a) the entity, or one or more members of the controlled group, which entered into the inducement agreement with the county;
(b) one or more transferees permitted under subsection (O)(1)(a) or (P); or
(c) one or more of the entities referenced in items (a) and (b).
Without limiting the foregoing, pursuant to any such arrangement or arrangements, the inducement agreement may permit one or more financing entities: (i) to make investments on behalf of such income tax owner or owners which will qualify for the fee once the property acquired by such investment is transferred to the county and leased or subleased pursuant to the requirements of this section; (ii) to transfer title to property to the county; and (iii) to enter into a lease agreement with the county for the project or portion of the project, provided the property which is subject to the fee is leased or subleased, by the time the fee payments relating to such property begin under subsection (D)(2), to the entity or entities which will be treated as the income tax owners of the project. After the transfer of title to the county and before subsection (D)(2) fee payments begin, subsection (D)(1) fee payments must be made.
(2) Notwithstanding anything in subsections (B), (O), (P), (Q), (S)(1), and (U), a single entity, or two or more entities which are members of a controlled group (the "original transferor"), may enter into any sale-leaseback arrangement (including, without limitation, an assignment, a sublease, or similar arrangement), or succession of such arrangements, with one or more financing entities, concerning all or part of a project, regardless of the identity of the income tax owner of the property which is subject to the fee payment under subsection (D)(2), provided that such sale-leaseback is executed prior to or contemporaneously with the time that fee payments under subsection (D)(2) begin with respect to property which is the subject of a sale-leaseback. Even though income tax basis is changed for income tax purposes, neither the original transfer to the financing entity nor the later transfer from the financing entity back to the original transferor or members of its controlled group, pursuant to terms in the sale-leaseback agreement, will affect the amount of the fee due. Nothing in this subsection (S)(2) shall prohibit a sale-leaseback where income tax ownership of the property which is subject to the fee payment under subsection (D)(2) is held only by the entities identified in subsection (S)(1).
(3) All transfers undertaken with respect to the project to effect a financing authorized under subsection (S)(2) must meet the following requirements:
(a) The county must approve such transfer in advance.
(b) The Department of Revenue and Taxation must receive notification in writing of the identity of each transferee and other information required by the Department of Revenue and Taxation within thirty days after the transfer becomes effective. The Department of Revenue and Taxation may extend such thirty-day period upon written request. Failure to meet this notice requirement will not adversely affect the fee, but a penalty may be assessed by the Department of Revenue and Taxation for late notification for up to ten thousand dollars a month or portion of a month up to a maximum penalty of one hundred twenty thousand dollars.
(c) If the financing entity is the income tax owner of property, the financing entity will be primarily liable for the fee as to that portion of the project to which the transfer relates. The original transferor must also agree to continue to be secondarily liable for the payment of the fee as to that portion of the project to which the transfer relates.
(d) Subsections (O) and (U) will apply to the extent:
(i) the financing entity transfers a fee interest to anyone other than the original transferor or one or more members of its controlled group, or
(ii) the lease to the original transferor is terminated and the fee interest is not transferred back to the original transferor or one or more members of its controlled group.
In addition, within ninety days of the occurrence of items (i) and (ii) in the immediate preceding sentence, the original transferor must pay the county any present value differential as defined in subsection (O)(5).
(4) For purposes of this subsection (S):
(a) The income tax owner of property shall mean the entity or entities which are entitled to depreciation deductions for such property for South Carolina income tax purposes.
(b) Financing entity shall include any entity or entities.
(c) Fee interest shall include any fee interest as defined in subsection (O) and any group fee interest as defined in subsection (P).
(5) The manner in which an arrangement is reported under generally accepted accounting principles shall not adversely affect the authorization of such an arrangement under this section.
(T) No inducement agreement, millage rate agreement, or lease agreement, nor the rights of any entity pursuant to any such agreement, including without limitation the availability of the subsection (D)(2) fee, shall be adversely affected if the bonds issued pursuant to any such agreement are purchased by one or more of the entities which are or become parties to any such agreement.
(U) Notwithstanding any other provision of this section to the contrary, if at any time following the period provided in subsection (C)(2), the investment based on income tax basis without regard to depreciation falls below the eighty-five million dollar minimum investment to which the fee relates and is held by an entity or controlled group of entities, the fee provided in subsection (D)(2) is no longer available and the investor is required to make the payments which are due under Section 4-29-60 for the remainder of the lease period.
(V) The minimum amount of the initial investment provided in subsection (B)(2) of this section may not be reduced except by a special vote which, for purposes of this section, means an affirmative vote in each branch of the General Assembly by two-thirds of the members present and voting, but not less than three-fifths of the total membership in each branch.
(W) (1) The investor shall file the returns, contracts, and other information which may be required by the Department of Revenue and Taxation.
(2) Fee payments, and returns calculating fee payments, are due at the same time as property tax payments and property tax returns would be due if the property were owned by the party obligated to make such fee payments and file such returns.
(3) Failure to make a timely fee payment and file required returns shall result in penalties being assessed as if the payment or return was a property tax payment or return.
(4) The Department of Revenue and Taxation may issue the rulings and promulgate regulations it determines necessary or appropriate to carry out the purpose of this section.
(5) The provisions of Chapters 4 and 54 of Title 12 applicable to property taxes shall apply to this section; and for purposes of such application, the fee shall be considered a property tax. Sections 12-54-20, 12-54-80, and 12-54-155 do not apply to this section.
(X) Except as otherwise expressly provided in subsection (C)(2), any loss of fee benefits under this section shall be prospective only from the date of noncompliance and, subject to subsection (U), only with respect to that portion of the project to which such noncompliance relates; provided, however, that such loss of fee benefits cannot result in the recovery from the fee-paying entity of fee payments for more than:
(1) three years from the date a return concerning the fee is filed for the time period during which the noncompliance occurs, absent a showing of bad faith noncompliance, in which case such three-year period shall instead be a ten-year period; or
(2) ten years if no such return is filed for the time period during which the noncompliance occurs.
(Y) Section 4-29-65 shall be inapplicable with respect to this section. All references in this section to taxes shall be considered to mean South Carolina taxes unless otherwise expressly stated.
(Z) Notwithstanding any provision of Section 4-29-60 or this section:
(1) If at least two hundred new full-time jobs are created within the time period for qualifying expenditures set forth in subsection (I), the minimum level of investment required in order for property to qualify for the payment in lieu of taxes (fee) as provided in this section is sixty million dollars.
(2) If at least three hundred new full-time jobs are created within the time period for qualifying expenditures set forth in subsection (I), the minimum level of investment required in order for property to qualify for the payment in lieu of taxes (fee) as provided in this section is forty million dollars.
(3) If at least four hundred new full-time jobs are created within the time period for qualifying expenditures set forth in subsection (I), the minimum level of investment required in order for property to qualify for the payment in lieu of taxes (fee) as provided in this section is twenty million dollars.
(4) If the dollar amount in item (1), (2), or (3) applies, the applicable amount is substituted for each reference in this section to eighty-five million dollars.
(5) For purposes of this subsection, the terms 'full-time' and 'new job' are defined as provided in Section 12-7-1220."
SECTION 24. Section 4-29-69(A)(2)(b) and (5) of the 1976 Code, as added by Act 123 of 1993, are amended to read:
"(2)(b) is located in a county which is designated at the beginning of the consolidation period as a less-developed county by the South Carolina Tax Commission Department of Revenue pursuant to Section 12-7-1220.
(5) 'Consolidation period' means the eighteen-month period beginning on the first date that assets are transferred to the facility in this State from the manufacturing facility in the other state. The South Carolina Economic Development Board Division of State Development of the South Carolina Department of Commerce shall certify in writing to the South Carolina Tax Commission Department of Revenue the specific date that the consolidation period begins."
SECTION 25. Section 9-1-1535 of the 1976 Code is amended to read:
"Section 9-1-1535. Conservation Enforcement officers of the Law Natural Resources Enforcement section Division of the South Carolina Wildlife and Marine Resources Department shall be of Natural Resources are retired no later than the end of the fiscal year in which they reach their sixty-fifth birthday."
SECTION 26. Section 10-1-100 of the 1976 Code is amended to read:
"Section 10-1-100. All invitations for bid proposals for construction projects (but not including South Carolina Highway Department Department of Transportation projects) issued by the State, its authorities, commissions, departments, committees, or agencies, or any political subdivision of the State, shall set forth in the contract documents, to the extent they are reasonably obtainable by the public awarding authority, those provisions of federal, state, and local statutes, ordinances, and regulations dealing with the prevention of environmental pollution and the preservation of public natural resources that affect or are affected by the projects. If the successful bidder must undertake additional work which was not specified in the invitation for bid proposals or which are due to the enactment of new or the amendment of existing statutes, ordinances, rules, or regulations occurring after the submission of the successful proposal, the awarding agency shall issue a change order, setting forth the additional work that must be undertaken, which shall may not invalidate the contract. The cost of such a this change order to the awarding agency shall must be determined in accordance with the provisions of the contract for change orders or force accounts and that such the additional costs to undertake work not specified in the contract documents shall must not be approved unless written authorization is given the successful bidder/contractor prior to before his undertaking such the additional activity. In the event of a dispute between the awarding agency and the successful bidder/contractor, arbitration procedures may be commenced under the applicable terms of the construction contract under the provisions of Chapter 47, Title 15."
SECTION 27. Section 11-9-825, as last amended by Act 181 of 1993, is further amended to read:
"Section 11-9-825. The staff of the Board of Economic Advisors must be supplemented by the following officials who each shall designate one professional from their individual staffs to assist the BEA staff on a regular basis: the Governor, the Chairman of the House Ways and Means Committee, the Chairman of the Senate Finance Committee, the State Director of the Department of Revenue and Taxation Chairman, and the Director of the Budget Division of the Budget and Control Board. The BEA staff shall meet monthly with these designees in order to solicit their input."
SECTION 28. Section 12-4-15 of the 1976 Code, as added by Act 181 of 1993, is amended to read:
"Section 12-4-15. (A) The Department of Revenue and Taxation must be divided into such divisions as the commissioner of the department or director may prescribe but shall consist of at least the following principal divisions: tax, motor vehicle titling, registration and licensing and commercial motor vehicle services.
(B) Each division shall be supervised by a deputy director or designee of the Department of Revenue and Taxation."
SECTION 29. Section 12-4-30(C) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(C) After February 1, 1995, the department will be governed in matters of policy and administration by a director appointed by the Governor with the advice and consent of the Senate. The director shall possess sound moral character, superior knowledge in taxation, and proven administrative ability and must be an attorney experienced in tax matters or a certified public accountant. The director may be removed from office pursuant to the provisions of Section 1-3-240."
SECTION 30. Section 12-4-40 of the 1976 Code, as last amended by Act 50 of 1991, is further amended to read:
"Section 12-4-40. Each commissioner The director, within thirty days after notice of appointment and before taking office, shall take and file with the Secretary of State the oath of office prescribed by the State Constitution."
SECTION 31. Section 12-4-50 of the 1976 Code, as last amended by Act 50 of 1991, is further amended to read:
"Section 12-4-50. The terms term of office of the commissioners are director is six four years each, with the term of one member expiring every two years. Each commissioner The director shall remain in office until his successor is appointed and qualifies."
SECTION 32. Section 12-4-60 of the 1976 Code, as last amended by Act 50 of 1991, is further amended to read:
"Section 12-4-60. The commissioners director shall receive an annual salary set by the General Assembly and reimbursement for their expenses incurred while engaged in the work of the commission department in the same manner as other state officers."
SECTION 33. The first paragraph of Section 12-4-70 of the 1976 Code, as last amended by Act 50 of 1991, is further amended to read:
"The chairman director of the commission shall devote the time required to perform the duties of the office and may not:"
SECTION 34. Section 12-4-340 of the 1976 Code, as last amended by Section 101 of Act 164 of 1993, is further amended to read:
"Section 12-4-340. The commission department, for the purposes of collecting delinquent taxes due from a taxpayer, may contract with a collection agency, within or without the State, for the collection of delinquent taxes, including penalties and interest as provided in Section 12-54-227."
SECTION 35. Section 12-4-760 of the 1976 Code is amended to read:
"Section 12-4-760. In addition to any right of appeal otherwise provided by law, a taxpayer may appeal from the decision of the commission Administrative Law Judge Division to the Tax Board of Review circuit court for an interpretation of the Constitution or state laws regarding his property tax exemption status upon payment of his property taxes under protest. The county governing body may appeal the decision of the commission Administrative Law Judge Division to the Tax Board of Review circuit court. Appeals under this section are confined to the record."
SECTION 36. The first paragraph of Section 12-21-2423 of the 1976 Code, as amended by Section 22, Part II, Act 497 of 1994, is further amended to read:
"An amount equal to one-fourth of the license tax on admissions to a major tourism or recreation facility collected by the Department of Revenue and Taxation beginning when the facility is open to the general public and ending fifteen years thereafter after that time must be paid to the county or municipality in which the major tourism or recreation facility is located to be used directly or indirectly for additional infrastructure improvements. If the facility is located in an unincorporated area of a county, the payment must be made to the county governing body and, if located within the corporate limits of a municipality, the payment must be made to the municipal governing body. The county or municipal governing body may share funds received from these payments with another county, special purpose district, or municipal governing body to provide additional infrastructure facilities or services in support of the tourism or recreation facility that generates the admission tax revenues responsible for the payments. An additional amount equal to one-fourth of the license tax on admissions to a major tourism or recreation facility collected by the Department of Revenue and Taxation department beginning when the facility is open to the general public and ending fifteen years thereafter after that time must be transferred to the State Treasurer to be deposited into a special tourism infrastructure development fund and distributed pursuant to the approval of the Advisory Coordinating Council for Economic Development of the Department of Commerce as provided in this section. Deposits into the fund must be separated into special accounts based on which facility generated the transfer. Local units of governments within five miles of a major tourism or recreation facility may apply to the council for infrastructure development grants from the special account for which they are eligible. The amount of the funds received by each of the eligible local governments must be determined by the council based upon its review of a grant application submitted by each government. Preference must be given to applications for projects which directly or indirectly serve the generating facility or other development occurring as a result of the generating facility. Grants may run for more than one year and may be based upon a specified dollar amount or a percentage of the funds annually deposited into the special account. After approval of a grant application, the council may approve the release of funds to eligible local governments. Funds must be used directly or indirectly for additional infrastructure improvements provided in this section. The council shall adopt guidelines to administer the fund including, but not limited to, tourism infrastructure development grant application criteria for review and approval of grant applications. Expenses incurred by the council in administering the fund may be paid from the fund."
SECTION 37. Section 12-21-2720(C) of the 1976 Code, as added by Section 19, Part II, Act 164 of 1993, is amended to read:
"(C) In addition to any fees set forth under subsection (A)(3), there is imposed a one-time nonrefundable fee of five hundred dollars on all licenses issued on such the machines for the period between July 1, 1993, and June 30, 1995. The revenue from this fee must be placed in a special account and used exclusively for the purpose of monitoring these machines on a twenty-four hour a day basis. The Tax Commission Department of Revenue is responsible for administering this account and implementing, through regulations as approved by the General Assembly, its requirements."
SECTION 38. Section 12-21-2738 of the 1976 Code, as last amended by Section 19, Part II, Act 164 of 1993, is further amended to read:
"Section 12-21-2738. A person who fails, neglects, or refuses to comply with the terms and provisions of this article or who fails to attach the required license to any machine, apparatus, billiard, or pocket billiard table, as herein required, is subject to a penalty of fifty dollars for each failure, and the penalty must be assessed and collected by the commission department.
If the violation under this section relates to a machine licensed pursuant to Section 12-21-2720(A)(3), the applicable penalty amount is two thousand five hundred dollars, no part of which may be suspended, and one-half of this penalty must be deposited to the credit of the general fund of the State and one-half must be retained by or forwarded to the law enforcement or administrative agency charging the violation."
SECTION 39. Article 20, Chapter 21, Title 12 of the 1976 Code, as added by Section 19, Part II, Act 164 of 1993, is amended to read:
Section 12-21-2770. This article may be cited as the Video Game Machines Act.
Section 12-21-2772. As used in this article:
(1) 'Associated equipment' means a proprietary device, machine, or part used in the manufacture or maintenance of a video game machine including, but not limited to, integrated circuit chips, printed wired assembly, printed wired boards, printing mechanisms, video display monitors, and metering devices.
(2) 'Commission Department' means the South Carolina Tax Commission Department of Revenue.
(3) 'Distributor' means any person who buys and sells or leases video machines or associated equipment in this State. A distributor may also own, operate, service, or repair video machines in this State.
(4) 'Licensed establishment' means an establishment owned or managed by a person who is licensed pursuant to Article 19 of this chapter for the location of coin-operated nonpayout video machines with a free play feature.
(5) 'Machine' means an electronic video games machine that, upon insertion of cash, is available to play or simulate the play of games as authorized by the commission department utilizing a video display and microprocessors in which the player may receive free games or credits that can be redeemed for cash.
(6) 'Manufacturer' means any person that manufactures or assembles and programs machines or associated replacement equipment authorized for sale or use in this State.
(7) 'Net machine income' means money put into the machine minus money paid out in cash. 'Gross machine income' means the sum of all cash/money put into the machine.
(8) 'Machine owner' means any person, other than a distributor, who owns and operates, maintains, repairs, or services one or more machines in licensed establishments. For purposes of this article 'owner/operator' is defined the same as 'machine owner'.
(9) 'Contraband device/equipment' or 'gray area machine' means any unlicensed machine.
Section 12-21-2774. Each machine licensed under this chapter:
(1) may not have any means of manipulation that affect the random probabilities of winning a video game;
(2) shall have one or more mechanisms that accept only coins or cash in the form of bills. The mechanisms must be designed to prevent obtaining credits without paying by stringing, slamming, drilling, or other means;
(3) must have a commission department approved metering device that keeps a record of all cash (total coin accepted and total credit generated by the bill acceptor) inserted into the machine, credits played for video games, and credits won by video players and refunds of winnings and other information as prescribed by the commission department;
(4) must be capable of being accessed on demand by telecommunication from a central computer for purposes of polling or reading device activities and for central computer remote shutdown of machine operations.
Section 12-21-2776. (A) All machines must be registered and licensed by the commission department under procedures and guidelines issued by the commission department.
(B) By July 1, 1995, all machines registered and licensed by the commission department must be equipped with a commission department approved metering device. Each machine owner, operator, or licensed establishment must establish and implement cash controls required by the commission department.
Section 12-21-2778. Each machine must be licensed pursuant to Article 19 of this chapter by the commission department before placement or operation on the premises of a licensed establishment. Each machine must have the license prominently displayed pursuant to Article 19 of this chapter.
Section 12-21-2780. A seal must be affixed to the commission department approved metering device which corresponds to the license as set forth in Section 12-21-2778.
Section 12-21-2782. The commission department shall promulgate rules and regulations regarding the types of machines and equipment that must be licensed and the costs associated with inspection. Notwithstanding the provisions of Section 12-21-2774(1), any machine of a type licensed as of July 1, 1993, in this State and which satisfies the conditions of Section 12-21-2776(B) may continue to operate for five years from July 1, 1993. This section may must not be construed as authorizing cash payouts for credits earned after the effective date of a referendum prohibiting such the payouts.
Section 12-21-2784. Each machine manufacturer, distributor, operator, and licensed establishment must be licensed by the commission department pursuant to Article 19 of this chapter and this article before a machine or associated equipment is manufactured, distributed, sold, or placed for public use in this State.
Section 12-21-2786. The placement of machines in licensed establishments is subject to the provisions of Article 19 of this chapter and the rules and regulations promulgated by the commission department.
Section 12-21-2788. The commission department shall deny or revoke an establishment license for machine placement that does not meet the requirements of Section 12-21-2786 pursuant to the provisions of Section 12-54-90.
Section 12-21-2790. It is unlawful to tamper with a machine with intent to interfere with its proper operation. A person who violates this section is guilty of a felony and, upon conviction, must be imprisoned not more than one year or fined not more than five thousand dollars, or both.
Section 12-21-2791. Any location which operates or allows the operation of coin-operated machines pursuant to Section 12-21-2720(A)(3) which provides payouts authorized pursuant to Section 16-19-60 shall limit the cash payout for credits earned for free games to two thousand five hundred credits per for each player per for each location during any twenty-four hour period. The cash value of credits for each free game shall be is limited to five cents.
Section 12-21-2792. Skimming of machine proceeds is the intentional excluding, or the taking of any action in an attempt to exclude anything or its value from the deposit, counting, collection, or computation of revenues from machines. Whoever commits skimming of machine proceeds is guilty of a felony and, upon conviction, must be imprisoned for not less than one year nor more than ten years, without benefit of probation, parole, or suspension of sentence, and may be fined not more than twenty-five thousand dollars.
Section 12-21-2793. Any location which operates or allows the operation of coin-operated machines pursuant to Section 12-21-2720(A)(3) which provides payouts authorized pursuant to Section 16-19-60 may must not be located within five hundred feet within a county and within three hundred feet in a municipality of a public or private elementary, middle, or secondary school; a public or private kindergarten; a public playground or park; a public vocational or trade school or technical educational center; a public or private college or university; or house of worship. The owner of any location operating in violation of the provisions of this section shall be is guilty of a misdemeanor and shall, upon conviction, must be fined not less than one hundred dollars and not nor more than two hundred dollars or imprisoned for not more than sixty days. Each day of operation shall constitute constitutes a separate violation.
The penalty imposed by this section shall is not be effective until after September 1, 1993. Any location relocating pursuant to this section may apply to the Tax Commission department for the reissuance of a license without charge.
The provisions of this section do not apply with respect to any location with machines with licenses issued before May 30, 1993.
Section 12-21-2794. A person who, with intent to manipulate the outcome, payoff, or operation of a machine by physical tampering or any other means is guilty of a felony and, upon conviction, must be imprisoned not less than one year nor more than five years or fined not more than one thousand dollars, or both.
Section 12-21-2796. A machine owner or distributor who wilfully places a machine on location or who wilfully causes a machine to be operated without the state approved metering device is guilty of a felony and, upon conviction, must be imprisoned for not less than one year nor more than ten years, without benefit of probation, parole, or suspension of sentence, and may be fined not more than twenty-five thousand dollars.
Section 12-21-2798. The commission department shall promulgate rules and regulations pertaining to the machines and persons licensed by it.
Section 12-21-2802. Each machine licensed under this article or Article 19 must have a prominently displayed sign citing the penalties provided by Sections 12-21-2790, 12-21-2792, and 12-21-2794 on the wall above the machine or affixed prominently to the machine. The commission department shall make these signs available free of charge.
Section 12-21-2804. (A) No person shall may apply for, receive, maintain, or permit to be used, and the commission shall department may not allow to be maintained, permits or licenses for the operation of more than eight machines authorized under Section 12-21-2720(A)(3) at a single place or premises for the period beginning July 1, 1993, and ending July 1, 1994. After July 1, 1994, the commission department may not issue nor authorize to be maintained any licenses or permits for more than five machines authorized under Section 12-21-2720(A)(3) at a single place or premises. Any licenses or permits issued for the operation of machines authorized under Section 12-21-2720(A)(3) during the period of July 1, 1993, and July 1, 1994, for a two-year period shall continue in effect after July 1, 1994, provided that. However, during the period of July 1, 1994, and July 1, 1995, no person shall may maintain at a single place or premises more than eight machines authorized under Section 12-21-2720(A)(3). No machine may be licensed or relicensed in any location where the primary and substantial portion of the establishment's gross proceeds is from machines licensed under Section 12-21-2720(A)(3). The commission department shall revoke the licenses of machines located in an establishment which fails to meet the requirements of this section. No license may be issued for a machine in an establishment in which a license has been revoked for a period of six months from the date of the revocation. The term 'gross proceeds' from the machines means the establishment's portion.
(B) No person who maintains a place or premises for the operation of machines licensed under Section 12-21-2720(A)(3) may advertise in any manner for the playing of the machines nor may a person offer or allow to be offered any special inducement to a person for the playing of machines permitted under Section 12-21-2720(A)(3).
(C) No person under twenty-one years of age may receive a payout as a result of the operation of the machines licensed under Section 12-21-2720(A)(3).
(D) No owner, operator, or marketer may be issued a permit by the commission department for machines pursuant to Section 12-21-2720(A)(3) unless the owner, operator, or marketer has been a resident of the State for two years. The commission department shall require a statement of residency to be filed with the commission department as part of the application process for permits issued under Section 12-21-2720(A)(3) on forms and in a manner the commission department considers appropriate.
(E) It is unlawful to operate machines licensed under Section 12-21-2720(A)(3) between the hours of midnight Saturday night and six o'clock a.m. Monday morning.
(F) A person violating subsections (A), (B), (D), or (E) of this section is subject to a fine of up to five thousand dollars to be imposed by the commission department. The commission department, upon a determination that the violation is wilful, may refer the violation to the Attorney General or to the appropriate circuit solicitor for criminal prosecution, and, upon conviction, the person must be fined not more than ten thousand dollars or imprisoned not more than two years, or both. The commission department shall revoke the licenses of any person issued pursuant to the provisions of Article 19 of this chapter for a violation of subsection (C) of this section. Revocation is pursuant to the procedures set forth in Section 12-54-90.
Section 12-21-2806. The cash payouts authorized by Section 16-19-60 of the 1976 Code relating to coin-operated devices may only be continued in any county in South Carolina after June 30, 1995, if a majority of the qualified electors of the county voting in a statewide referendum at the time of the 1994 general election vote in favor of the continued regulation and issuance of these licenses. The State Election Commission must place the question contained herein on the general election ballot in November, 1994. The state election laws shall apply to the referendum, mutatis mutandis. The State Board of Canvassers shall publish the results of the referendum within each county and certify them to the Secretary of State. If the result of this referendum is not in favor of a continuation of cash payouts for credits earned on coin-operated devices within the county, Section 16-19-60 of the 1976 Code shall not apply within such the county after July 1, 1995.
If a majority of the qualified electors within a county vote to terminate cash payoffs for credits earned on coin-operated devices after July 1, 1995, the Tax Commission Department of Revenue shall refund to any person holding a license for the operation of coin-operated devices, on a pro-rata basis, the portion of any license fees previously paid the commission department for licenses which extend beyond July 1, 1995.
The question put before the voters shall read as follows:
'Shall cash payouts for credits earned on coin-operated video game machines remain legal and subject to licensure and regulation by the State of South Carolina after June 30, 1995?'
Section 12-21-2808. In addition to the referendum to be held at the 1994 general election, counties are authorized to hold a referendum to determine whether or not cash payoffs provided for under Section 16-19-60 of the 1976 Code relating to coin-operated devices shall be authorized. The counties are authorized to hold such a referendum in the manner provided in this section except that no such referendum may be held until the 1998 general election and may also be held in subsequent general elections as provided herein.
(1) The referendum must be held:
(a) upon the passage of an ordinance of the governing body of a county providing for a referendum if the ordinance is passed at least ninety days before a general election; or
(b) upon a petition so requesting filed with the county election commission more than ninety days before the general election containing the signatures of at least ten percent, but not more than two thousand five hundred, of the qualified electors of the county as of the time of the preceding general election.
(2) In any county in which cash payoffs are authorized by Section 16-19-60 of the 1976 Code relating to coin-operated devices at the time of the referendum provided for in this section, the question put before the voters shall read as follows:
'Shall cash payoffs for credits earned on coin-operated video game machines remain legal and subject to licensure and regulation by the State of South Carolina?'
(3) In any county in which, at the time of the referendum provided for in this section, cash payoffs as provided for by Section 16-19-60 of the 1976 Code relating to coin-operated devices are not authorized, the question put before the voters shall read as follows:
'Shall cash payoffs for credits earned on coin-operated video game machines be allowed and subject to licensure and regulation by the State of South Carolina?'
(4) If the result of the referendum provided for in this section is not in favor of a continuation of cash payoffs for credits earned on coin-operated devices within the county, Section 16-19-60 of the 1976 Code shall not apply within the county after July first of the year following the referendum.
(5) If the results of the referendum provided for in this section are to authorize cash payoffs relating to coin-operated devices, Section 16-19-60 shall apply within such county after January first of the year following the referendum.
(6) The state election laws apply to the referendum provided in this section, mutatis mutandis.
(7) If a majority of the qualified electors within a county vote to terminate cash payoffs for credits earned on coin-operated devices, in a referendum as authorized in this section, the Tax Commission Department of Revenue shall refund to any person holding a license for the operation of coin-operated devices on a pro rata basis, the portion of any license fees previously paid the commission department for licenses which extend beyond July first of the year after the referendum."
SECTION 40. Section 12-21-5020(4) of the 1976 Code, as added by Section 70, Part II, Act 164 of 1993, is amended to read:
"(4) 'Commission Department' means the South Carolina Tax Commission Department of Revenue."
SECTION 41. Section 12-21-5030 of the 1976 Code, as added by Section 70, Part II, Act 164 of 1993, is amended to read:
"Section 12-21-5030. The commission department shall administer the provisions of this article. Payments required by this article must be made to the commission department on the form provided by it. Dealers are not required to give their name, address, social security number, or other identifying information on the form. The commission department shall collect all taxes under this article."
SECTION 42. Section 12-21-5040 of the 1976 Code, as added by Section 70, Part II, Act 164 of 1993, is amended to read:
"Section 12-21-5040. The commission department may promulgate regulations necessary to enforce this article. The commission department shall adopt a uniform system of providing, affixing, and displaying official stamps, official labels, or other official indicia for marijuana and controlled substances on which a tax is imposed."
SECTION 43. Section 12-21-6010 of the 1976 Code, as added by Section 70, Part II, Act 164 of 1993, is amended to read:
"Section 12-21-6010. Official stamps, labels, or other indicia to be affixed to all marijuana or controlled substances must be purchased from the commission department. The purchaser shall pay one hundred percent of face value for each stamp, label, or other indicia at the time of the purchase."
SECTION 44. Section 12-21-6040(A) of the 1976 Code, as added by Section 70, Part II, Act 164 of 1993, is amended to read:
"(A) The commission department or a public employee may not reveal facts contained in a report or return required by this article or any information obtained from a dealer. Information contained in a report or return or obtained from a dealer may must not be used against the dealer in a criminal proceeding, unless independently obtained, except in connection with a proceeding involving taxes due under this article from the dealer making the return."
SECTION 45. Section 12-21-6050 of the 1976 Code, as added by Section 70, Part II, Act 164 of 1993, is amended to read:
"Section 12-21-6050. The commission department shall credit the proceeds of the tax levied by this article to the general fund of the State."
SECTION 46. Section 12-27-390 of the 1976 Code, as last amended by Section 15, Part II, Act 164 of 1993, is further amended to read:
"Section 12-27-390. (A) One percent of the proceeds from the gasoline tax imposed pursuant to Sections 12-27-230 and 12-27-240 must be transmitted to the Department of Wildlife and Marine Natural Resources to be placed to the credit of a special water recreational resources fund of the state treasury, and all balances in the fund must be carried forward each year so that no part of it reverts to the general fund of the State. All of the funds must be allocated based upon the number of boats or other watercraft registered in each county pursuant to law and expended, subject to the approval of a majority of the county legislative delegation, including a majority of the resident senators, if any, for the purpose of water recreational resources. The amounts allocated must be deducted from the gross proceeds of the gasoline tax imposed under Sections 12-27-230 and 12-27-240 before net proceeds to be distributed pursuant to Section 12-27-380 are determined. This section does not reduce the one cent a gallon license tax credited to the general fund of the State pursuant to Section 12-27-380.
(B) The governing body of any coastal county, upon recommendation of a majority of the legislative delegation, including a majority of the resident senators, shall refund to any person purchasing gasoline for use in commercial or charter fishing boats operated exclusively in the coastal waters of this State all or a portion of the state tax on the gasoline returned to the county pursuant to this section. The refund, if any, must be made pursuant to regulations established by the governing body of the county.
(C) The South Carolina Wildlife and Marine Resources Department of Natural Resources must be reimbursed for engineering, design, rehabilitation, and law enforcement costs incurred in the administration of the provisions of this section, but funds for law enforcement may not exceed one-third of revenues to the special water recreational resources fund. Funds for reimbursement must be transferred from funds collected under the provisions of this section."
SECTION 47. Section 12-27-400 of the 1976 Code, as last amended by Section 17, Part II, Act 497 of 1994, is further amended to read:
"Section 12-27-400. (A) The monies collected pursuant to Section 12-27-240 must be deposited with the State Treasurer and expended for purposes set forth in this section. The monies must be apportioned among the counties of the State in the following manner:
(1) one-third in the ratio which the land area of the county bears to the total land area of the State;
(2) one-third in the ratio which the population of the county bears to the total population of the State as shown by the latest official decennial census; and
(3) one-third in the ratio which the mileage of all rural roads in the county bears to the total rural road mileage in the State as shown by the latest official records of the Department of Transportation. The Department of Revenue and Taxation shall add a line in the sales, use, and local option sales tax return form for the collection of information regarding the number of gallons of gasoline sold in each county for use in making allocations of 'C' funds as provided in this section. The Department of Revenue and Taxation shall submit the percentage of the total represented by each county to the Department of Transportation and to each county transportation committee by the twenty-fifth day of the month following the end of the calendar quarter.
Upon request of a county transportation committee, the Department of Transportation shall continue to administer the funds allocated to the county.
(B) The funds expended must be approved by and used in furtherance of a countywide transportation plan adopted by a county transportation committee. The county transportation committee must be appointed by the county legislative delegation and must be made up of fair representation from municipalities and unincorporated areas of the county. The members of a county transportation committee, in performing its duties under this section, shall be allowed and paid from 'C' fund revenues such subsistence expense and mileage as is paid to members of other state boards and commissions. County transportation committees may join in approving a regional transportation plan, and the funds must be used in furtherance of the regional transportation plan. This subsection does not prohibit the county legislative delegation from making project recommendations to the county transportation committee. A county transportation committee may expend from the funds allocated under this section an amount not to exceed one thousand dollars for reasonable administrative expenses directly related to the activities of the committee. Administrative expenses may include costs associated with copying, mailings, public notices, correspondence, and recordkeeping but do not include the payment of per diem or salaries for members of the committee.
(C) At least twenty-five percent of a county's apportionment of 'C' funds must be expended on the state highway system for construction, improvements, and maintenance. The county transportation committee, at its discretion, may expend up to seventy-five percent of 'C' construction funds for activities including, but not limited to, local paving or improving county roads, for street and traffic signs, and for other paving projects. Roads constructed of rock must consist of not less than one inch nor more than two and one-half inches of rock or its equivalent.
(D) The funds allocated to the county also may be used to issue county bonds or state highway bonds as provided in subsection (J) , pay directly for appropriate projects, including engineering, contracting, and project supervision, and match federal funds available for appropriate projects.
(E) All unexpended 'C' funds allocated to a county remain in the account allocated to the county for the succeeding fiscal year and must be expended as provided in this section.
(F) The countywide and regional transportation plans provided for in this section must be reviewed and approved by the Department of Transportation. Before the expenditure of funds by a county transportation committee, the committee shall adopt specifications for local road projects. In counties electing to expend their allocation directly pursuant to subsection (A), specifications of roads built with 'C' funds are to be established by the countywide or regional transportation committee. In counties in which the county transportation committee elects to have 'C' funds administered by the Department of Transportation, primary and secondary roads built using 'C' funds must meet Department of Transportation specifications.
(G) This section must not be construed as affecting the plans and implementation of plans for a Statewide Surface Transportation System as developed by the Department of Transportation.
(H) For purposes of this subsection, 'donor county' means a county that contributes to the 'C' fund an amount in excess of what it receives under the allocation formula as stated in subsection (A). In addition to the allocation to the counties pursuant to subsection (A), the Department of Transportation annually shall transfer from the state highway fund to the donor counties an amount equal to nine and one-half million dollars in the ratio of the individual donor county's contribution in excess of 'C' fund revenue allocated to the county under subsection (A) to the total excess contributions of all donor counties.
(I) In expending funds under this section, counties that provide for engineering, contracting, and project supervision shall use a procurement system which requires competitive sealed bids and public advertisement of all projects. All bids for contracts in excess of one hundred thousand dollars must be accompanied by certified bid bonds, and all work awarded under the contracts must be covered by performance and payment bonds for one hundred percent of the contract value. Bid summaries must be published in a newspaper of general distribution following each award.
(J) State highway bonds may be issued for the completion of projects for which 'C' funds may be expended for projects as determined by the county transportation committee. The applicable source for payment of principal and interest on the bonds is the share of 'C' fund revenues available for use by the county transportation committee. The application for the bonds must be filed by the county transportation committee with the Commission of the Department of Transportation and the State Treasurer, which shall forward the application to the State Budget and Control Board. The Budget and Control Board shall consider the application in the same manner that it considers state highway bonds, mutatis mutandis.
(K) Members of the committee are insulated from all personal liability arising out of matters related directly to and within the scope of the performance of official duties and functions conferred upon the committee pursuant to this section."
SECTION 48. Section 12-27-1270 of the 1976 Code, as last amended by Section 49, Part II, Act 164 of 1993, is further amended to read:
"Section 12-27-1270. The first eighteen million dollars generated from the tax levied in Sections 12-27-1210, 12-27-1220, 12-27-1230, and 12-27-1240 must be segregated in a separate account for economic development. This account may be expended only upon the authorization of the South Carolina Coordinating Council for Economic Development of the Department of Commerce which shall establish project priorities. Funds devoted to the economic development account must remain in the account if not expended in the previous fiscal year. Annually, funds from the tax levied in Section 12-27-1210 must be deposited to replenish the account to the extent and in an amount necessary to maintain an uncommitted and/or an unobligated, or both, fund balance of eighteen million dollars but not to exceed eighteen million dollars for the ensuing fiscal year. The council may spend no more than two hundred fifty thousand dollars, in the first year only, for a long-term economic development plan which must be submitted to the General Assembly on completion of the plan. The council may spend not more than sixty thousand dollars annually for a state infrastructure model."
SECTION 49. Section 12-36-1710(G) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(G) The Department of Revenue and Taxation and the Division of Aeronautics of the Department of Commerce may not issue a license or transfer of title without first procuring from the Department of Revenue and Taxation information showing that the excise tax has been collected. The Department of Natural Resources may not license any boat or register any motor without first procuring from the Department of Revenue and Taxation information showing that the excise tax has been collected."
SECTION 50. Section 12-36-2570 of the 1976 Code, as last amended by Section 103, Part II, Act 164 of 1993, is further amended to read:
"Section 12-36-2570. (A) The taxes imposed under the provisions of this chapter, except as otherwise provided, are due and payable in monthly installments on or before the twentieth day of the month following the month in which the tax accrues.
(B) On or before the twentieth day of each month, every person on whom the taxes under this chapter are imposed shall render to the commission department, on a form prescribed by it, a true and correct statement showing, by location, the gross proceeds of wholesale and retail sales of his business, and sales price of the property purchased for storage, use, or consumption in this State, together with other information the commission department may require.
(C) At the time of making a monthly report, the person shall compute the taxes due and pay to the commission department the amount of taxes shown to be due. A return is considered to be timely filed if the return is mailed and has a postmark dated on or before the date the return is required by law to be filed.
(D) The commission department may permit the filing of returns every twenty-eight days. These returns must be filed within twenty days following the period covered by the return.
(E) The commission department may enter into an agreement with a taxpayer which allows the taxpayer to remit the tax on statistical factors as set forth in the agreement. This method of reporting only applies to purchases by the taxpayer for its use, storage, or consumption, and not to purchases by the taxpayer for resale."
SECTION 51. The second paragraph of Section 12-36-2610 of the 1976 Code, as last amended by Section 98, Part II, Act 164 of 1993, is further amended to read:
"In no case is a discount allowed if the return, or the tax on it is received after the due date, pursuant to Section 12-36-2570, or after the expiration of any extension granted by the commission department. The discount permitted a taxpayer under this section may not exceed three thousand dollars during any one state fiscal year. However, a person making sales into this State who cannot be required to register for sales and use tax under applicable law but who nevertheless voluntarily registers to collect and remit use tax on items of tangible personal property sold to customers in this State is entitled to a discount on returns filed as otherwise provided in this section not to exceed ten thousand dollars during any one state fiscal year."
SECTION 52. The first paragraph of Section 12-37-930 of the 1976 Code is amended to read:
"All property shall must be valued for taxation at its true value in money which in all cases shall be held to be is the price which the property would bring following reasonable exposure to the market, where both the seller and the buyer are willing, are not acting under compulsion, and are reasonably well informed as to the uses and purposes for which it is adapted and for which it is capable of being used. Provided, however, that Acreage allotments or marketing quota allotments for any a commodity as established under any a program of the United States Department of Agriculture shall be are classified as incorporeal hereditaments, and the market value of any real property to which they are attached shall may not include the value, if any, of such the acreage allotment or marketing quota. Provided, further, Fair market value of manufacturer's machinery and equipment used in the conduct of the manufacturing business, excluding, however, vehicles licensed by the Highway Department Department of Revenue, boats, and airplanes shall must be determined by reducing the original cost by an annual allowance for depreciation as stated in the following schedule."
SECTION 53. The last paragraph of Section 12-37-930 of the 1976 Code, as last amended by Section 81, Part II, Act 164 of 1993, is further amended to read:
"Notwithstanding the percentage allowance stated in the schedule above, the commission department, after examination of the relevant facts, may permit an adjustment in the percentage allowance, with the total allowance not to exceed twenty-five percent, on account of extraordinary obsolescence. The commission department may set forth a depreciation allowance, instead of the depreciation allowance provided in this section, not to exceed twenty-five percent where the taxpayer can provide relevant data concerning a useful life of the machinery and equipment which is different from the period shown in this section."
SECTION 54. Section 12-37-2680 of the 1976 Code, as last amended by Section 214, Act 181 of 1993 and Section 22UU, Part II, Act 164 of 1993, is further amended to read:
"Section 12-37-2680. The assessed value of the vehicle must be determined as of the first day of the month preceding the beginning of the tax year for the vehicles. The assessed values must be published in guides or manuals by the South Carolina Department of Revenue and Taxation and provided to the auditor of each county as often as may be necessary to provide for current values. When the value of any vehicle is not set forth in the guide or manual, the auditor shall determine the value from other available information. Any person aggrieved by the valuation of his motor vehicle may appeal, within thirty days of the auditor's decision, to the South Carolina Department of Revenue and Taxation Administrative Law Judge Division and the department presiding administrative law judge may increase, decrease, or affirm the value so determined. Appeals under this section are confined to the record."
SECTION 55. Subsection (A) of Section 12-43-300 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 12-43-300. (A) Whenever the market value estimate of any property is fixed by the assessor at a sum greater by one thousand dollars or more than the amount returned by the owner or his agent, or whenever any property is valued and assessed for taxation which has not been returned or assessed previously, the assessor shall, on or before July first, or as soon thereafter as may be practicable, in the year in which the valuation and assessment is made give written notice thereof to the owner of the property or his agent. In reassessment years, the written reassessment notice to owners or agents must be given by July first. If there is no timely written notice, the prior year's assessed value must be the basis for assessment for the current taxable year. The notice must include the prior market value, the total market value estimate, the value estimate if applicable, the assessment ratio, the total new assessment, the percentage changes over the prior market value, if there is no change in use or physical characteristics of the property, number of acres or lots, location of property, tax map, appeal procedure, and other pertinent ownership and legal description data required by the South Carolina Department of Revenue and Taxation. The notice may be served upon the owner or his agent personally or by mailing it to the owner or his agent at his last known place of residence which may be determined from the most recent listing in the applicable telephone directory, Department of Revenue and Taxation Motor Vehicle Registration List, county treasurer's records, or official notice from the property owner or his agent. The owner or his agent, if he objects to the valuation and assessment, shall serve written notice of his objection upon the assessor within thirty days of the date of the mailing of the notice. In years when there is no notice of appraisal because of a less than one thousand dollar change or no change in the appraised or assessed value, the owner or agent has until March first to serve written notice of objection upon the assessor of the appraised or assessed value. In those years, failure to serve written notice of objection by March first constitutes a waiver of the owner's right of appeal for that tax year and the assessor is not required to review any request filed after March first. The assessor shall then schedule a conference with the owner or agent within twenty days of receipt of the notice. If the assessor requests it, the owner, within thirty days after the conference, shall complete and return to the assessor the form as may be approved by the Department of Revenue and Taxation relating to the owner's property and the reasons for his objection. Within thirty days after the conference, or as soon thereafter as practicable, the assessor shall mail written notice of his action upon the objection to the owner. The owner or agent, if still aggrieved by the valuation and assessment, may appeal from the action to the Board of Assessment Appeals by giving written notice of the appeal and the grounds thereof to the assessor within thirty days from the date of the mailing of the notice. The assessor shall notify promptly the Board of Assessment Appeals of the appeal.
Any property owner, his agent, or the assessor may appeal from the finding of the board upon written notice to the Administrative Law Judge Division within thirty days from the date of the board's finding. The grounds for the appeal shall be filed with the board. The board, shall, upon receipt of the Notice of Appeal, deliver a copy thereof to the assessor or the owner. Appeals under this section are confined to the record."
SECTION 56. Section 12-53-220 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 12-53-220. When a jeopardy assessment has been made pursuant to Section 12-53-210, the collection of the whole or any amount of such the assessment may be stayed by filing with the Department of Revenue and Taxation, within such a time as may be fixed by regulations prescribed by the department, a bond in an amount as to which a stay is desired, conditioned for the payment of the amount hereinafter specified at the time when such the tax would be due if such a tax is not due at the time of the making of such a jeopardy assessment, or if such the tax is due or overdue at the time of the making of such a jeopardy assessment, at such the time as may be fixed by such regulations. A bond as contemplated in this article shall must be in the form of a surety bond issued by a surety company licensed to do business in South Carolina by the insurance department Department of Insurance of this State, or cash which shall may not bear interest, or negotiable securities subject to the approval of the State Treasurer. The bond in all instances would be conditioned upon the payment of the full amount of the assessment together with applicable interest, penalties, and costs of collection."
SECTION 57. Section 13-1-10, as added by Act 181 of 1993, is amended to read:
"Section 13-1-10. (A) The Department of Commerce is established as an administrative agency of state government which is comprised of a Division of State Development, a Division of Savannah Valley Development, a Division of Aeronautics, a Division of Public Railways, and an Advisory a Coordinating Council for Economic Development. Each division of the Department of Commerce shall have such functions and powers as provided for by law.
(B) All functions, powers, and duties provided by law to the State Development Board, the Savannah Valley Authority, the South Carolina Aeronautics Commission, the South Carolina Public Railways Commission, and the Coordinating Council for Economic Development, its officers or agencies, are hereby transferred to the Department of Commerce together with all records, property, personnel, and unexpended appropriations. All rules, regulations, standards, orders, or other actions of these entities shall remain in effect unless specifically changed or voided by the department in accordance with the Administrative Procedures Act."
SECTION 58. Article 7, Chapter 1, Title 13 of the 1976 Code, as added by Act 181 of 1993, is amended to read:
Section 13-1-1110. The organization and objectives of the Division of Aeronautics, a division of the Department of Commerce are stated in Chapters 1 through 9 of Title 55."
SECTION 59. Article 11, Chapter 1, Title 13 of the 1976 Code, as last amended by Section 22, Part II, Act 497 of 1994, is further amended to read:
Section 13-1-1710. There is hereby created the Advisory Coordinating Council for Economic Development. The membership shall consist of the Director of the Department Secretary of Commerce, the Commissioner of Agriculture, the Chairman of the South Carolina Employment Security Commission, the Director of the South Carolina Department of Parks, Recreation and Tourism, the Chairman of the State Board for Technical and Comprehensive Education, the Chairman of the South Carolina Ports Authority, the Chairman of the South Carolina Public Service Authority, the Chairman of the South Carolina Jobs Economic Development Authority, the Chairman Director of the South Carolina Department of Revenue and Taxation, and the Chairman of the Small and Minority Business Expansion Council, and the Chairman of the South Carolina Research Authority. The Director of the Department Secretary of Commerce shall serve as the chairman of the advisory coordinating council.
Section 13-1-1720. (A) The advisory coordinating council shall meet at least quarterly. It shall enhance the economic growth and development of the State through strategic planning and coordinating activities which must include:
(1) development and revision of a strategic state plan for economic development. 'Strategic state plan for economic development' means a planning document that outlines strategies and activities designed to continue, diversify, or expand the economic base of South Carolina, based on the natural, physical, social, and economic needs of the State;
(2) monitoring implementation of a strategic plan for economic development through an annual review of economic development activities or the previous year and modifying the plan as necessary;
(3) coordination of economic development activities of member agencies of the advisory coordinating council and its advisory committees;
(4) use of federal funds, foundation grants, and private funds in the development, implementation, revision, and promotion of a strategic plan for economic development;
(5) evaluation of plans and programs in terms of their compatibility with state objectives and priorities as outlined in the strategic plan for economic development.;
(6) approval of infrastructure development grants for local units of government pursuant to Section 12-21-2423.;
(7) authorization of expenditures from the economic development account as provided in Section 12-27-1270.
(B) The advisory coordinating council may not engage in the delivery of services.
Section 13-1-1730. The advisory coordinating council shall make reports to the Governor, the chairmen of the Senate Finance and House Ways and Means Committees, and the General Assembly at least annually in the Department of Commerce's annual report on the status and progress of economic development goals which have been set for the State as a part of the ongoing planning process and on the commitments, expenditures, and balance of the Economic Development Account, with appropriate recommendations.
Section 13-1-1740. (A) The advisory coordinating council shall make recommendations to the Governor, the General Assembly, and the State Budget and Control Board as to the policies and programs involved in the state's economic development it considers necessary to carry out the objectives of the strategic plan.
(B) The advisory coordinating council shall review agency requests for legislative appropriations for economic development and may make recommendations to the Budget and Control Board and the General Assembly concerning requests compatible with the objectives of the strategic plan. Nothing in this section limits an agency's direct access to the General Assembly, and comment by the advisory coordinating council is not a part of the budget process.
Section 13-1-1750. Funds for technical, administrative, and clerical assistance and other expenses of the advisory coordinating council must be provided by the member agencies. The advisory coordinating council may establish technical advisory committees in order to assist in the development of a strategic plan for economic development. The advisory coordinating council shall seek to utilize data relevant to the economic growth and development of the State which is available from the Department of Transportation, the University of South Carolina, Clemson University, and other state agencies and organizations.
Section 13-1-1760. If any provision of Sections 13-1-1710 through 13-1-1760 is in conflict with any existing provisions of law pertaining to the member agencies of the advisory coordinating council, notwithstanding the fact that the provisions of law contained in Sections 13-1-1710 through 13-1-1760 have a later effective date, the prior provision controls. Neither Sections 13-1-1710 through 13-1-1760 nor the advisory coordinating council shall infringe upon nor diminish the self-governing autonomy of the agencies involved."
SECTION 60. Section 13-17-40 of the 1976 Code, as last amended by Act 248 of 1991, is further amended to read:
"Section 13-17-40. The authority shall consist consists of a board of twenty-two trustees that includes the following ex officio members: President of the Council of Private Colleges of South Carolina, Chairman of the South Carolina Commission on Higher Education, President of Clemson University, President of the Medical University of South Carolina, President of South Carolina State College, President of the University of South Carolina, President of Francis Marion College, Chairman of the State Board for Technical and Comprehensive Education, Chairman of the State Development Board Secretary of Commerce or his designee, Governor of South Carolina or his designee, and Chairman of the Technical Advisory Board of the Authority.
The Governor shall name the chairman who must not be a public official and who shall serve at the pleasure of the Governor.
The remaining ten trustees must be elected by the board of trustees from a list of nominees submitted by an ad hoc committee named by the chairman and composed of the members serving as elected trustees. The original elected trustees must be the same members serving as elected trustees on the authority's predecessor organization on January 1, 1983, for the terms specified by the bylaws of the authority's predecessor. Each of the Congressional Districts of South Carolina shall must have at least one of the ten trustees.
Terms of elected trustees are for four years, and half shall expire every two years. No elected trustee shall may serve more than two consecutive four-year elected terms. Vacancies must be filled for the unexpired term in the manner of original appointment.
Ex officio trustees shall serve as long as they are elected or appointed to their respective offices. In the event of a vacancy of a public sector trustee, the person who temporarily performs the official's functions shall serve as an interim trustee until a new official is elected or appointed.
A vacancy occurs upon the expiration of the term of service, death, resignation, disqualification, or removal of any a trustee. No trustee shall may receive a salary for his services as a trustee;. However, all shall must be reimbursed for actual expenses incurred in service to the authority.
The board annually shall annually submit a report to the General Assembly including information on all acts of the board of trustees together with a financial statement and full information as to the work of the authority. The board shall hire a director who shall maintain through a designated agent accurate and complete books and records of account, custody, and responsibility for the property and funds of the authority and control over the authority bank account. The director, with the approval of the board, has the power to appoint officers and employees, to prescribe their duties, and to fix their compensation. The board of trustees shall select a reputable certified public accountant to audit the books of account at least once each year.
Regular meetings of the board of trustees must be held at such the time and place as the board of trustees may determine. Special meetings of the board of trustees may be called by the chairman when reasonable notice is given."
SECTION 61. The first two unnumbered paragraphs of Section 16-3-1120 of the 1976 Code, as last amended by Act 181 of 1993, are further amended to read:
"Section 16-3-1120. A director of the Victim's Compensation Fund must be appointed by the Governor and shall serve at his pleasure. The director is responsible for administering the provisions of this article. Included among the duties of the director is the responsibility, with approval of after consultation with the South Carolina Crime Victim's Advisory Board as established in this article, for developing and administering a plan for informing the public of the availability of the benefits provided under this article and procedures for filing claims for the benefits.
The director, upon approval by the South Carolina Crime Victim's Advisory Board, has the following additional powers and duties:"
SECTION 62. Section 16-3-1130(3) of the 1976 Code, as last amended by Act 181 of 1989, is further amended to read:
"(3) The field representative conducting the investigation shall file with the deputy director a written report setting forth a recommendation and his reason for the recommendation. The deputy director shall render a written decision and furnish the claimant with a copy of the decision."
SECTION 63. Section 16-3-1140 of the 1976 Code, as last amended by Act 181 of 1989, is further amended to read:
"Section 16-3-1140. (1) The claimant may, within thirty days after receipt of the report of the decision of the Deputy Director director make an application in writing to the Deputy Director director for review of the decision.
(2) Upon receipt of an application for review pursuant to subsection (1) of this section, the Deputy Director director shall forward all relevant documents and information to the Chairman of the Crime Victim's Advisory Board. The Chairman chairman shall appoint a three-member panel of the Board board which shall review the records and affirm or modify the decision of the Deputy Director director; provided, that the Chairman chairman may order, in his discretion, that any particular case must be heard by the full Board board. If considered necessary by the Board board or its panel or if requested by the claimant, the Board board or its panel shall order a hearing prior to rendering a decision. At the hearing any relevant evidence, not legally privileged, is admissible. The Board board or its panel shall render a decision within ninety days after completion of the investigation. The action of the Board board or its panel is final and nonappealable. If the Deputy Director director receives no application for review pursuant to subsection (1), his decision becomes the final decision of the Victim's Compensation Fund.
(3) The Board board or its panel, for purposes of this article, may subpoena witnesses, administer or cause to be administered oaths, and examine such parts of the books and records of the parties to proceedings as relate to questions in dispute.
(4) The Deputy Director director shall within ten days after receipt of the Board's board's or panel's final decision make a report to the claimant including a copy of the final decision and the reasons why the decision was made."
SECTION 64. Section 16-3-1150 of the 1976 Code, as last amended by Act 181 of 1989, is further amended to read:
"Section 16-3-1150. Notwithstanding the provisions of Section 16-3-1130, if it appears to the deputy director that the claim is one with respect to which an award probably will be made and undue hardship will result to the claimant, if immediate payment is not made, the deputy director may make one or more emergency awards to the claimant pending a final decision in the case, provided that (a) the amount of each emergency award shall not exceed five hundred dollars, (b) the total amount of such emergency awards shall not exceed one thousand dollars, (c) the amount of such emergency awards must be deducted from any final award made to the claimant, and (d) the excess of the amount of any emergency award over the amount of the final award, or the full amount of any emergency award if no final award is made, must be repaid by the claimant to the Victim's Compensation Fund as created by this article."
SECTION 65. Section 16-3-1200 of the 1976 Code is amended to read:
"Section 16-3-1200. In determining the amount of an award, the Deputy Director director, the board, or its panel shall determine whether because of his conduct the victim or intervenor of such crime contributed to the infliction of his injury, and the Deputy Director director, the Board board, or its panel may reduce the amount of the award or reject the claim altogether in accordance with such determination; provided, however, the Deputy Director director, the Board board, or its panel may disregard for this purpose the contribution of an intervenor for his own injury or death where the record shows that the contribution was attributable to efforts by the intervenor as set forth in subsection (8) of Section 16-3-1110."
SECTION 66. Section 16-3-1230(3) of the 1976 Code is amended to read:
"(3) Claims must be filed in the office of the Deputy Director director by mail or in person. The Deputy Director director shall accept for filing all claims submitted by persons eligible under subsection (1) of this section and meeting the requirements as to the form of the claim contained in the regulations of the Board board."
SECTION 67. Section 16-3-1260 of the 1976 Code is amended to read:
"Section 16-3-1260. (1)Any A payment of benefits to, or on behalf of, a victim or intervenor or eligible family member under this article shall create creates a debt due and owing to the State by any a person found in a court of competent jurisdiction of this State to have committed such the criminal act.
(2) The circuit court, when placing on probation any a person who owes a debt to the State as a consequence of a criminal act, may set as a condition of probation the payment of the debt or a portion of the debt to the State. The court also may also set the schedule or amounts of payments subject to modification based on change of circumstances.
(3) The Department of Probation, Parole and Community Corrections shall Pardon Services also have has the right to make payment of the debt or a portion of the debt to the State a condition of parole.
(4) When a juvenile is adjudicated delinquent in a family court proceeding involving a crime upon which a claim under this article can be made, the family court in its discretion may order that the juvenile pay the debt to the Victim's Compensation Fund as created by this article as an adult would have to pay had an adult committed the crime. Any assessments so ordered may be made a condition of probation as provided in Section 20-7-1330.
(5) Payments authorized or required under this section must be paid to the Victim's Compensation Fund. The Director of the Victim's Compensation Fund shall coordinate the development of policies and procedures for the South Carolina Department of Corrections, the South Carolina Office of Court Administration, and the South Carolina Board Department of Probation, Parole and Community Corrections Pardon Services to assure that victim restitution programs are administered in an effective manner to increase payments into the Compensation Fund.
(6) Restitution payments to the Victim's Compensation Fund may be made by the Department of Corrections from wages accumulated by offenders in its custody who are subject to this article, except that offenders wages shall must not be used for this purpose if such the monthly wages are at or below minimums required to purchase basic necessities."
SECTION 68. Section 16-3-1300 of the 1976 Code, as last amended by Act 489 of 1984, is further amended to read:
"Section 16-3-1300. Any award made under this article must be paid in accordance with the discretion and decision of the Deputy Director director as to the manner of payment, subject to the regulations of the board and not inconsistent with the Board's board's or panel's award. No award made pursuant to this article is subject to garnishment, execution, or attachment other than for expenses resulting from the injury which is the basis for the claim. In every case providing for an award to a claimant under this article, the Deputy Director director, the Board board, or its panel may, if in its opinion the facts and circumstances of the case warrant it, convert the award to be paid into a partial or total lump sum, without discount."
SECTION 69. Section 16-3-1340 of the 1976 Code, as last amended by Act 181 of 1989, is further amended to read:
"Section 16-3-1340. A claimant may be represented by an attorney in proceedings under this article. Fees for such attorney must be paid from the Victim's Compensation Fund, subject to the approval of the Director director, except that in the event of an appeal pursuant to Section 16-3-1140, attorneys' fees are subject to the approval of the Board board or its panel hearing the appeal. Attorneys for the South Carolina Workers' Compensation Fund shall represent the South Carolina Victim's Compensation Fund in proceedings under this article.
Any person who receives any fee or other consideration or any gratuity on account of services so rendered, unless such consideration or gratuity is approved by the Deputy Director director, or who makes it a business to solicit employment for a lawyer or for himself in respect to any claim or award for compensation is guilty of a misdemeanor and, upon conviction, must for each offense, be punished by a fine of not more than five hundred dollars or by imprisonment not to exceed one year, or by both such fine and imprisonment."
SECTION 70. Section 16-3-1410 of the 1976 Code is amended to read:
"Section 16-3-1410. The Victim Victim's Compensation Fund is authorized to provide the following victim assistance services, contingent upon an appropriation of funds therefor by the General Assembly:
(A) Provide information, training, and technical assistance to state and local agencies and groups involved in victim/witness and domestic violence assistance, such as the Attorney General's Office, the solicitors' offices, law enforcement agencies, judges, hospital staff, rape crisis centers, and spouse abuse shelters.
(B) Provide recommendations to the Governor and General Assembly on needed legislation and services for victims.
(C) Serve as a clearinghouse of victim/witness information.
(D) Develop guidelines for the implementation of victim/witness assistance programs.
(E) Develop ongoing public awareness and programs to assist victims, such as newsletters, brochures, television and radio spots and programs, and news articles.
(F) Provide staff support for a state level advisory group representative of all agencies and groups involved in victim/witness and domestic violence services to improve coordination efforts.
(G) Coordinate the development and implementation of policy and guidelines for the treatment of victims/witnesses with appropriate agencies, with initial emphasis in the following three areas:
(1) The State Victim/Witness Program shall work with the solicitors of this State, the Attorney General's Office, and relevant professional organizations to develop guidelines for solicitors to follow in the handling of victims, to include but not be limited to:
(a) Periodically informing victims of the status of a case.
(b) Providing information to the court on the views of victims of violent crime on bail decisions, continuances, plea bargains, dismissals, sentencing, and restitution.
(c) Pursuing charges of defendants who harass, threaten, injure, or otherwise attempt to intimidate or retaliate against victims or witnesses.
(d) Utilizing a victim and witness on-call system.
(e) Developing procedures for the prompt return of victims' property.
(f) Considering the views of victims and witnesses concerning the use of case continuances.
(g) Informing the solicitors' offices about victim assistance units and their effectiveness.
(h) Informing victims of the availability of civil as well as criminal redress.
(2) The State Victim/Witness Program shall assist the Office of Court Administration and South Carolina Sentencing Guidelines Commission in developing guidelines for all judges to follow in the handling of victims, to include but not be limited to:
(a) Scheduling of court proceedings and an on-call notification system.
(b) Separate waiting rooms for prosecution and defense witnesses.
(c) Special weight for a victim's interests when considering requests for continuances.
(d) Special weight must be given to the victim's interest in speedy return of property before trial in ruling on the admissibility of photographs of that property.
(e) Child sexual assault/incest victims must be given practical legal support by allowing them videotape, legal transcript, or closed session testimony.
(3) The State Victim/Witness Program shall work with the appropriate law enforcement officers' associations and other relevant organizations to develop guidelines and model policies for law enforcement agencies to utilize in handling and working with victims of crime."
SECTION 71. Section 16-3-1550 of the 1976 Code, as last amended by Act 579 of 1988, is further amended to read:
"Section 16-3-1550. (A) The provisions of this section govern the disposition of any offense within the jurisdiction of the General Sessions Court general sessions court, excluding any crime for which a sentence of death is sought, in any case which involves an identified victim whose whereabouts are known. At the option of the solicitor, the provisions of this section also may be extended into the family court in conjunction with the prosecution of juvenile offenders.
(B) It is the responsibility of the solicitor's Victim or/Witness Assistance Unit unit in each judicial circuit or a representative designated by the solicitor or law enforcement agency handling the case to advise all victims of their right to submit to the court, orally or in writing at the victim's option, a victim impact statement to be considered by the judge at the sentencing or disposition hearing in general sessions court and at a parole hearing. The solicitor's office or law enforcement agency shall provide a copy of the written form to any victim who wishes to make a written report. In those cases which the solicitor determines that there has been extensive or significant impact on the life of the victim, the Victim or/Witness Assistance Unit unit shall assist the victim in completing the form. The victim shall submit this statement to the solicitor's office within appropriate time limits set by the solicitor to be filed in the court records by the solicitor's office so it may be available to the defense for a reasonable period of time prior to sentencing. The court shall allow the defendant to have the opportunity to rebut the victim's written statement if the court decides to review any part of the statement before sentencing. If the defendant is incarcerated, the solicitor shall forward a copy of the impact statement and copies of all completed Victim/Witness Notification Requests to the Department of Corrections and to the Parole and Community Corrections Board Department of Probation, Parole and Pardon Services. In the case of juvenile offenders, if the solicitor so opts, a copy shall be forwarded to the appropriate office of the Department of Juvenile Justice if the disposition of the case involves any level of supervision by that agency. Solicitors shall begin using these victim impact statements no later than January 1, 1985.
(C) The Attorney General's Office Executive Director of the Commission on Prosecution Coordination, in coordination with the solicitors, shall develop a standard form forms for the victim impact statement. For this purpose, the Attorney General executive director may seek the assistance of any other state agency or department in developing this form. The Attorney General's office shall distribute this form to all solicitor's offices no later than November 1, 1984.
(D) The victim impact statement shall:
(1) Identify the victim of the offense;
(2) Itemize any economic loss suffered by the victim as a result of the offense;
(3) Identify any physical and psychological injury suffered by the victim as a result of the offense, along with its seriousness and permanence;
(4) Describe any changes in the victim's personal welfare or familial relationships as a result of the offense;
(5) Identify any request for psychological services initiated by the victim or the victim's family as a result of the offense;
(6) Contain any other information related to the impact of the offense upon the victim; and
(7) The original of the statement must be included in the court file with one copy for the solicitor and one copy for the victim upon request.
(E)(F) No sentence may be invalidated because of failure to comply with the provisions of this section. This section must not be construed to create any cause of action for monetary damages."
SECTION 72. Section 17-17-100 of the 1976 Code is amended to read:
"Section 17-17-100. Any A judge before whom a petition for a writ of habeas corpus is made by any a person confined by the State Board Department of Corrections in any of its places of confinement who has been tried and convicted by a court of competent jurisdiction, shall upon issuance of the writ of habeas corpus, shall transfer the matter for hearing to any a judge of any a court of competent jurisdiction in the county where the person was convicted."
SECTION 73. Section 17-22-120 of the 1976 Code, as last amended by Act 499 of 1992, is further amended to read:
"Section 17-22-120. In any a case in which an offender agrees to an intervention program, a specific agreement must be made between the solicitor and the offender. This agreement shall must include the terms of the intervention program, the length of the program and a section stating the period of time after which the prosecutor will either dismiss the charge or seek a conviction based upon that charge. The agreement must be signed by the offender and his or her counsel, if represented by counsel, and filed in the solicitor's office. The Commission on Department of Alcohol and Other Drug Abuse Services shall provide training if requested on the recognition of alcohol and drug abuse to counselor employees of local pretrial intervention programs, and the local agency authorized by Section 61-5-320 shall provide services to alcohol and drug abusers if referred by pretrial intervention programs. However, no services may be denied due to an offender's inability to pay."
SECTION 74. Section 17-25-80 of the 1976 Code is amended to read:
"Section 17-25-80. Notwithstanding the specific language of the sentence which confines an inmate to 'hard labor' in the custody of the State Department of Corrections, the Commissioner thereof director may assign such the inmate to the type of labor he deems considers appropriate and necessary for the benefit of the department and the inmate concerned, and such the assignment shall fulfill the conditions of the sentence."
SECTION 75. Section 17-25-145 of the 1976 Code is amended to read:
"Section 17-25-145. The Department of Probation, Parole and Community Corrections Pardon Services must implement a community penalties program in each judicial circuit of the State. The department at its discretion may operate the program or contract with public or private agencies for necessary services. Agencies or individuals may contract to prepare individual community penalty program plans for offenders in a particular judicial circuit as prescribed by the department."
SECTION 76. Section 17-25-370 of the 1976 Code is amended to read:
"Section 17-25-370. In all criminal cases in which the sentence of death is imposed and which are appealed to the Supreme Court or in which notice of intention to appeal is given, when the judgment below has been affirmed or the appeal dismissed or abandoned, the clerk of the Supreme Court, when the remittitur is sent down or the appeal is dismissed or abandoned, shall notify the Commissioner director of the prison system or his duly appointed officer in charge of the State Penitentiary of the final disposition of such the appeal and, on the fourth Friday after the receipt of such the notice the sentence appealed from shall must be duly carried out as provided by law in such cases, unless stayed by order of the Supreme Court or respite or commutation of the Governor."
SECTION 77. Section 17-25-380 of the 1976 Code is amended to read:
"Section 17-25-380. Two copies of the notice shall must be served or sent by registered mail to the Commissioner director of the prison system or his duly appointed officer in charge of the State Penitentiary. The notice, when the sentence has been affirmed, shall must read substantially as follows: 'This is to notify you that the sentence of death imposed in the case of State vs. _______ from which an appeal has been taken has been affirmed and finally disposed of by the Supreme Court and the remittitur has been sent down to the clerk of the court of general sessions of _______ County. It is, therefore, required of you by Section 17-25-370 of the Code of Laws of South Carolina to execute the judgment and sentence of death imposed on said defendant or defendants (if more than one) on the fourth Friday after the service upon you or receipt of this notice.'
When the appeal has been dismissed or abandoned the notice shall must be substantially the same as when the sentence has been affirmed except that the first sentence thereof of the notice shall read as follows: 'This is to notify you that the appeal from the sentence of death imposed in the case of State vs. _______ has been dismissed (or abandoned) and the notice has been sent down to the clerk of the court of general sessions of _______ County.'"
SECTION 78. Section 17-25-400 of the 1976 Code is amended to read:
"Section 17-25-400. The Commissioner director of the prison system or his duly appointed officer shall immediately serve immediately one of the copies of the notice upon the defendant personally."
SECTION 79. Section 20-7-640(D) of the 1976 Code is amended to read:
"(D) The County Department of Social Services in each county is designated as the Child Protective Service Agency, whose duties are set forth in Section 20-7-650. The county in which the child resides shall be the legal place of venue; provided, that in conjunction with the powers enumerated in this section, each County Board of Social Services shall appoint an advisory board to be composed of resident professionals in the county in which the child resides in the fields of medicine, including nurses, education, health, social workers, members of the clergy and law enforcement officials, if available for the purpose of determining the course of protective action to be taken by the County Department of Social Services. These recommendations are to be deemed advisory only. These appointments to the advisory board shall be made in a nondiscriminatory manner."
SECTION 80. Section 20-7-690(C)(4) of the 1976 Code is amended to read:
"(4) any person engaged in a bona fide research purpose, with written permission of and with any limitations imposed by the Commissioner Director of the State Department of Social Services;"
SECTION 81. Section 20-7-2020 of the 1976 Code is amended to read:
"Section 20-7-2020. The officers and agencies of this State and its subdivisions having authority to place children are empowered to enter into agreements with appropriate officers or agencies of or in other party states pursuant to item (b) of subsection 5 of the Interstate Compact on the Placement of Children. Any agreement which contains a financial commitment or imposes a financial obligation of this State or subdivision or agency of it is not binding unless it has the approval in writing of the State Treasurer in the case of the State and of the Commissioner Director of the Department of Social Services in the case of a subdivision of the State, as their respective functions and duties may appear and be appropriate pursuant to this subarticle."
SECTION 82. The first paragraph of Section 20-7-2340 of the 1976 Code is amended to read:
"The department shall establish fees for certain adoption and related services. The fees must be charged on a scale related to income as established by the state board department, but the inability to pay a fee does not preclude the providing of any service."
SECTION 83. Section 20-7-2379 of the 1976 Code, as last amended by Section 11, Part II, Act 497 of 1994, is further amended to read:
"Section 20-7-2379. (A) There is created, as part of the Office of the Governor, the Division for Review of the Foster Care of Children. The division must be supported by a board consisting of seven members, all of whom must be past or present members of local review boards. There must be one member from each congressional district and one member from the State at large, all appointed by the Governor with the advice and consent of the Senate. Terms of office for the members of the board are for four years and until their successors are appointed and qualify. Of the initial appointments, the Governor shall designate two members to serve for one year, two for a term of two years, two for a term of three years, and one for a term of four years. Thereafter After the initial appointments, appointments must be made by the Governor in the manner as prescribed above in this section for terms of four years to expire on June thirtieth of the appropriate year. The board shall elect from its members a chairman who shall serve for two years. Four members of the board constitute a quorum for the transaction of business. Members of the board shall receive per diem, mileage, and subsistence as provided by law for members of boards, commissions, and committees while engaged in the work of the board.
(B) The board shall meet at least quarterly and more frequently upon the call of the division director to review and coordinate the activities of the local review boards and make recommendations to the General Assembly with regard to foster care policies, procedures, and deficiencies of public and private agencies which arrange for foster care of children as determined by the review of cases provided for in items (A) and (B) of Section 20-7-2376(A) and (B). These recommendations must be included in an annual report, filed with the General Assembly, of the activities of the state office and local review boards. The board, upon recommendation of the division director, shall promulgate regulations to carry out the provisions of this subarticle. These regulations shall provide for and must be limited to procedures for:
(1) reviewing reports and other necessary information at state, county, and private agencies and facilities;
(2) scheduling of reviews and notification of interested parties;
(3) conducting local review board and board of directors' meetings;
(4) disseminating local review board recommendations, including reporting to the appropriate Family Court family court judges the status of judicially approved treatment plans; and
(5) developing policies for summary review of children privately placed in privately-owned facilities or group homes.
(C) The Governor may employ a division director to serve at his pleasure who may be paid an annual salary to be determined by the Governor. The director may be removed pursuant to the provisions of Section 1-3-240. The director shall employ staff as is necessary to carry out the provisions of this subarticle, and the staff must be compensated in an amount and in a manner as may be determined by the Governor. The provisions of this subarticle may must not be construed to provide for subpoena authority."
SECTION 84. Section 20-7-2640(C) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(C) The Department of Health and Human Services or the Department of Social Services shall provide coverage and benefits for a child who is in another state and who is covered by an adoption assistance agreement made by the department Department of Social Services for the coverage or benefits, if any, not provided by the residence state. To this end, the adoptive parents acting for the child may submit evidence of payment for services or benefit amounts not payable in the residence state and must be reimbursed for them. However, there is no reimbursement for services or benefit amounts covered under insurance or other third party medical contract or arrangement held by the child or the adoptive parents. The department Department of Social Services shall promulgate regulations implementing this subsection. The additional coverages and benefit amounts provided pursuant to this subsection are for the costs of services for which there is no federal contribution, or which, if federally aided, are not provided by the residence state. The regulations must include, but are not limited to, procedures to be followed in obtaining prior approval for services in those instances where required for the assistance."
SECTION 85. Section 20-7-2880(c) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(c) The decision of the department is final unless appealed by a party to an administrative law judge pursuant to the Administrative Procedures Act."
SECTION 86. Section 20-7-2930 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 20-7-2930. Whenever the health or fire safety agency finds upon inspection that a child day care center or group day care home is not complying with the applicable regulations, the appropriate agency shall notify the department. The department shall then request the operator to correct such deficiencies.
a. Every correction notice shall be in writing and shall include a statement of the deficiencies found, the period within which the deficiencies must be corrected and the provision of the subarticle and regulations relied upon. The period shall be reasonable and, except when the appropriate agency finds an emergency dangerous to the health or safety of children, not less than thirty days from the receipt of such notices.
b. Within two weeks of receipt of such notice, the operator of the facility may file a written request with the department for administrative reconsideration of the notice or any portion thereof.
c. The department shall grant or deny a written request and shall notify the operator of action taken.
d. In the event that the operator of the facility fails to correct deficiencies within the period prescribed, the department may suspend the registration of the facility to be effective thirty days after date of notice. An appeal may be taken to an administrative law judge pursuant to the Administrative Procedures Act."
SECTION 87. Section 20-7-2940 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 20-7-2940. a. When the registration of a facility has been suspended, the operator must be given prompt written notice. The notice must indicate the reasons for the suspension and inform the operator of the right to appeal the decision through administrative channels to the department and according to established appeals procedure for the department.
b. Upon appeal, the decision of the department is final unless appealed by a party to an administrative law judge pursuant to the Administrative Procedures Act."
SECTION 88. Section 20-7-3230(A)(4) of the 1976 Code, as last amended by an Act of 1994 bearing Ratification No. 585, is further amended to read:
"(4) providing juvenile detention services for juveniles charged with having committed a criminal offense who are found, after a detention screening or detention hearing, to require detention or placement outside the home pending an adjudication of delinquency or dispositional hearing. Detention services provided by the department for the benefit of the counties of this State must include secure juvenile detention centers. The size and capacity of the juvenile detention facilities needed shall must be determined by the department after its consideration and review of American Correctional Association standards for the design, construction, and operation of juvenile detention facilities. These recognized national standards must be met or exceeded by the department in determining the size and capacity of the juvenile detention centers and in planning for the construction and operation of the facilities. The department shall determine and announce the anticipated maximum operational capacity of each facility and shall contact each county governmental body in this State for the purpose of determining which counties anticipate utilizing these facilities upon each facility becoming operational. The department shall inform each county governmental body of the existing state and federal laws regarding the confinement of juveniles charged with committing criminal offenses, of each county's ability to develop its own facility or to contract with other counties for the development of a regional facility, and of the availability of the department's facilities. This notice must be provided to each county for the purpose of determining which county governmental bodies desire to enter into an intergovernmental agreement with the department for the detention of juveniles from their particular county who are charged with committing a criminal offense for which pretrial detention is both authorized and appropriate. No later than September 1, 1993, the department shall report to the Budget and Control Board on the strategy of each county to comply with Sections 20-7-600 and 20-7-605. The department must include with its report a plan for the construction and the operation of those facilities which are projected to be necessary for the preadjudicatory detention of juveniles in this State. No later than September first of each subsequent year, the department shall report to the board on the status of all preadjudicatory juvenile detention facilities known to be operational or planned, regardless of ownership or management. The board then will coordinate with all responsible and affected agencies and entities to ensure that adequate funding is identified to prevent the detention or incarceration of juveniles in adult jails anywhere within the State of South Carolina. Upon completion of each facility and upon the determination by the Jail and Prison Inspection Division of the Department of Corrections that each facility is staffed in accordance with relevant standards and can be operated in accordance with these standards, the division shall determine and announce the rated capacity of each facility. A facility operated by the Department of Youth Services Juvenile Justice for the preadjudicatory detention of juveniles must be maintained and continued in operation for that purpose until approved for conversion or closure by the Budget and Control Board. However, a county which decides to maintain its own approved facilities or which has entered into a regional intergovernmental agreement, which has provided secure facilities for preadjudicatory juveniles, and which meets the standards set forth above, may continue to operate these facilities. County and regionally operated facilities are subject to inspection by the Jail and Prison Inspection Division of the Department of Corrections for compliance with the standards set forth above and those created pursuant to Section 24-9-20. The division has the same enforcement authority over county and regionally operated secure juvenile detention facilities as that which is provided in Section 24-9-30. A juvenile ordered detained in a facility must be screened within twenty-four hours by a social worker or, if considered appropriate, by a psychologist, in order to determine whether the juvenile is emotionally disturbed, mentally ill, or otherwise in need of services. The services must be provided immediately. In Department of Youth Services Juvenile Justice operated facilities, the department shall determine an amount of per diem for each child detained in a center, which must be paid by the committing county. The per diem paid by the county must be based on the average operating cost among all preadjudicatory state facilities. The Department of Youth Services Juvenile Justice must assume one-third of the per diem cost and the committing county must assume two-thirds of the cost. Per diem funds received by the department must be placed in a separate account by the department for operation of all preadjudicatory state facilities. Transportation of the juvenile to and from a facility is the responsibility of the local law enforcement agency which takes the juvenile into custody. Transportation of juveniles between department facilities, if necessary, is the responsibility of the department."
SECTION 89. Section 20-7-5420(A) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(A) The State Council on Maternal, Infant, and Child Health shall consist of the following members:
(1) the Director Commissioner of the South Carolina Department of Health and Environmental Control; the State Superintendent of Education or his designee; the State Director of Social Services; the Director of the South Carolina Department of Alcohol and Other Drug Abuse Services; the State Director of Mental Health; the State Director of the Department of Disabilities and Special Needs; the Director of the Department of Health and Human Services; and the Commissioner of the South Carolina Commission for the Blind; and the Chairman of the Statewide Health Coordinating Council; and
(2) a member of the Health Care Planning and Oversight Committee, to be appointed by the chairman; and a member of the Joint Legislative Committee on Children and Families, to be appointed by the chairman.
The Governor shall appoint one representative of each of the following organizations as a member of the council: South Carolina Medical Association; South Carolina Chapter of the American Academy of Pediatrics; South Carolina Chapter of the American College of Obstetrics and Gynecology; South Carolina Chapter of the Academy of Family Practice; South Carolina Hospital Association; Medical University of South Carolina; University of South Carolina School of Medicine; Clemson University Extension Service; South Carolina Congress of Parents and Teachers; Developmental Disabilities Council; South Carolina March of Dimes; South Carolina Nurses Association; and South Carolina Perinatal Association.
The Governor shall appoint one member from each of the six congressional districts of the State who represents business, civic, community, and religious groups.
The Governor may appoint other ex officio members to the council as are needed to provide information to assist in the work of the council."
SECTION 90. Section 20-7-5910(A) of the 1976 Code, as last amended by Act 502 of 1994, is further amended to read:
"(A) There is created a multi-disciplinary State Child Fatality Advisory Committee composed of:
(1) the Commissioner Director of the South Carolina Department of Social Services;
(2) the Commissioner of the South Carolina Department of Health and Environmental Control;
(3) the State Superintendent of Education;
(4) the Executive Director of the South Carolina Criminal Justice Academy Department of Public Safety;
(5) the Chief of the State Law Enforcement Division;
(6) the Commissioner Director of the South Carolina Commission on Department of Alcohol and Other Drug Abuse Services;
(7) the Commissioner Director of the State Department of Mental Health;
(8) the Commissioner Director of the State Department of Mental Retardation Disabilities and Special Needs;
(9) the Commissioner Director of the Department of Youth Services Juvenile Justice;
(10) an attorney with experience in prosecuting crimes against children;
(11) a county coroner or medical examiner;
(12) a pediatrician with experience in diagnosing and treating child abuse and neglect, appointed from recommendations submitted by the State Chapter of the American Academy of Pediatrics; and
(13) a solicitor.;
(14) a forensic pathologist; and
(15) two members of the public at large, one of which must represent a private nonprofit organization that advocates children services."
SECTION 91. Section 23-4-20 of the 1976 Code is amended to read:
"Section 23-4-20. As used in this chapter:
(A) 'Committee' means the Governor's Committee on Criminal Justice, Crime and Delinquency.
(B) 'Advisory Council' means the Juvenile Justice Advisory Council.
(C) 'J.P.C.' means the Judicial Planning Committee.
(D) 'Office' means the Division of Public Safety Programs, Office of the Governor Department of Public Safety, unless the context indicates otherwise.
(E) 'Criminal justice system and agencies' shall encompass all state, local, and private nonprofit agencies and organizations involved in law enforcement including line police agencies, adult and juvenile corrections, adult and juvenile courts, prosecution and defense, as well as private eleemosynary organizations of professional or citizen membership involved in the system including organizations directly related to crime and delinquency prevention."
SECTION 92. Section 23-4-110 of the 1976 Code, as last amended by Act 248 of 1991, is further amended to read:
"Section 23-4-110. There is created the Governor's Committee on Criminal Justice, Crime and Delinquency. The committee must be composed of persons named by the Governor from the State at large who are representative of agencies and organizations comprising the state's criminal justice system as defined by this chapter. In addition to the gubernatorially-appointed members, the following criminal justice agency heads officials are ex officio voting members:
(A) Commissioner Director, South Carolina Department of Corrections;
(B) Executive Director, South Carolina Department of Parole and Community Corrections Probation, Parole and Pardon Services;
(C) Chief, State Law Enforcement Division;
(D) State Attorney General;
(E) Commander, State Highway Patrol Director, Department of Public Safety;
(F) Commissioner Director, South Carolina Department of Youth Services Juvenile Justice;
(G) Director, South Carolina Office of Court Administration;
(H) Chief Justice, South Carolina Supreme Court;
(I) Director, South Carolina Commission on Department of Alcohol and Other Drug Abuse Services;
(J) Executive Director, South Carolina Criminal Justice Academy;
(K)(J) Chairman, Governor's Juvenile Justice Advisory Council.
The Governor shall appoint the at-large members who shall serve at his pleasure. The number of appointed at-large voting members on the committee shall may not exceed twenty-eight. The Governor shall appoint the chairman of the committee. The Director of the Division of Public Safety Programs Department of Public Safety shall designate a department employee to serve as the executive secretary of the committee. The executive secretary of the committee but may not vote. Support staff for the committee must be provided by the Division of Public Safety Programs Department of Public Safety."
SECTION 93. Section 23-4-520(B) of the 1976 Code is amended to read:
"(B) To analyze South Carolina's activities in the administration of criminal justice and the nature of the problems confronting it and to make recommendations and to develop comprehensive plans of action for the improvement of criminal justice for crime and delinquency control and related matters for consideration and implementation by the appropriate agencies of state and local government. In developing such these plans, the office shall draw upon the planning capabilities of other agencies such as the Judicial Department, the Department of Corrections, the Department of Youth Services Juvenile Justice, the Office of the Attorney General, and the State Law Enforcement Division;"
SECTION 94. Section 23-6-10 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 23-6-10. For the purposes of this title, the following words, phrases, and terms are defined as follows:
(1) 'Department' means the Department of Public Safety.
(2) 'Director' means the chief administrative officer of the Department of Public Safety.
(3) 'Deputy director' means the administrative head of a division of the department."
SECTION 95A. Section 23-6-40(B) and (C) of the 1976 Code, as last amended by Act 181 of 1993, are further amended to read:
"(B) The director must administer the affairs of the department and must represent the department in its dealings with other state agencies, local governments, special purpose districts, and the federal government. The director must appoint a deputy director for each division and employ such other personnel for each division or office and prescribe their duties, powers, and functions as he considers necessary and as may be authorized by statute and for which funds have been authorized in the annual general appropriation act.
(C) The deputy director for each division shall serve at the pleasure of the director. Each deputy director may receive compensation as established under the provisions of Section 8-11-160 and for which funds have been authorized in the annual general appropriation act."
SECTION 95B. Chapter 6, Title 23 of the 1976 Code is amended by adding:
Section 23-6-350. The Governor may appoint and commission as special Department of Public Safety constables such persons as shall be recommended to him in writing by the director of the department. Such special department constables shall serve without compensation from the State or any of its political subdivisions. The director may only recommend former employees of the department, including any of its divisions or offices prior to July 1, 1993.
Section 23-6-360. The appointment of a special department constable under this chapter shall be for a term of four years. Any such constable may be summarily removed by the director upon his own initiative or at the request of the Governor or his duly authorized representative.
Section 23-6-370. All special department constables appointed under this chapter shall be required to take the oath prescribed by Section 26, Article III of the Constitution of 1895. Every such special department constable shall give and file in the office of the Secretary of State a surety bond in the penal sum of two thousand dollars conditioned upon the payment of any judgment recovered against him in any court of competent jurisdiction upon a claim or cause of action arising out of breach or abuse of official duty or power or other unlawful act committed under color of office.
Section 23-6-380. Each such special department constable shall possess all of the rights and powers prescribed by law for constables. In addition to any other duties, the director may request the assistance of department constables as circumstances warrant. No special department constable shall be appointed until he has successfully completed a course of training as prescribed by the director.
Section 23-6-390. The department shall not be responsible for the malfeasance, nonfeasance or misfeasance of any such special department constable nor for any of his unlawful acts performed under color of office, but such constable and his sureties shall be answerable therefor on his official bond."
SECTION 96. Section 23-9-10 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 23-9-10. The Office of the State Fire Marshal shall hereafter must be administered as a division of the Department of Labor, Licensing & Regulation. A director of the Department of Labor, Licensing, and Regulation must be appointed by the governor pursuant to the provisions of Section 40-83-15 40-73-15. The division shall consist consists of such agents and employees, pursuant to Section 40-73-15, as the director of the department may deem necessarily considers proper for the enforcement of state and local fire safety codes and standards. The director of the department shall employ a State Fire Marshal, pursuant to Section 40-73-15, to supervise enforcement of the laws and personnel necessary to carry out the duties of this chapter. The State Fire Marshal shall must have a Master's Degree from an accredited institution of higher learning and at least four years experience in fire prevention and control or a Bachelor's Degree and eight years experience in fire prevention and control."
SECTION 97. Section 23-11-110(C) of the 1976 Code, as last amended by Act 19 of 1993, is further amended to read:
"(C) After December 31, 1988, every newly-elected sheriff in his first term is required to complete a training session to be determined by the South Carolina Criminal Justice Law Enforcement Training Council, to be conducted by the South Carolina Criminal Justice Academy or an academy certified by the South Carolina Law Enforcement Training Council or as may be selected by the South Carolina Sheriffs' Association. This training must be completed during the first calendar year of the first term of the newly-elected sheriff's term of office. A newly-elected sheriff who is unable to attend this training course when offered because of emergency or extenuating circumstances, within one year from the date the disability or cause terminates, shall complete the standard basic course of instruction required of newly-elected sheriffs. A newly-elected sheriff who does not fulfill the obligations of this subsection is subject to suspension by the Governor until the sheriff completes the course of instruction."
SECTION 98. Chapter 25 of Title 23, as last amended by Act 181 of 1993, is further amended to read:
Section 23-25-10. There is hereby established the South Carolina Law-Enforcement Law Enforcement Officers Hall of Fame as a memorial to law-enforcement law enforcement officers killed in the line of duty and in recognition of the selfless dedication of all law-enforcement law enforcement officers in the day-to-day performance of their duties. The Hall of Fame shall be located on the grounds of the South Carolina Law-Enforcement Academy at Columbia.
Section 23-25-20. (A) The South Carolina Hall of Fame shall hereafter be administered as a division of the Department of Public Safety.
(B) To plan, enact, and administer the Hall of Fame, there is hereby There is created the a Law Enforcement Officers Hall of Fame Advisory Committee. The committee shall consist of the following ex officio members:
(1) the Director of the Department of Public Safety, who shall serve as chairman;
(1)(2) the Chief of the South Carolina State Law Enforcement Division, who shall serve as chairman;
(2) the commanding officer of the Highway Patrol and the commanding officer of the State Police;
(3) the Director of the Department of Corrections;
(4) the Secretary of the South Carolina Sheriffs' Association;
(5) the Executive Director of the South Carolina Law Enforcement Officers Association;
(6) the President of the South Carolina Police Chiefs' Association, or his designee; and
(7) a representative of the Natural Resources Enforcement Division of Natural Resources Police, to be appointed by the Director of the Department of Natural Resources; and.
(8) the Director of the Department of Public Safety.
(C) All members Members of the advisory committee may designate persons to represent them at meetings they are unable to attend.
Section 23-25-30. It shall be the responsibility of the advisory Committee committee created by Section 23-25-20 to plan, erect and maintain to assist the department in planning, erecting, and maintaining the Hall of Fame in the manner it shall determine appropriate but generally in accordance with the following guidelines:
(a) All officers from all agencies in the law-enforcement system shall be eligible for entry into the Hall of Fame.
(b) The names of all officers killed in the line of duty whose deaths under those circumstances can be established by creditable records shall be entered into the Hall.
(c) Any officer who performs an act or series of acts over and above the regular call of duty may become eligible for the Hall when so elected by the advisory Committee committee whether or not such act or acts resulted in death or injury to the officer concerned.
(d) Any officer whose continued record of excellence over a period of years is manifestly outstanding may be elected to the Hall by the advisory Committee committee.
(e) Suitable plaques inscribed with the names of those selected for the Hall shall be erected. Fame shall include museum-type displays of objects and equipment of unusual interest used by law-enforcement officers or otherwise related to law enforcement.
(f) Within the limits of funds provided, the Hall of Fame shall include museum-type displays of objects and equipment of unusual interest used by law enforcement officers or otherwise related to law enforcement.
(g) Provide tours and related safety and educational programs to the public.
Section 23-25-40. The advisory committee shall establish procedures and regulations for the nomination of members of the Hall of Fame. All selections of persons for Hall of Fame membership shall be made by a majority vote of the total membership of the advisory committee.
Meetings of the advisory committee shall be held at least quarterly, and more frequently at the call of the chairman. The advisory committee shall establish its own rules of procedure. Members shall not receive compensation for their services with the advisory committee but shall be allowed the usual mileage, per diem and subsistence provided by law for boards, committees and commissions. The committee department is authorized to employ clerical assistance as the director deems considers necessary to perform its functions as prescribed in this chapter from funds made available as provided in Section 23-23-70 23-6-470."
SECTION 99. Section 24-1-10 of the 1976 Code is amended to read:
"Section 24-1-10. Wherever in the Code of Laws of South Carolina, 1976, reference is made to the State Penitentiary or Penitentiary, it shall mean the Department of Corrections or an institution of the Department of Corrections; and wherever reference is made to the Director of the Department of Corrections, it shall mean Commissioner of the Department of Corrections."
SECTION 100. Section 24-13-730 of the 1976 Code is amended to read:
"Section 24-13-730. Any new program established under Sections 14-1-210, 14-1-220, 14-1-230, 16-1-60, 16-1-70, 16-3-20, 16-3-26, 16-3-28, 16-23-490, 17-25-45, 17-25-70, 17-25-90, 17-25-140, 17-25-145, 17-25-150, 17-25-160, 20-7-1350, 24-3-40, 24-3-1120, 24-3-1130, 24-3-1140, 24-3-1160, 14-3-1170, 24-3-1190, 24-3-2020, 24-3-2030, 24-3-2060, 24-13-640, 24-13-650, 24-13-710, 24-13-910, 24-13-915, 24-13-920, 24-13-930, 24-13-940, 24-13-950, 24-21-13, 24-21-430, 24-21-475, 24-21-480, 24-21-485, 24-21-610, 24-21-640, 24-21-645, 24-21-650, 24-22-30, 24-22-40, 24-22-50, 24-22-70, 24-22-90, 24-22-100, 24-22-110, 24-22-120, 24-22-130, 24-22-140, 24-22-150, 24-22-160, 24-22-170, 24-23-115, and 42-1-505 or any change in any existing program may only be implemented only to the extent that appropriations for such the programs have been authorized by the General Assembly."
SECTION 101. Section 24-21-300 of the 1976 Code is amended to read:
"Section 24-21-300. At any time during a period of supervision, a probation and parole agent, instead of issuing a warrant, may issue a written citation and affidavit setting forth that the probationer, parolee, or any a person released or furloughed under the Prison Overcrowding Powers Act or the Offender Management System Act in the agent's judgment violates the conditions of his release or suspended sentence. The citation must be directed to the probationer, parolee, or the person released or furloughed, must require him to appear at a specified time, date, and court or other place, and must state the charges. The citation must set forth the probationer's, parolee's, or released or furloughed person's rights and contain a statement that a hearing will be held in his absence if he fails to appear and that he may be imprisoned as a result of his absence. The citation may be served by a law enforcement officer upon the request of a probation and parole agent. The issuance of a citation or warrant during the period of supervision gives jurisdiction to the court and the board department at any hearing on the violation."
SECTION 102. Section 24-22-30 of the 1976 Code, as added by Act 461 of 1992, is amended to read:
"Section 24-22-30. To be eligible to participate in the offender management system, an offender shall:
(a) must be classified as a qualified prisoner as defined herein;
(b) shall maintain a clear disciplinary record during the offender's incarceration or for at least six months prior to before consideration for placement in the system;
(c) shall demonstrate during incarceration a general desire to become a law abiding member of society;
(d) shall satisfy any reasonable requirements imposed on the offender by the Department of Corrections;
(e) must be willing to participate in the criminal offender management system and all of its programs and rehabilitative services and agree to conditions imposed by the departments;
(f) shall possess an acceptable risk score. The risk score shall must be affected by, but not be limited to, the following factors:
(1) nature and seriousness of the current offense;
(2) nature and seriousness of prior offenses;
(3) institutional record;
(4) performance under prior criminal justice supervision; and
(g) shall satisfy any other criteria established by the South Carolina Department of Corrections and the State Board Department of Probation, Parole and Pardon Services."
SECTION 103. Section 24-22-150 of the 1976 Code, as added by Act 461 of 1992, is amended to read:
"Section 24-22-150. The offender management system must not be initiated and offenders shall must not be enrolled in the offender management system unless appropriately funded out of the general funds of the State.
During periods when the offender management system is in operation and either the South Carolina Department of Corrections or the South Carolina Department of Probation, Parole and Pardon Services determines that its funding for the system has been exhausted, the commissioner director for the department having made the determination that funds are exhausted shall notify the commissioner director of the other department, the Governor, the Speaker of the House of Representatives, and the President Pro Tempore of the Senate. The offender management system shall then shall terminate until appropriate funding has been provided from the general funds of the State."
SECTION 104. Section 24-23-30 of the 1976 Code is amended to read:
"Section 24-23-30. The community corrections plan shall must include, but is not be limited to, describing the following community-based program needs:
(a) an intensive supervision program for probationers and parolees who require more than average supervision;
(b) a supervised inmate furlough program whereby inmates under the jurisdiction of the Department of Corrections can be administratively transferred to the supervision of state probation and parole agents for the purposes of pre-release preparation, securing employment and living arrangements, or obtaining rehabilitation services;
(c) a contract rehabilitation services program whereby private and public agencies, such as the Department of Vocational Rehabilitation and Mental Health and the various county commissions on alcohol and drug abuse, provide diagnostic and rehabilitative services to offenders who are under the Board's Department of Probation, Parole and Pardon Services' jurisdiction;
(d) community-based residential programs whereby public and private agencies as well as the Board Department of Probation, Parole and Pardon Services establish and operate halfway houses for those offenders who cannot perform satisfactorily on probation or parole;
(e) expanded use of presentence investigations and their role and potential for increasing the use of community-based programs, restitution and victim assistance; and
(f) identification of programs for youthful and first offenders."
SECTION 105. Sections 24-26-10(B)(3) and (4) of the 1976 Code are amended to read:
"(3) the Chairman of the State Board of Corrections, or his designee who must be a member of that board or who must be the Commissioner Director of the Department of Corrections or his designee;
(4) the Chairman of the Board Director of the Department of Probation, Parole and Pardon Services, or his designee who must be a member of that board or who must be the Commissioner or Executive Director of the Department of Probation, Parole and Pardon Services."
SECTION 106. Section 25-19-20 of the 1976 Code is amended to read:
"Section 25-19-20. The commission is attached to the Department Division of Veterans' Affairs in the Office of the Governor for logistical and staff support only and may be located in Columbia in space provided by the State Budget and Control Board."
SECTION 107. Section 31-13-30 of the 1976 Code, as redesignated by Act 410 of 1992, is amended to read:
"Section 31-13-30. The Governor shall appoint, with the advice and consent of the Senate, seven persons to be commissioners of the South Carolina State Housing Finance and Development Authority. The seven persons so appointed shall must have experience in the fields of mortgage finance, banking, real estate, and home building. The Governor shall appoint a chairman from among the seven commissioners.
The commissioners must be appointed for terms of four years, except that all vacancies must be filled for the unexpired term. A commissioner shall hold office until his successor has been appointed and qualifies qualified. A certificate of the appointment or reappointment of any commissioner must be filed in the office of the Secretary of State and in the office of the authority, and the certificate is conclusive evidence of the due and proper appointment of the commissioner. The Governor or his designee and the State Commissioner of the Department of Health and Environmental Control or his designee from his administrative staff shall serve ex officio as commissioners of the authority with the same powers as the other commissioners."
SECTION 108. Section 31-17-330 of the 1976 Code is amended to read:
"Section 31-17-330. No such license shall be is required with respect to mobile homes held by dealers for resale, nor shall does this article be applicable apply to mobile homes licensed by the South Carolina Highways and Public Transportation Department of Revenue. Licenses required by this article shall be are in lieu of any a building or construction permit now required by local act or ordinance."
SECTION 109. Section 33-14-210(c) of the 1976 Code is amended to read:
"(c) If the Secretary of State is notified by the Tax Commission Department of Revenue that the corporation has failed to file a required tax return within sixty days of the notice required by Section 12-7-1675, the Secretary of State shall dissolve the corporation administratively by signing a certificate of dissolution that recites the grounds for dissolution and its effective date. The Secretary of State shall file the original of the certificate and send a copy to the corporation by registered or certified mail addressed to its registered agent at its registered office or to the office of the secretary of the corporation at its principal office."
SECTION 110. Section 33-39-250(10) of the 1976 Code is amended to read:
"(10) To cooperate with and avail itself of the facilities of the Division of State Development of the Department of Commerce Board and any similar governmental agencies, and to cooperate with and assist and otherwise encourage organizations in the various communities of the county in the promotion, assistance, and development of the business prosperity and economic welfare of such the communities or of the county; and"
SECTION 111. Section 38-3-110 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"The director commissioner or his designee have has the following duties:
(1) supervise and regulate the rates and service of every insurer in this State and fix just and reasonable standards, classifications, regulations, practices, and measurements of service to be observed and followed by every insurer doing business in this State. Nothing contained in this title authorizes or requires a review by the department or the director commissioner of any order of the director's commissioner's designee or the deputy director commissioner under the Administrative Procedures Act. This item does not grant any additional authority to the director commissioner or his designee with regard to insurance rates other than the rate-making authority specifically granted to the director commissioner or his designee, or the Department of Insurance for certain kinds of insurance in other provisions of this title;
(2) see that all laws of this State governing insurers or relating to the business of insurance are faithfully executed and make regulations to carry out this title and all other insurance laws of this State, the enforcement or administration of which is not otherwise specifically provided for. Any reference in this title to regulations promulgated by the department shall mean regulations promulgated by the commissioner;
(3) furnish to domestic insurers required by law to report to the department the necessary blank forms for the reports required, which forms may be changed as necessary to secure full information as to the standing, condition, and any other information desired by the director commissioner or his designee;
(4) report to the Attorney General or other appropriate law enforcement officials criminal violations of the laws relative to the business of insurance or the provisions of this title which he considers necessary to report;
(5) institute civil actions, either through his office or through the Attorney General, relative to the business of insurance or the provisions of this title which he considers necessary to institute."
SECTION 112. Section 38-27-520(d) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(d) When the director commissioner or his designee takes action in any or all of the ways set out in subsection (b), the party aggrieved may appeal from the action to the Administrative Law Judge Division circuit court as provided by law."
SECTION 113. Section 38-43-106(C) of the 1976 Code, as amended by Section 661 of Act 181 of 1993 to take effect on July 1, 1995, and as last amended by Act 374 of 1994, is further amended to read:
"(C) The director Chief Insurance Commissioner or his designee shall administer these continuing education requirements and shall approve courses of instruction which qualify for these purposes. In administering this program, the department commissioner, in its his discretion, may promulgate regulations whereby agents provide to a continuing education administrator established within the Department of Insurance proof of compliance with continuing education requirements as a condition of license renewal or, in the alternative, contract with an outside service provider to provide record-keeping services as the continuing education administrator. The costs of the continuing education administrator must be paid from the continuing insurance education fees paid by agents in the manner provided by this section, except that course approval responsibilities may not be designated to the continuing education administrator. The continuing education administrator shall compile and maintain, in conjunction with insurers and agents, records reflecting the continuing insurance education status of all licensed or qualified agents subject to the requirements of this section. The continuing education administrator shall furnish to the insurer, within ninety days of the agent's renewal date, as specified by regulation, a report of the continuing insurance education status of all of its agents. All licensed agents shall provide evidence of their continuing insurance education status to the continuing education administrator at least one hundred twenty days before the annual renewal date. Any continuing insurance education approved courses taken subsequent to one hundred twenty days before the renewal date must be applied to the following biennial continuing insurance education required period. The department commissioner shall promulgate regulations prescribing the overall parameters of continuing education requirements, and these regulations shall expressly authorize the director commissioner or his designee to recognize product-specific training offered by insurers, subject to those parameters and guidelines as are promulgated by the regulations. The director of the department may commissioner shall appoint an advisory committee to make recommendations with respect to courses offered for approval, but the director commissioner or his designee shall retain authority with respect to course approvals, subject to those regulations as are promulgated by the department. When the advisory committee is approved, it shall meet regularly as needed, but no less than semiannually, to review new course applications. Also, the advisory committee shall review modifications of courses previously approved and review previously promulgated regulations to make recommendations regarding any need for modifications, deletions, or new regulations. The advisory committee must be comprised of two representatives from each of the following associations, groups, or categories:
(1) the Carolina's Association of Professional Insurance Agents;
(2) the Independent Insurance Agents of South Carolina;
(3) the South Carolina Association of Automobile Insurance Agents;
(4) the South Carolina Association of Life Underwriters;
(5) the Association of South Carolina Life Insurance Companies;
(6) the Direct Writers Insurance Companies;
(7) the Association of South Carolina Property and Casualty Insurance Companies; and
(8) insurers that are not members of national insurance trade associations.
The advisory committee must also be comprised of one representative from the South Carolina Association of Health Underwriters.
Advisory committee members must be appointed by the commissioner from recommendations made by the respective associations, groups, or categories to the commissioner."
SECTION 114. Section 38-73-1380 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 38-73-1380. After June 30, 1989, no member or subscriber of a rating organization may utilize a rate or premium charge for any private passenger automobile insurance coverage unless and until the final rate or premium charge has been filed with the Division department and approved by the director commissioner or his designee. After the effective date of this section, the final rate or premium charge is the pure loss component filed and approved by a rating organization on behalf of its members or subscribers added to the expense component of the rate or premium charge, filed with the department and approved by the director commissioner or his designee, by each member or subscriber of a rating organization independently.
No expense component filed by a member or subscriber of a rating organization may be approved by the director commissioner or his designee unless it has been the subject of a public hearing, if that member's or subscriber's total written private passenger automobile insurance premium during the previous calendar year equaled or exceeded one percent of the total written private passenger automobile insurance premium in this State during the previous calendar year. For other lines of insurance the requirements of this section are not activated unless the members' member's or subscribers' subscriber's total written premium during the previous calendar year equaled or exceeded three percent of the total written insurance premium for that specific line of insurance in this State during the previous calendar year."
SECTION 115. The last paragraph of Section 38-77-580 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"The director commissioner or his designee, through the department, may propose to the board any amendment to or modification of the plan that the director commissioner or his designee considers to be necessary to render the plan reasonable or consistent with the purposes of this chapter, specifying in writing the reasons for any proposed amendment or modification. In the event that If the board fails to adopt his proposed amendment or modification, the director commissioner or his designee may, after notice and public hearing addressed to the reasons for the proposed amendment or modification, may promulgate the amendment or modification considered necessary to render the plan reasonable or consistent with the purposes of this chapter."
SECTION 116. Section 38-79-270 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 38-79-270. Any applicant for insurance through the association, person insured pursuant to this article or his representative, or any insurer adversely affected or claiming to be adversely affected by any ruling, action, or decision by or on behalf of the association may appeal to the department commissioner within thirty days after notice of the ruling, action, or decision."
SECTION 117. Section 38-81-270 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 38-81-270. The director commissioner or his designee shall obtain complete statistical data in respect to legal professional liability losses and reparation costs as well as all other costs or expenses which underlie or are related to legal professional liability insurance. The department commissioner shall promulgate any statistical plan he considers necessary for the purpose of gathering data referable to loss and loss adjustment expense experience and other expense experience. When the statistical plan is promulgated, all members of the association shall adopt and use it. The director commissioner or his designee also shall obtain statistical data in respect to the costs of compensating victims of legal professional liability. The director commissioner or his designee may require from any a person obtaining insurance through the association loss, claim, or expense data. This information or data is confidential, and the attorney-client privilege must be preserved."
SECTION 118. Chapter 23, Title 39 of the 1976 Code is amended to read:
Section 39-23-10. This chapter may be cited as the South Carolina Drug Act.
Section 39-23-20. For the purposes of this chapter:
(a)(1) The 'Commissioner of the Department of Health and Environmental Control' means the Commissioner of the Department of Health and Environmental Control or his designated agent.
(b)(1)(2)(a) The term 'Drug' means:
(A) (i) articles recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any a supplement to any of them; and
(B) (ii) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and
(C) (iii) articles, (other than food), intended to affect the structure or any function of the body of man or other animals; and
(D) (iv) articles intended for use as a component of any articles an article specified in clause (A) subsubitem (i), (B) ii, or (C); but (iii).
(b) 'Drug' does not include devices or their components, parts, or accessories.
(2)(c) The term 'Counterfeit drug' means a drug which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, or device, or any likeness thereof of it, of a drug manufacturer, processor, packer, or distributor other than the person or persons who in fact manufactured, processed, packed, or distributed such the drug and which thereby falsely purports or is represented to be the product of, or to have been packed or distributed by, such the other drug manufacturer, processor, packer, or distributor.
(c)(3) The term 'Device' means instruments, apparatus, and contrivances, including their components, parts, and accessories, intended:
(1)(a) for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; or
(2)(b) to affect the structure or any function of the body of man or other animals.
(d)(4) The term 'Official compendium' means the official United States Pharmacopoeia, Official Homeopathic Pharmacopoeia of the United States, Official National Formulary, or any a supplement to any of them.
(e)(5) The term 'Label' means a display of written, printed, or graphic matter upon the immediate container of any an article; and. A requirement made by or under authority of this chapter that any a word, a statement, or other information appear on the label shall is not be considered to be complied with unless such the word, statement, or other information also appears on the outside container or wrapper, if any there be one, of the retail package of such the article, or is easily legible through the outside container or wrapper.
(f)(6) The term 'Labeling' means all labels and other written, printed, or graphic matter (1) upon any an article or any of its containers or wrappers, or (2) accompanying such the article. If an article is alleged to be misbranded because the labeling is misleading, or if an advertisement is alleged to be false because it is misleading, then in determining whether the labeling or advertisement is misleading, there shall must be taken into account, (among other things), not only representations made or suggested by statement, word, design, device, sound, or in any a combination thereof of them, but also the extent to which the labeling or advertisement fails to reveal facts material in the light of such these representations or material with respect to consequences which may result from the use of the article to which the labeling or advertisement relates under the conditions of use prescribed in the labeling or advertisement thereof of them or under such customary or usual conditions of use as are customary or usual.
(g)(7) The term 'New drug' means:
(1)(a) Any a drug, (except a new animal drug or an animal feed bearing or containing a new animal drug), the composition of which is such that such the drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof, except that such of the drug. However, a drug not so recognized shall is not be deemed to be a 'new drug' if at any time prior to before July 17, 1972, it was subject to the Federal Food and Drug Act of June 30, 1906, as amended, and if at such the time its labeling contained the same representations concerning the conditions of its use; or
(2)(b) Any a drug, except a new animal drug or an animal feed bearing or containing a new animal drug, the composition of which is such that such the drug, as a result of investigations to determine its safety and effectiveness for use under such the conditions, has become so recognized, but which has not, otherwise than in such these investigations, been used to a material extent or for a material time under such the conditions.
(h)(8) The term 'Color' includes black, white, and intermediate grays.
Section 39-23-30. A drug or device shall be is deemed to be adulterated if it:
(a)(1)(a) If it consists in whole or in part of any filthy, putrid, or decomposed substance; or
(2)(A)(b)(i) if it has been prepared, packed, or held under insanitary conditions whereby where it may have been contaminated with filth, or whereby where it may have been rendered injurious to health; or
(B)(ii) if it is a drug and the methods used in, or the facilities or controls used for, its manufacture, processing, packing, or holding do not conform to or are not operated or administered in conformity with current good manufacturing practice to assure that such the drug meets the requirements of the Federal Food, Drug, and Cosmetic Act, as amended, as to safety and has the identity and strength, and meets the quality and purity characteristics, which it purports or is represented to possess; or
(3)(c) if it is a drug and its container is composed, in whole or in part, of any a poisonous or deleterious substance which may render the contents injurious to health; or
(4) if
(A)(d)(i) it is a drug which bears or contains, for purposes of coloring only, a color additive which is unsafe within the meaning of Section 706(a) of the Federal Food, Drug, and Cosmetic Act, as amended,;
(B) (ii) it is a color additive the intended use of which in or on drugs is for purposes of coloring only and is unsafe within the meaning of Section 706(a) of the Federal Food, Drug, and Cosmetic Act, as amended; or
(5)(e) if it is a new animal drug which is unsafe within the meaning of Section 512 of the Federal Food, Drug, and Cosmetic Act, as amended; or
(6)(f) if it is an animal feed bearing or containing a new animal drug, and such the animal feed is unsafe within the meaning of Section 512 of the Federal Food, Drug, and Cosmetic Act, as amended.
(b)(2) If it purports or is represented as a drug the name of which is recognized in an official compendium, and its strength differs from or its quality or purity falls below the standard set forth in such the compendium. Such The determination as to strength, quality, or purity shall must be made in accordance with the tests or methods of assay set forth in such the compendium, except that whenever. However, when tests or methods of assay have not been prescribed in such the compendium, or those prescribed under authority of the federal act, or such the tests or methods of assay as are prescribed are, in the judgment of the Commissioner of the Department of Health and Environmental Control, insufficient for the making of such the determination, the Commissioner commissioner shall bring such that fact to the attention of the appropriate body charged with the revision of such the compendium, and. If such the body fails within a reasonable time to prescribe tests or methods of assay, which, in the judgment of the Commissioner commissioner, are sufficient for purposes of this paragraph, then the Commissioner Department of Health and Environmental Control shall promulgate regulations prescribing appropriate tests or methods of assay in accordance with which such the determination as to strength, quality, or purity shall must be made. No drug defined in an official compendium shall may be deemed to be adulterated under this paragraph because it differs from the standard of strength, quality, or purity therefor set forth in such the compendium, if its difference in strength, quality, or purity from such the standards is plainly stated plainly on its label. Whenever a drug is recognized in both the United States Pharmacopoeia and the Homeopathic Pharmacopoeia of the United States, it shall be is subject to the requirements of the United States Pharmacopoeia unless it is labeled and offered for sale as a homeopathic drug in which case. If it is labeled and offered for sale as a homeopathic drug, it shall be is subject to the provisions of the Homeopathic Pharmacopoeia of the United States and not to those of the United States Pharmacopoeia.
(c)(3) If it is not subject to the provisions of paragraph (b) of this section, item (2) and its strength differs from, or its purity or quality falls below that which it purports or is represented to possess.;
(d)(4) If it is a drug and any a substance has been (1) mixed or packed therewith with the drug so as to reduce its quality of strength or (2) substituted wholly or in part therefor.
Section 39-23-40. A drug or device shall be is deemed to be misbranded:
(a)(1) if its label is false or misleading in any particular.;
(b)(2) if in a package form unless it bears a label containing (1) the name and place of business of the manufacturer, packer, or distributor; and (2) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; provided. However, that reasonable variations shall be are permitted under regulations issued promulgated by the Commissioner Department of Health and Environmental Control or issued under the federal act. Provided, further, that in the case of any For a drug subject to Section 39-23-50(B)(1), the label shall must contain the name and place of business of the manufacturer of the finished dosage form and, if different, the name and place of business of the packer or distributor. For the purpose of this paragraph item, the finished dosage form of a drug is that form of the drug which is, or is intended to be, dispensed or administered to the ultimate user upon prescription or as otherwise dispensed by the pharmacist.;
(c)(3) if any a word, a statement, or other information required by or under the authority of this chapter or the Federal Food, Drug, and Cosmetic Act to appear on the label or labeling is not prominently placed thereon prominently on the label or labeling with such conspicuousness, as compared with other words, statements, designs, or devices, in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.;
(d)(4) if it is for use by man and contains any a quantity of the narcotic or hypnotic substance alpha-eucaine, barbituric acid, beta-eucaine, bromal, cannabis, carbromal, chloral, coca, cocaine, codeine, heroin, marihuana, morphine, opium, paraldehyde, peyote, or sulphonmethane, or any a chemical derivative of such the substance, which derivative, after investigation, has been found to be, and designated as, habit forming, by regulations issued promulgated by the Commissioner Department of Health and Environmental Control under this chapter, or by regulations issued pursuant to Section 502(d) of the federal act, unless its label bears the name and quantity or proportion of such the substance or derivative and in juxtaposition therewith the statement 'Warning--May be habit forming.';
(e)(1)(5)(a) if it is a drug, unless:
(A) (i) its label bears, to the exclusion of any other another nonproprietary name, (except the applicable systematic chemical name or the chemical formula), (i)(A) the established name, (as defined in subparagraph (2)) subitem (b), of the drug, if such there be is, and, (ii) in case (B) if it is fabricated from two or more ingredients, the established name and quantity of each active ingredient, including the quantity, kind, and proportion of any alcohol, and also including whether active or not, the established name and quantity or proportion of any bromides, ether, chloroform, acetanilide, acetophenetidin, amidopyrine, antipyrine, atropine, hyoscine, hyoscyamine, arsenic, digitalis, digitalis glucosides, mercury, ouabain, strophanthin, strychnine, thyroid, or any a derivative or preparation of any such these substances, contained therein; provided, that in them. However, the requirement for stating the quantity of the active ingredients, other than the quantity of those specifically named in this paragraph sub-subitem, shall apply applies only to prescription drugs; and
(B) (ii) for any a prescription drug, the established name of such the drug or ingredient, as the case may be, on such the label, (and on any the labeling on which a name for such the drug or ingredient is used), is printed prominently and in type at least half as large as that used thereon on the label or labeling for any a proprietary name or designation for such the drug or ingredient; and provided, that. However, to the extent that compliance with the requirements of clause (A)(ii) sub-subitem (i)(B) or clause (B) of this subparagraph sub-subitem is impracticable, exemptions shall must be established by regulations promulgated by the Commissioner Department of Health and Environmental Control or under the federal act.
(2)(b) As used in this paragraph (e) item, the term 'established name', with respect to a drug or ingredient thereof of the drug, means:
(A) (i) the applicable official name designated pursuant to Section 508 of the Federal Food, Drug, and Cosmetic Act as amended, or;
(B) (ii) if there is no such official name and such the drug, or such the ingredient, is an article recognized in an official compendium, then the official title thereof in such the compendium,; or
(C) (iii) if neither clause (A) sub-subitem (i) nor clause (B) of this subparagraph sub-subitem (ii) applies, then the common or usual name, if any, of such the drug or of such the ingredient; provided, further, that. Where clause (B) of this paragraph sub-subitem (ii) applies to an article recognized in the United States Pharmacopoeia and in the Homeopathic Pharmacopoeia under different official titles, the official title used in the United States Pharmacopoeia shall apply applies unless it is labeled and offered for sale as a homeopathic drug, in which case. If it is labeled and offered for sale as a homeopathic drug, the official title used in the Homeopathic Pharmacopoeia shall apply. applies;
(f)(6)(a) unless its labeling bears adequate:
(1) (i) adequate directions for use; and
(2) (ii) such adequate warnings against use in those pathological conditions or by children where its use may be dangerous to health, or against unsafe dosage or methods or duration of administration or application, in such a manner and form, as are necessary for the protection of users;
(b) provided, that where any a requirement of clause (1) of this paragraph sub-subitem (i), as applied to any a drug or device, is not necessary for the protection of the public health, the Commissioner Department of Health and Environmental Control shall promulgate regulations exempting such the drug or device from such the requirement; provided, further, that. Articles exempted under regulations issued under Section 502(f) of the federal act shall also be are exempt.;
(g)(7) if it purports to be a drug the name of which is recognized in an official compendium, unless it is packaged and labeled as prescribed therein; provided, that. However, the method of packing may be modified with the consent of the Commissioner of the Department of Health and Environmental Control or if consent is obtained under the federal act. Whenever a drug is recognized in both the United States Pharmacopoeia and the Homeopathic Pharmacopoeia of the United States, it shall be is subject to the requirements of the United States Pharmacopoeia with respect to packaging, and labeling unless it is labeled and offered for sale as a homeopathic drug, in which case. If it is labeled and offered for sale as a homeopathic drug, it shall be is subject to the provisions of the Homeopathic Pharmacopoeia of the United States, and not to those of the United States Pharmacopoeia; provided, further, that, in the event of. If there is inconsistency between the requirements of this paragraph item and those of paragraph (e) item (5) as to the name by which the drug or its ingredients shall be are designated, the requirements of paragraph (e) shall item (5) prevail.;
(h)(8) if it has been found by the Commissioner of the Department of Health and Environmental Control or under the federal act to be a drug liable to deterioration, unless it is packaged in such a form and manner, and its label bears a statement of such the precautions, as the Commissioner Department of Health and Environmental Control or under the federal act shall by regulations require requires as necessary for the protection of the public health. No such regulation shall may be established for any a drug recognized in an official compendium until the Commissioner of the Department of Health and Environmental Control shall have informed informs the appropriate body charged with the revision of such the compendium of the need for such the packaging or labeling requirements and such the body shall have failed fails within a reasonable time to prescribe such the requirements.;
(i)(1)(9)(a) if it is a drug and its container is so made, formed, or filled as to be misleading; or
(2)(b) if it is an imitation of another drug; or
(3)(c) if it is offered for sale under the name of another drug.;
(j)(10) if it is dangerous to health when used in the dosage, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof.;
(k)(11) In the case of any for a prescription drug distributed or offered for sale in any state, unless the manufacturer, packer, or distributor thereof includes in all advertisements and other descriptive printed matter issued or caused to be issued by the manufacturer, packer, or distributor with respect to that drug a true statement of:
(1)(a) the established name as defined in Section 39-23-40(e) item (5), printed prominently and in type at least half as large as that used for any a trade or brand name thereof,;
(2)(b) the formula showing quantitatively each ingredient of such the drug to the extent required for labels under Section 39-23-40(e), and (3) such item (e);
(c) other information in brief summary relating to side effects, contraindications, and effectiveness as shall be required in regulations which shall be issued under the federal act.
Section 39-23-50. (a)(A) The Commissioner Department of Health and Environmental Control is hereby directed to shall promulgate regulations exempting from any a labeling or packaging requirement of this chapter drugs and devices which are, in accordance with the practice of the trade, are to be processed, labeled, or repacked in substantial quantities at establishments other than those where originally processed or packed, on condition that such the drugs and devices are not adulterated or misbranded, under the provisions of this chapter upon removal from such the processing, labeling, or repacking establishment.
(b)(B)(1) A drug intended for use by man which (A) is a habit-forming drug to which Section 39-23-40(d)(4) applies; or (B) because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe for use except under the supervision of a practitioner licensed by law to administer such the drug; or (C) is limited by an effective application under Section 39-23-70 to use under the professional supervision of a practitioner licensed by law to administer such the drug, shall may be dispensed only:
(i)(a) upon a written prescription of a practitioner licensed by law to administer such the drug,; or
(ii)(b) upon an oral prescription of such the practitioner which is reduced promptly to writing and filed by the pharmacist,; or
(iii)(c) by refilling any such a written or oral prescription if such the refilling is authorized by the prescriber either in the original prescription or by oral order which is reduced promptly to writing and filed by the pharmacist.
(2) The act of dispensing a drug contrary to the provisions of this paragraph shall be item (1) is deemed to be an act which results in the drug being misbranded while held for sale.
(2)(3) Any A drug dispensed by filling or refilling a written or oral prescription of a practitioner licensed by law to administer such the drug shall be is exempt from the requirements of Section 39-23-40, except paragraphs (a) items (1), (i)(2) (9)(b) and (3)(c), (k)(11), and the packaging requirements of paragraphs (g) (7) and (h) (8), if the drug bears a label containing the name and address of the dispenser, the serial number and date of the prescription or of its filling, the name of the prescriber, and if stated in the prescription the name of the patient, and the directions for use and cautionary statements, if any, contained in such the prescription. This exemption shall does not apply to any a drug dispensed in the course of the conduct of a business of dispensing drugs pursuant to diagnosis by mail, or to a drug dispensed in violation of paragraph (1) of this subsection item (1).
(3)(4) The Commissioner Department of Health and Environmental Control may by regulation may remove drugs subject to Section 39-23-40(d)(4) and Section 39-23-70 from the requirements of paragraph item (1) of this subsection when such the requirements are not necessary for the protection of the public health. Drugs removed from the prescription requirements of the federal act by regulations issued thereunder may under it also by regulations issued promulgated by the Commissioner Department of Health and Environmental Control, may be removed from the requirements of paragraph item (1) of this subsection.
(4)(5) A drug which is subject to paragraph item (1) of this subsection shall be is misbranded if at any time prior to before dispensing its label fails to bear the statement 'Caution: Federal law prohibits dispensing without prescription.' A drug to which paragraph item (1) of this subsection does not apply shall be is deemed to be misbranded if at any time prior to before dispensing its label bears the caution statement quoted in the preceding sentence.
(5)(6) Nothing in this subsection shall be construed to relieve any relieves a person from any a requirement prescribed by or under authority of law with respect to drugs now included or which may hereafter be included within the classifications stated in Sections 44-49-10, 44-49-40, 44-49-50, and 44-53-110 to 44-53-580.
Section 39-23-55. (A) For purposes of this section, 'sample' means a unit of a drug which is not intended by the manufacturer to be sold and which is intended to promote the sale of the drug.
(B) The department may not require the labeling of a prescription or nonprescription drug sample for which a physician does not require a federal or state controlled substance license to dispense, when the physician dispenses it to a patient for no charge. If the sample is not in the manufacturer's original package, the physician shall label it meeting all requirements of nonsample prescription medication. If adequate directions for usage are not provided on the manufacturer's package, the physician shall give adequate written directions.
(C) The labeling exemption established in this section does not apply when more than one hundred twenty dosage units or a thirty-day supply of a drug in solid form or eight ounces of a drug in liquid form is dispensed.
Section 39-23-60. In accordance with federal standards, the Commissioner Department of Health and Environmental Control shall promulgate regulations providing for the listing of coal-tar colors which are harmless and suitable for use in drugs for purposes of coloring only and for the certification of batches of such the colors, with or without harmless diluents.
Section 39-23-70. (A) No person shall may introduce or deliver for introduction into intrastate commerce any a new drug unless an application filed pursuant to subsection (B) is effective with respect to such the drug, or an application with respect thereto to the drug has been approved and such the approval has not been withdrawn under Section 505 of the federal act.
(B) Any A person may file with the Commissioner of the Department of Health and Environmental Control an application with respect to any a drug subject to the provisions of subsection (A). Such The persons shall submit to the Commissioner of the Department of Health and Environmental Control as a part of the application:
(1) full reports of investigations which have been made to show whether or not such the drug is safe for use;
(2) a full list of the articles used as components of such the drug;
(3) a full statement of the composition of such the drug;
(4) a full description of the methods used in, and the facilities and controls used for, the manufacture, processing, and packing of such the drug;
(5) such samples of such the drug and of the articles used as components thereof of the drug as the Commissioner of the Department of Health and Environmental Control may require; and
(6) specimens of the labeling proposed to be used for such the drug.
(C) An application provided for in subsection (B) shall become is effective on the one hundred eightieth day after the its filing thereof, except that if. However, the Commissioner of the Department of Health and Environmental Control, before the effective date of the application, shall issue an order refusing to permit the application to become effective if he finds, after due notice to the applicant and giving him an opportunity for a hearing,:
(1), that the drug is not safe or not effective for use under the conditions prescribed, recommended, or suggested in the its proposed labeling thereof; or
(2) the methods used in, and the facilities and controls used for, the manufacture, processing, and packing of such the drugs are inadequate to preserve its identity, strength, quality, and purity; or
(3) based on a fair evaluation of all material facts, such the labeling is false or misleading in any particular; he shall, prior to the effective date of the application, issue an order refusing to permit the application to become effective.
(D) If The Commissioner of the Department of Health and Environmental Control, before the effective date of the application, shall issue an order refusing to permit the application to become effective if he finds, after due notice to the applicant and giving him an opportunity for a hearing, that:
(1) the investigations, reports of which are required to be submitted to the Commissioner commissioner pursuant to subsection (B), do not include adequate tests by all methods reasonably applicable to show whether or not such the drug is safe for use under the conditions prescribed, recommended, or suggested in the its proposed labeling thereof;
(2) the results of such the tests show that such the drug is unsafe for use under such the conditions or do not show that such the drug is safe for use under such the conditions;
(3) the methods used in, and the facilities and controls used for, the manufacture, processing, and packing of such the drug are inadequate to preserve its identity, strength, quality, and purity; or
(4) upon the basis of the information submitted to him as part of the application or upon the basis of any other information before him with respect to such the drug, he has insufficient information to determine whether such the drug is safe for use under such the conditions, he shall, prior to the effective date of the application, issue an order refusing to permit the application to become effective.
(E) The effectiveness of an application with respect to any a drug shall, after due notice and opportunity for hearing to the applicant, by order of the Commissioner of the Department of Health and Environmental Control stating the findings upon which it is based, must be suspended if the Commissioner commissioner finds that:
(1) that clinical experience, tests by new methods, or tests by methods not deemed reasonably applicable when such the application became effective show that such the drug is unsafe for use under conditions of use upon the basis of which the application became effective,; or
(2) that the application contains any an untrue statement of a material fact. The order shall state the findings upon which it is based.
(F) An order refusing to permit an application with respect to any a drug to become effective shall must be revoked whenever the Commissioner of the Department of Health and Environmental Control finds that the facts so require.
(G) Orders of the Commissioner of the Department of Health and Environmental Control issued under this section shall must be served:
(1) in person by an officer or employee of the Department of Health and Environmental Control designated by the Commissioner commissioner; or
(2) by mailing the order by registered mail addressed to the applicant or respondent at his last known address in the records of the Commissioner commissioner.
(H) An appeal may be taken by the applicant from an order of the Commissioner of the Department of Health and Environmental Control refusing to permit the application to become effective, or suspending the effectiveness of the application. Such The appeal shall must be taken by filing in the circuit court within any a circuit wherein such in which the applicant resides or has his principal place of business, within sixty days after the entry of such the order, a written petition praying that the order of the Commissioner commissioner be set aside. A copy of such the petition shall must be forthwith served immediately upon the Commissioner commissioner or upon any an officer designated by him for that purpose, and thereupon the Commissioner commissioner shall certify and file in the court a transcript of the record upon which the order complained of was entered. Upon the filing of such the transcript such the court shall have has exclusive jurisdiction to affirm or set aside such the order. No objection to the order of the Commissioner commissioner shall may be considered by the court unless such the objection shall have has been argued before the Commissioner commissioner or unless there were reasonable grounds for failure so to do. The findings of the Commissioner commissioner as to the facts, if supported by substantial evidence, shall be are conclusive. If any a person shall apply applies to the court for leave to adduce additional evidence, and shall show shows to the satisfaction of the court that such the additional evidence is material and that there were reasonable grounds for failure to adduce such the evidence in the proceeding before the Commissioner commissioner, the court may order such the additional evidence to be taken before the Commissioner commissioner and to be adduced upon the hearing in such a manner and upon such terms and conditions as the court may deem proper. The Commissioner commissioner may modify his findings as to the facts by reason of the additional evidence so taken, and he shall file with the court such the modified findings which, if supported by substantial evidence, shall be are conclusive, and his recommendation, if any, for the setting aside of the original order. The judgment and decree of the court affirming or setting aside any such an order of the Commissioner commissioner shall be is final, subject to review as provided by statute. The commencement of proceedings under this subsection shall not, unless specifically ordered by the court to the contrary, does not operate as a stay of the Commissioner's commissioner's orders.
(I) The Commissioner Department of Health and Environmental Control shall promulgate regulations for exempting from the operation of this section drugs intended solely for investigational use by experts qualified by scientific training and experience to investigate the safety of drugs.
Section 39-23-80. (A) It is unlawful to do or cause the following acts:
(1) introduction or delivery for introduction into commerce within the State of a drug or device that is adulterated or misbranded;
(2) adulteration or misbranding of a drug or device in intrastate commerce;
(3) receipt in intrastate commerce of a drug or device that is adulterated or misbranded, and the delivery or proffered delivery of a drug or device for pay or otherwise;
(4) manufacture of a drug or device within the State which is adulterated or misbranded;
(5) forging, counterfeiting, simulating, or falsely representing, or without proper authority using any a mark, stamp, tag, or label, or other identification device authorized or required by regulations promulgated under the provisions of this chapter or the federal act;
(6) alteration, mutilation, destruction, obliteration, or removal of the whole or any a part of the labeling of, or the doing of any other another act with respect to, a drug or device, if the act is done while the article is held for sale, (whether or not the first sale), after shipment in intrastate commerce and results in the article being adulterated or misbranded;
(7) using, on the label of a drug or in an advertisement relating to the drug, any a representation or suggestion that an application with respect to the drug is effective under Section 39-23-70, or that the drug complies with the provisions of that section.
(B)(1) A person who violates a provision of this section is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than two years, or fined not more than five thousand dollars, or both for a first offense.
(2) A person convicted under this section for a second offense is guilty of a felony and, upon conviction, must be imprisoned not more than five years or fined not more than ten thousand dollars, or both.
(3) A violation with intent to defraud or mislead is a felony and, upon conviction, the person must be imprisoned not more than five years or fined not more than ten thousand dollars, or both.
Section 39-23-100. (A) Any A drug or device that is adulterated or misbranded when introduced into or while in intrastate commerce or while held for sale, (whether or not the first sale), after shipment in intrastate commerce, or which may not, under the provisions of Section 39-23-50, may not be introduced into intrastate commerce, shall be is liable to be proceeded against while in intrastate commerce or at any after that time thereafter, on libel of information and condemned in any a circuit court of the State within the jurisdiction of which the article is found; provided,. However, that no libel for condemnation shall may be instituted under this chapter, for any alleged misbranding if there is pending in any a court a libel for condemnation proceeding under this chapter based upon the same alleged misbranding, and. Not more than one such libel for condemnation proceeding shall may be instituted if no such proceeding is so pending, except that such the limitations shall do not apply (1) when such misbranding has been the basis of a prior judgment in favor of the State, in a criminal injunction, or libel for condemnation proceeding under this chapter, or (2) when the Commissioner of the Department of Health and Environmental Control has probable cause to believe from facts found, without hearings, by him or any an officer or employee of the Department of Health and Environmental Control that the misbranding is dangerous to health, or that the labeling of the misbranded article is fraudulent, or would be in a material respect misleading to injury or damage of the purchaser or consumer. In any case Where the number of libel for condemnation proceedings is limited as above provided in this subsection, the proceeding pending or instituted shall, on application of the claimant, reasonably made, must be removed for trial to any a circuit agreed upon by stipulation between the parties, or, in case of for failure to so stipulate within a reasonable time, the claimant may apply to the court of the circuit in which the seizure has been made, and such the court, (after giving the Attorney General or other attorney for the Department of Health and Environmental Control reasonable notice and opportunity to be heard), shall by order, unless good cause to the contrary is shown, by order shall specify a circuit of reasonable proximity to the claimant's principal place of business to which the case shall must be removed for trial.
(B) The article shall be is liable to seizure by process pursuant to the libel, and the procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty; except that. However, on demand of either party, any an issue of fact joined in any such a case shall must be tried by jury. When libel for condemnation proceedings under this section, involving the same claimant and the same issues of adulteration or misbranding, are pending in two or more jurisdictions, such the pending proceedings, upon application of the claimant reasonably made to the court of one such jurisdiction of the jurisdictions, shall must be consolidated for trial by order of such that court, and tried in (1) any a circuit selected by the claimant where one of such the proceedings is pending; or (2) a circuit agreed upon by stipulation between the parties. If no order for consolidation is so made within a reasonable time, the claimant may apply to the court of one such jurisdiction of the jurisdictions, and such that court, (after giving the Attorney General or other attorney for the Department of Health and Environmental Control reasonable notice and opportunity to be heard) shall by order, unless good cause to the contrary is shown, by order shall specify a circuit of reasonable proximity to the claimant's principal place of business, in which all pending proceedings shall must be consolidated for trial and tried. Such The order of consolidation shall may not apply so as to require the removal of any a case the date for trial of which has been fixed. The court granting such the order shall give prompt notification thereof of the order to the other courts having jurisdiction of the cases covered thereby by the order.
(C) The court at any time after seizure up to a reasonable time before trial shall by order shall allow any a party to a condemnation proceeding, his attorney or agent, to obtain a representative sample of the article seized.
(D) Any A drug or device condemned under this section shall, after entry of the decree, must be disposed of by destruction or sale as the court may, in accordance with the provisions of this section, may direct and the proceeds thereof, if sold, less the legal costs and charges, shall must be paid into to the Treasury of the State of South Carolina; but such Treasurer. However, the article shall must not be sold under such the decree contrary to the provisions of this chapter or the laws of the jurisdiction in which sold; provided, that. After entry of the decree and upon the payment of the costs of such proceedings and the execution of a good and sufficient bond conditioned that such the article shall must not be sold or disposed of contrary to the provisions of this chapter or the laws of any a state or territory in which sold, the court may by order may direct that such the article be delivered to the its owner thereof to be destroyed or brought into compliance with the provisions of this chapter under the supervision of an officer or employee duly designated by the Commissioner of the Department of Health and Environmental Control, and. The expenses of such the supervision shall must be paid by the person obtaining release of the article under bond. Any An article condemned by reason of its being an article which may not, under Section 39-23-70, may not be introduced into intrastate commerce, shall must be disposed of by destruction.
(E) When a decree of condemnation is entered against the article, court costs of fees, and storage and other proper expenses, shall must be awarded against the person, if any, intervening as claimant of the article.
(F) In the case of For removal for trial of any a case as provided by subsection (A) or (B):
(1) The clerk of the court from which removal is made shall promptly shall transmit to the court in which the case is to be tried all records in the case necessary in order that such so the court may exercise jurisdiction.
(2) The court to which such the case was removed shall have has the powers and be is subject to the duties, for purposes of such the case, which the court from which removal was made would have had, or to which such the court would have been subject, if such the case had not been removed.
Section 39-23-110. Before any a violation of this chapter is reported by the Commissioner of the Department of Health and Environmental Control to the Attorney General for institution of a criminal proceeding, the person against whom such the proceeding is contemplated shall must be given appropriate notice and an opportunity to present his views, either orally or in writing, with regard to such the contemplated proceeding.
Section 39-23-120. Nothing in this chapter shall may be construed as requiring the Commissioner of the Department of Health and Environmental Control to report for prosecution, or for the institution of libel or injunction proceedings, minor violations of this chapter whenever he believes that the public interest will be adequately served adequately by a suitable written notice or warning.
Section 39-23-130. The Commissioner of the Department of Health and Environmental Control may, upon service of written notice, may embargo any a drug, or device, or other substance for a period not to exceed more than fifteen days if such the drug, device, or substance is suspected of being adulterated or misbranded,. The purpose of such the embargo being is to prevent the removal of such the drug, device, or substance from the jurisdiction of the Commissioner of the Department of Health and Environmental Control until an investigation of such the suspected adulteration or misbranding may be conducted."
SECTION 119. Section 40-6-180 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 40-6-180. No license may be denied, suspended, or revoked, and no other disciplinary action against a licensee may be taken, until after fifteen days' notice has been given in writing to the licensee or applicant stating the ground of the proposed action and until a public hearing has been held at which he shall have opportunity to be heard, present testimony in his behalf, and be confronted by witnesses against him, if he requests the hearing. The commission, in its discretion, may grant the accused a temporary permit to auction pending the hearing and determination. Determinations must be made and the licensee or applicant notified of them within five days after the hearing. Any auctioneer notified of a suspension may request a rehearing within twenty days from the date of notification of determination. Upon a rehearing and continued denial, suspension, or revocation of license, or other disciplinary action, or upon a refusal for rehearing, the party is entitled to appeal his case to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 (the Administrative Procedures Act). The commission or its authorized representatives may subpoena witnesses and documents for any hearing and may administer oaths to the witnesses. (A) Before denying, suspending, or revoking a license and before issuing a written or oral reprimand or assessing a fine, the commission shall notify the applicant or licensee of the charges and grant the applicant or licensee an opportunity to be heard. The hearing must be held not less than thirty days after the applicant or licensee is notified of the charges. If charges are brought against an apprentice auctioneer, the apprentice's supervising auctioneer also must be notified of the charges. Hearing of the charges must be at a time and place designated by the commission and must be conducted in accordance with the Administrative Procedures Act.
(B) Every licensee or applicant aggrieved by a decision of the commission in denying, suspending, or revoking any license or in issuing reprimands or fines provided under the provisions of this chapter may appeal from the decision of the commission to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
SECTION 120. Section 40-15-210 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 40-15-210. The person whose license or registration certificate has been suspended or revoked may, within thirty days, appeal from the action of the board in suspending or revoking the same to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. The board shall certify to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for its consideration a record of the hearing before the board. Any person who practices dentistry or dental hygiene or performs dental technological work, in violation of the provisions of this chapter, is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than two years, or both. Each violation constitutes a separate offense. The provisions of this section apply to any person aiding or abetting in any violation of this chapter."
SECTION 121. Section 40-25-40(C) of the 1976 Code, as last amended by Act 312 of 1992, is further amended to read:
"(C) Members of the commission in subsection (B)(1)(a) through (d) must be appointed by the Governor with the advice and consent of the Senate. Before appointing the member in subsection (B)(1)(d) the Governor shall invite recommendations from the South Carolina Hearing Aid Society, the Commission Division on Aging in the Office of the Governor, the Department of Consumer Affairs, the Department of Education, the Department of Vocational Rehabilitation, the Board of Commissioners of the School for the Deaf and the Blind, and other agencies or organizations which might have knowledge of qualified citizens to serve on the commission. The term of each member is four years. Before a member's term expires the Governor, with the advice and consent of the Senate, shall appoint a successor to assume his the member's duties at the expiration of the term. A vacancy must be filled in the manner of the original appointment. The members annually shall designate one member as chairman and another as secretary. No member of the commission who has served two or more full terms may be reappointed until at least one year after the expiration of his the member's most recent full term of office."
SECTION 122. Section 40-35-10(5) of the 1976 Code, as last amended by Act 605 of 1990, is further amended to read:
"(5) 'Qualified mental retardation professional' means a person who, by training and experience, meets the requirements of applicable federal law and regulations for a qualified mental retardation professional, as determined by the South Carolina Department of Mental Retardation Department of Disabilities and Special Needs."
SECTION 123. Section 40-35-140 of the 1976 Code, as last amended by Act 605 of 1990, is further amended to read:
"Section 40-35-140. Habilitation centers for the mentally retarded or persons with related conditions funded in whole or in part by the Department of Mental Retardation Disabilities and Special Needs must be under the supervision of a licensed nursing home administrator or a qualified mental retardation professional who has been determined by the department to have the requisite training and experience."
SECTION 124. Section 40-47-140 of the 1976 Code, as last amended by Act 432 of 1990, is further amended to read:
"Section 40-47-140. (A) The board by regulation shall establish minimum standards of performance to be attained on examinations for an applicant to qualify for a license.
(B) For FLEX examinations taken before June 1, 1985, the following standards apply:
An applicant for permanent licensure shall obtain, in one sitting, a score of at least seventy-five on each day of the examination. If the applicant has a FLEX weighted average of seventy-five or more with no daily score below seventy, the board may accept this score if the applicant currently is board certified by a specialty board recognized by the American Board of Medical Specialties.
(C) For FLEX examinations taken after June 1, 1985, the following standards apply:
An applicant for permanent licensure shall obtain a score of seventy-five or more on both Component I and Component II. An applicant shall pass both components within five years of the first taking of any component of this examination.
(D) For the SPEX (Special Purpose) examination, the following standards apply:
An applicant for permanent licensure who has not passed National Boards, FLEX, SPEX, or been certified or recertified by a Specialty Board recognized by the American Board of Medical Specialties within ten years of the date of his application to this board, shall pass the SPEX exam. A passing score on the SPEX examination is seventy-five or better. This requirement is in addition to all other requirements for licensure. The SPEX examination requirement does not apply to a physician employed full time by the South Carolina Department of Corrections, South Carolina Department of Health and Environmental Control, State Department of Mental Health, and State Mental Retardation Department Department of Disabilities and Special Needs acting within the scope of his employment. A license issued to this physician is revoked immediately if he leaves the full-time employment or acts outside his scope of employment. However, the SPEX examination requirement applies to a physician providing services under a contract for the State and a physician providing services for which there is an expectation of payment, is payment for services, or should have been payment from a source other than the salary the physician receives from the State."
SECTION 125. The 1976 Code is amended by adding:
"Section 40-73-17. Notwithstanding any other provision of law, the South Carolina Department of Labor, Licensing, and Regulation shall provide legal services to all its divisions including those which by statute are provided legal services by the Attorney General of South Carolina."
SECTION 126. Section 41-10-70 of the 1976 Code, as last amended by Act 463 of 1990, is further amended to read:
"Section 41-10-70. Upon written complaint of any employee alleging a violation of this chapter, the Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee may institute an investigation of the alleged violation. If the Commissioner of Labor director determines that a violation exists, he shall endeavor to resolve all issues by informal methods of mediation and conciliation."
SECTION 127. Section 41-10-80 of the 1976 Code, as last amended by Act 463 of 1990, is further amended to read:
"Section 41-10-80. (A) Any employer who violates the provisions of Section 41-10-30 must be given a written warning by the Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee for the first offense and must be assessed a civil penalty of not more than one hundred dollars for each subsequent offense.
(B) Any employer who violates the provisions of Section 41-10-40 must be assessed a civil penalty of not more than one hundred dollars for each violation. Each failure to pay constitutes a separate offense.
(C) In case of any failure to pay wages due to an employee as required by Section 41-10-40 or 41-10-50 the employee may recover in a civil action an amount equal to three times the full amount of the unpaid wages, plus costs and reasonable attorney's fees as the court may allow. Any civil action for the recovery of wages must be commenced within three years after the wages become due.
(D) The Commissioner of Labor director shall promulgate regulations to establish a procedure for administrative review of any civil penalty assessed by the commissioner him."
SECTION 128. Section 41-10-90 of the 1976 Code, as last amended by Act 380 of 1986, is further amended to read:
"Section 41-10-90. In each case where a civil penalty assessed under subsection (A) or (B) of Section 41-10-80(A) or (B) is not paid within sixty days, the Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee shall bring an action against the assessed employer for collection of the penalty. Any amounts collected must be turned over to the State Treasurer for deposit in the general fund of the State."
SECTION 129. Section 41-10-110 of the 1976 Code, as last amended by Act 380 of 1986, is further amended to read:
"Section 41-10-110. The Commissioner of Labor, his inspectors, agents, or designees Director of the Department of Labor, Licensing, and Regulation or his designee, upon proper presentation of credentials to the owner, manager, or agent of the employer, may enter at reasonable times and have the right to question either publicly or privately any employer, owner, manager, or agent and the employees of the employer and inspect, investigate, reproduce, or photograph time records or payroll records for the purpose of determining that the provisions of this chapter are complied with."
SECTION 130. Section 41-13-20 of the 1976 Code is amended to read:
"Section 41-13-20. No employer in this State shall may engage in any oppressive child labor practices. The Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee shall promulgate regulations pursuant to Sections 1-23-10, et seq. which will prohibit and prevent such oppressive child labor practices provided that such. However, the regulations shall must not be more restrictive or burdensome than applicable federal laws or regulations."
SECTION 131. Section 41-13-25 of the 1976 Code, as last amended by Act 135 of 1989, is further amended to read:
"Section 41-13-25. (A) As determined by the Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee, an employer who violates a child labor regulation promulgated pursuant to this chapter must be given a written warning of the violation for a first offense and fined not less than ten dollars nor more than fifty dollars for each subsequent offense. Each day during which the violation continues is a separate offense, and each child employed in violation of a regulation is a separate offense.
(B) The findings of the commissioner director, including the amount of the fine, are final unless within thirty days after receipt of their notice by certified mail the employer requests in writing to the commissioner director a review of the findings or the amount of the fine. If a request for review is made to the commissioner director, a final determination must be made after an opportunity for a hearing pursuant to the Administrative Procedures Act.
(C) The amount of the fine as finally determined may be recovered in a civil action brought in a court of competent jurisdiction and deposited in the state general fund."
SECTION 132. Section 41-13-50 of the 1976 Code is amended to read:
"Section 41-13-50. The Commissioner of Labor and the inspectors and agents Director of the Department of Labor, Licensing, and Regulation or his designee of the Department of Labor shall enforce the provisions of this chapter, make complaints against persons violating its provisions, and institute prosecutions for violation thereof of them."
SECTION 133. Section 41-13-60 of the 1976 Code is amended to read:
"Section 41-13-60. The Commissioner director and the inspectors and agents of the Department division may enter and inspect at any time any place or establishment where minors are employed and may have access to all such records as may aid in the enforcement of this chapter."
SECTION 134. Section 41-15-90 of the 1976 Code is amended to read:
"Section 41-15-90. The Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee shall issue rules and regulations requiring that employers keep their employees informed of their protections and obligations under this chapter, including the provisions of applicable safety and health regulations, through the posting of notices or other appropriate means. The provisions of Section 41-15-80 and this section shall do not apply to employers subject to the provisions of the Federal Railway Safety Act of 1970."
SECTION 135. Section 41-15-100 of the 1976 Code is amended to read:
"Section 41-15-100. The Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee shall issue regulations requiring employers to monitor and measure an employee's exposure to potentially toxic materials or harmful physical agents and to maintain accurate records of such the employee exposure. Such These regulations shall must provide employees or their representatives with an opportunity to observe such the monitoring or measuring and to have access to the records thereof of it. Such These regulations shall also must make appropriate provision for each employee or former employee to have access to such records as will indicate his own exposure to toxic materials or harmful physical agents. Each employer shall notify promptly notify any employee who has been or is being exposed to toxic material or harmful physical agents in concentrations or at levels which exceed those prescribed by an applicable occupational safety and health standard promulgated under Sections 41-15-210 to 41-15-330, as amended, and shall inform any employee who is being thus exposed of the corrective action being taken.
Where appropriate, such these regulations also shall also prescribe the type and frequency of medical examinations or other tests which shall must be made available, by the employer or at his cost, to employees exposed to such the hazards in order to most effectively determine whether the health of such the employees is adversely affected by such the exposure. The results of such the medical examinations or other tests shall must be made available to the employer, the Commissioner director, and at the request of the employee, to his physician.
In the event If such the medical examinations or other tests are in the nature of research, such the examinations may be furnished at the expense of the Department Division of Labor. The results of such the examinations or tests shall must be furnished only to the Commissioner of Labor director and, at the request of the employee, to his physician."
SECTION 136. Section 41-15-210 of the 1976 Code is amended to read:
"Section 41-15-210. The Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee may promulgate, modify, or revoke rules and regulations which will have full force and effect of law upon being properly certified and filed for the purpose of attaining the highest degree of health and safety protection for any and all employees working within the State of South Carolina, whether employed in the public or private sector."
SECTION 137. Section 41-15-220 of the 1976 Code is amended to read:
"Section 41-15-220. (A) Before the promulgation, modification, or revocation of a regulation issued pursuant to this article, the commissioner director shall conduct a public hearing at which all interested persons, including employer and employee representatives, must be provided an opportunity to appear and present their comments orally or written, or both. Notice of the hearing must be published in the State Register and in at least three newspapers, at least one of which has circulation in upper, lower, and middle South Carolina, once a week for three weeks. The notice must contain the date, time, and place of the hearing and a brief description of the proposed regulation.
(B) Occupational safety and health standards promulgated pursuant to this article are not subject to the Administrative Procedures Act. After promulgation the department division shall file a notice in the Legislative Council to be published in the State Register. This notice must refer to the federal occupational safety and health administration standards which have been repromulgated under this section and give specific notice of differences between the state and federal standard. Filing and publication of notice in the State Register give notice of the contents of the standard to a person subject to or affected by it.
(C) Publication of the notice creates a rebuttable presumption that the:
(1) standard to which it refers was promulgated under this section;
(2) notice was filed and made available for public inspection at the day and hour stated in it;
(3) copy on file in the Legislative Council is a true copy of the original."
SECTION 138. Section 41-15-230 of the 1976 Code is amended to read:
"Section 41-15-230. Any rule or regulation promulgated, modified, or revoked under this article may contain a provision delaying its effective date for such a period (not in excess of ninety days) as the Commissioner director determines may be necessary to insure ensure that affected employers and employees will be informed of the existence, modification, or revocation of the rule or regulation and of its terms and that employers affected are given an opportunity to familiarize themselves and their employees with the existence of the requirements of the rule or regulation."
SECTION 139. Section 41-15-240 of the 1976 Code is amended to read:
"Section 41-15-240. Any affected employer may apply to the Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee for a temporary permit granting a variance from a rule or regulation or any provision thereof of it promulgated under this article. Affected employees shall must be given notice by the employer of each such application and shall must be furnished an opportunity to participate in any hearing which shall must be directed at the request of the employer or by the Commissioner director on his own motion. Such The temporary permit shall must be granted at the discretion of the Commissioner director if sufficient evidence establishes that:
(a) He is unable to comply with a rule or regulation by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the rule or regulation or because necessary construction or alteration of facilities cannot be completed by the effective date;.
(b) He is taking all available steps to safeguard his employees against the hazard covered by the rule or regulation;.
(c) He has an effective program for coming into compliance with the rule or regulation as quickly as practicable. Any temporary permit issued under this section shall must prescribe the practices, means, methods, operations, and processes which the employer must shall adopt and use while the permit is in effect and state in detail his program for coming into compliance with the rule or regulation.
No temporary permit may be in effect for longer than the period needed by the employer to achieve compliance with the rule or regulation or for one year, whichever is shorter, except that such an order may be renewed not more than twice (1) so long as the requirements of this paragraph are met and (2) if an application for a renewal is filed at least ninety days prior to before the expiration date of the order. The form of the application itself for a temporary permit shall must be as prescribed by the Commissioner director."
SECTION 140. Section 41-15-250 of the 1976 Code is amended to read:
"Section 41-15-250. Any affected employer may apply to the Commissioner director for a permit for a permanent variance from a rule or regulation promulgated under this article. Affected employees and their bargaining representative, if any, shall must be given notice by the employer of each such application and shall must be furnished an opportunity to participate in a hearing. The Commissioner director shall issue such the permit if he determines on the record, after opportunity for an inspection where applicable and a hearing, that the proponent of a variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the rule and regulation. The permit so issued shall must prescribe the conditions the employer must shall maintain and the practices, means, methods, operations, and processes which he must shall adopt and utilize to the extent they differ from the rule or regulation in question. Such a This permit may be revoked or modified upon application by an employer, employee, or by the Commissioner director on his own motion, in the manner prescribed for its issuance under this section at any time after six months from its issuance."
SECTION 141. Section 41-15-260 of the 1976 Code is amended to read:
"Section 41-15-260. (A) The Commissioner director, his inspectors, compliance officers, agents, or designees, upon proper presentation of credentials to the owner, manager, or agent of the employer, shall enter at reasonable times and have has the right to question either publicly or privately any such employer, owner, manager, agent, or the employees of the employer and inspect, investigate, reproduce, photograph, and sample all pertinent places, sites, areas, work injury records, and such other records during regular working hours and at other reasonable times, and within reasonable limits, and in a reasonable manner when such it comes under the jurisdiction of the Commissioner director to enforce the occupational safety and health provisions of this title.
(B) If an inspector is denied admission for purposes of inspection, the Commissioner director may seek a warrant as follows:
(1) Any circuit judge having jurisdiction where the inspection and investigation is to be conducted is empowered to may issue administrative warrants upon proper showing of the need for such entry. Such The inspection and investigation may include interviewing of employees, photographing, reproducing, sampling, and such other tests and acts as are necessary to carry out the purposes of the inspection and investigation.
(2) A warrant shall may be issued only upon an affidavit of an officer or employee of the Department Division of Labor duly designated and having knowledge of the facts alleged, sworn to before the circuit judge establishing the grounds for issuing the warrant and certifying that request for permission to conduct the inspection has been made to the employer concerned and was refused and that the Commissioner of Labor director has authorized the application for issuance of the warrant. If the circuit judge is satisfied that grounds for the application exist, he shall issue a warrant identifying the area, premises, building, or conveyance to be inspected, the purpose of such inspection, and, where appropriate, the type of property to be inspected. The warrant shall must be directed to a person authorized by the Commissioner of Labor director to execute it. The warrant shall must state the grounds for issuance with the supporting affidavit being made a part thereof of it. It shall must command the person to whom it is directed to inspect the area, premises, building, or conveyance identified for the purpose specified. The warrant shall must direct that it be served at a reasonable time. It shall and designate the circuit judge to whom it shall must be returned.
(3) A warrant issued pursuant to this section shall must be served within ten days and returned within thirty days of its date of issue. The circuit judge who has issued a warrant under this section shall attach to the warrant a copy of the return and all papers filed in connection therewith with it and shall cause them to be filed with the court which issued such the warrant.
(4) Any circuit judge authorized to issue warrants pursuant to this section shall keep a record along with a copy of the return warrant and supporting affidavit and documents for a period of three years from date of issuance of each warrant. The record shall must be on a form prescribed by the Commissioner of Labor director and reflect as to each warrant:
(a) date and exact time of issue;
(b) name of person to whom warrant issued;
(c) name of person whose establishment or site is to be inspected;
(d) reason for issuance of warrant;
(e) date and time of return."
SECTION 142. Section 41-15-270 of the 1976 Code is amended to read:
"Section 41-15-270. The Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee may subpoena witnesses, documents, take and preserve testimony, examine witnesses, administer oaths, and, upon proper presentation of credentials to the owner, manager or agent of the employer, enter any place, site, or area where employment comes under the jurisdiction of the Commissioner director and interrogate any person employed therein in it or connected therewith with it or the proper officers of a corporation or employer, or he may file a written or printed list of interrogatories and require full and complete answers to them to be returned under oath within fifteen days of the receipt of such the list."
SECTION 143. Section 41-15-280 of the 1976 Code is amended to read:
"Section 41-15-280. If, upon inspection or investigation, the Commissioner director or his authorized representative ascertains that an employer has violated a requirement of any rule or regulation promulgated pursuant to this article, he shall with reasonable promptness shall issue a citation to the employer. Each citation shall must be in writing and shall must describe with particularity the nature of the violation or violations, including a reference to any statute or rule or regulation alleged to have been violated. The citation shall fix a reasonable time for the abatement of the violation. The Commissioner director may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health. Such This notice shall have has the effect of a recommendation to the employer;. Compliance will is not be required.
Each citation issued under this section, or a copy or copies thereof of it, shall must be posted prominently posted, as prescribed in regulations issued by the Commissioner director, at or near each place a violation referred to in the citation occurred.
No citation may be issued under this section after the expiration of six months following the occurrence of any violation."
SECTION 144. Section 41-15-290 of the 1976 Code is amended to read:
"Section 41-15-290. (a) The court of common pleas of the county where the place of employment is located shall have has jurisdiction, upon petition of the Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee, to restrain any conditions or practices in any place of employment which are such that a danger exists which reasonably could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such the danger can be eliminated through the enforcement procedures provided by law. Any order issued under this section may require such steps to be taken as may be necessary to avoid, correct, or remove such the imminent danger and prohibit the employment or presence of any individual in locations or under conditions where such the imminent danger exists, except individuals whose presence is necessary to avoid, correct, or remove such imminent danger or to maintain the capacity of a continuous process operation to resume normal operations without a complete cessation of operations, or where a cessation of operations is necessary to permit such it to be accomplished in a safe and orderly manner.
(b) Upon the filing of any such a petition the court of common pleas shall have has jurisdiction to grant such the injunctive relief or temporary restraining order pending the outcome of an enforcement proceeding pursuant to the law.
(c) Whenever and as soon as a safety specialist concludes that conditions or practices described in item subsection (a) exist in any place of employment, he shall inform the affected employees and employers of the danger and that he is recommending to the Commissioner director that relief be sought.
(d) If the Commissioner of Labor, or his authorized representative, Director of the Department of Labor, Licensing, and Regulation or his designee arbitrarily or capriciously fails to seek relief under this section, any employee who may be injured or aggrieved by reason of such the failure, or the representative of such the employees, may bring an action against the Commissioner director in the court of common pleas for the district in which the imminent danger is alleged to exist, or the employer has its principal office, or an affected employee resides, for a writ of mandamus to compel the Commissioner director to seek such an order and for such further relief as may be appropriate."
SECTION 145. Section 41-15-300 of the 1976 Code is amended to read:
"Section 41-15-300. If, after an inspection or investigation, the Commissioner director issues a citation, he shall within a reasonable time after the termination of such the inspection or investigation, he shall notify the employer by certified mail of the penalty, if any, assessed under Section 41-15-320."
SECTION 146. Section 41-15-320 of the 1976 Code, as last amended by Act 25 of 1991, is further amended to read:
"Section 41-15-320. (a) Any employer who wilfully or repeatedly violates any occupational safety or health rule or regulation promulgated pursuant to this article may be assessed a civil penalty of not more than seventy thousand dollars for each violation.
(b) Any employer who has received a citation for a serious violation of an occupational safety or health rule or regulation promulgated pursuant to this article may be assessed a civil penalty of up to not more than seven thousand dollars for each such violation.
(c) Any employer who has received a citation for a violation of an occupational safety or health rule or regulation or order promulgated pursuant to this article, and such the violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to not more than seven thousand dollars for each such violation.
(d) Any employer who fails to correct a violation for which a citation has been issued under Section 41-15-280 within the period permitted for its correction (which period shall does not begin to run until the date of the final order of the commissioner director in the case of any review proceeding initiated by the employer in good faith and not solely for delay or avoidance of penalties), may be assessed a civil penalty of not more than seven thousand dollars for each day during which such the failure or violation continues.
(e) Any employer who wilfully violates any occupational safety or health rule or regulation promulgated pursuant to this article and that violation causes death to any employee shall be deemed is guilty of a misdemeanor and, upon conviction, must be punished by a fine of fined not more than ten thousand dollars or by imprisonment for imprisoned not more than six months, or by both; except that. However, if the conviction is for a violation committed after a first conviction of such the person, punishment shall he must be by a fine of fined not more than twenty thousand dollars or by imprisonment for imprisoned not more than one year, or by both.
(f) Any employer who violates any of the posting requirements, as prescribed under the provisions of this article, may be assessed a civil penalty of up to seven thousand dollars for each violation.
(g) Any person who gives advance notice of any inspection to be conducted under this article, without authority from the Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee, shall be deemed is guilty of a misdemeanor and, upon conviction, shall must be punished by a fine of fined not more than one thousand dollars or by imprisonment for imprisoned not more than six months, or both.
(h) Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this article shall be deemed is guilty of a misdemeanor and, upon conviction, shall must be punished by a fine of fined not more than ten thousand dollars or by imprisonment for imprisoned not more than six months, or both.
(i) For the purposes of this section, an occupational safety or health rule or regulation shall be is deemed to be a rule or regulation promulgated by the Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee pursuant to Section 41-15-210 which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes necessary or appropriate to provide safe or healthful employment and places of employment.
(j) For the purposes of this section, a serious violation shall be deemed to exist exists in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such the place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
(k) Except for items subsections (e), (g), and (h) which establishes establish a misdemeanor over which the courts of general sessions have jurisdiction, all penalty assessments shall must be made by the Commissioner director.
(l) Any amounts collected under this section shall must be turned over to the State Treasurer for deposit in the general fund of the State."
SECTION 147. Section 41-15-520 of the 1976 Code is amended to read:
"Section 41-15-520. Any employee believing that he has been discharged or otherwise discriminated against by any person in violation of Section 41-15-510 may, within thirty days after such the violation occurs, may file a complaint with the Commission Division of Labor of the Department of Labor, Licensing, and Regulation alleging such the discrimination. Upon receipt of such the complaint, the Commissioner Director of the Department of Labor, Licensing, and Regulation or his designee shall cause investigation to be made as he deems considers appropriate. If upon such investigation the Commissioner director determines that the provisions of Section 41-15-510 have been violated, he shall institute an action in the appropriate court of common pleas against such the person. In any such the action the court of common pleas shall have has jurisdiction for cause shown to restrain violations of Section 41-15-510 and shall order all appropriate relief including rehiring or reinstatement of employee to his former position with back pay."
SECTION 148. Section 41-16-20 (3), (4), (13), (14), (15), and (16) of the 1976 Code are amended to read:
"(3) 'Department Division' means the South Carolina Division of Labor of the Department of Labor, Licensing, and Regulation.
(4) 'Commissioner Director' means the Commissioner of the South Carolina Department of Labor or his designee or representative Director of the Department of Labor, Licensing, and Regulation or his designee.
(13) 'New installation' means a facility, the construction or relocation of which is begun, or for which an application for a new installation permit is filed, on or after the effective date of regulations relating to those permits adopted by the commissioner director under authority of this chapter. All other installations are existing installations.
(14) 'Inspector' means an inspector employed by the department division for the purpose of administering this chapter.
(15) 'Special inspector' means an inspector licensed by the commissioner director and not employed by the department division.
(16) 'Provisions of this chapter' include regulations promulgated by the commissioner director pursuant to this chapter."
SECTION 149. Section 41-16-40 of the 1976 Code, as last amended by Act 102 of 1993, is further amended to read:
"Section 41-16-40. 1. The commissioner Director of the Department of Labor, Licensing, and Regulation or his designee shall promulgate regulations governing maintenance, construction, alteration, and installation of facilities and the inspection and testing of new and existing installations as necessary to provide for the public safety and to protect the public welfare. These regulations include, but are not limited to, regulations providing for:
a. classifications of types of facilities.;
b. maintenance, inspection, testing, and operation of the various classes of facilities.;
c. construction of new facilities.;
d. alteration of existing facilities.;
e. minimum safety requirements for all existing facilities.;
f. control or prevention of access to facilities, temporarily decommissioned facilities, or dormant facilities.;
g. the reporting of accidents and injuries arising from the use of facilities.;
h. qualifications for obtaining a special inspector's license, revocation of a special inspector's license, disqualification of special inspectors, and ethics of special inspectors.;
i. the adoption of procedures for the issuance of variances.;
j. the amount of fees charged and collected for inspection, permits, and licenses. Fees must be set at an amount sufficient to cover costs as determined from consideration of the reasonable time required to conduct an inspection, reasonable hourly wages paid to inspectors, and reasonable transportation and similar expenses.
2. Insofar as applicable, regulations adopted for facilities installed after January 1, 1986, must be based on the American National Standard Safety Code for Elevators, Dumbwaiters, Escalators, and Moving Walks, and supplements thereto to it, A.17.1. The commissioner director shall promulgate regulations for facilities installed prior to before January 1, 1986, according to the applicable provisions of the American National Standard Safety Code as he considers necessary. In promulgating regulations the commissioner director may adopt the American National Standard Safety Code, or any part of it, by reference.
3. The commissioner director shall furnish copies of the regulations promulgated by him to any person who requests them, without charge, or upon payment of a charge not to exceed the actual cost of printing of the regulations."
SECTION 150. Section 41-16-50 of the 1976 Code is amended to read:
"Section 41-16-50. The commissioner Director of the Department of Labor, Licensing, and Regulation or his designee is charged with the affirmative duty of administering and enforcing the provisions of this chapter."
SECTION 151. Section 41-16-60 of the 1976 Code is amended to read:
"Section 41-16-60. Within three months after the date of promulgation of regulations under this chapter relating to registration of facilities, the owner of every existing facility, whether or not dormant, shall register each facility with the commissioner Director of the Department of Labor, Licensing, and Regulation or his designee, giving type, contract load and speed, name of manufacturer, its location, and the purpose for which it is used and any other information the commissioner director may require. Registration must be made on a form to be furnished by the department division upon request. Facilities, the construction of which are commenced subsequent to the date of promulgation of those regulations, must be registered in the manner prescribed by the commissioner director."
SECTION 152. Section 41-16-70 of the 1976 Code is amended to read:
"Section 41-16-70. All new and existing facilities, except dormant facilities, must be tested and inspected in accordance with the following schedule:
1. Every new or altered facility must be inspected and tested before the operating permit is issued.
2. Every existing facility registered with the commissioner director must be inspected within one year after the effective date of the registration, except that the commissioner director may, at his discretion, may extend by regulation the time specified for making inspections.
3. Every facility must be inspected not less frequently than at least annually, except that the commissioner director may adopt regulations providing for inspections of facilities at intervals other than annually.
4. The inspections required by items 1 to 3 of this section must be made only by inspectors or special inspectors. An inspection by a special inspector may be accepted by the commissioner director in lieu of a required inspection by an inspector.
5. A report of every inspection must be filed with the commissioner director by the inspector or special inspector, on a form approved by and containing all information required by the commissioner director, after the inspection has been completed and within the time provided by regulation, but not to exceed thirty days. The report shall must include all information required by the commissioner director to determine whether the owner of the facility has complied with applicable regulations. For the inspection required by item 1, the report shall must indicate whether the facility has been installed in accordance with the detailed plans and specifications approved by the commissioner director and meets the requirements of the applicable regulations.
6. In addition to the inspections required by items 1 to 3, the commissioner director may provide by regulation for additional inspections he considers necessary to enforce the provisions of this chapter."
SECTION 153. Section 41-16-80 of the 1976 Code is amended to read:
"Section 41-16-80. On and after the effective date of regulations relating to alterations, detailed plans of each facility to be altered must be submitted to the commissioner director, together with an application for an alteration permit, on forms to be furnished or approved by the commissioner director. Repairs or replacements necessary for normal maintenance are not alterations and may be made on existing installations with parts equivalent in material, strength, and design to those replaced, and no plans or specifications or application need be filed for the repairs or replacements. However, nothing in this section authorizes the use of any facility contrary to an order issued pursuant to Section 41-16-110."
SECTION 154. Section 41-16-90 of the 1976 Code is amended to read:
"Section 41-16-90. A permit must be issued by the commissioner director before construction on a new installation is begun. The department division shall issue a permit for relocation or installation, as applicable, if the plans and specifications indicate compliance with applicable regulations.
If the plans and specifications indicate a failure of compliance with applicable regulations, the department division shall give notice of necessary changes to the person filing the application. After the changes have been made and approved, the department division shall issue a permit.
Plans must be submitted in triplicate and must be accompanied by an application for the permit on a form to be furnished by the commissioner director. The plans shall must include:
1. sectional plan of car and hoistway.;
2. sectional plan of machine room.;
3. sectional elevation of hoistway and machine room, including the pit, bottom, and top clearance of car, and counterweight.;
4. size and weight of guide rails, and guide rail bracket spacing.;
5. other information which the department division may require."
SECTION 155. Section 41-16-100 of the 1976 Code, as last amended by Act 102 of 1993, is further amended to read:
"Section 41-16-100. Operating certificates must be issued by the commissioner Director of the Department of Labor, Licensing and Regulation to the owner of every facility when the inspection report indicates compliance with the applicable provisions of this chapter. However, no certificates may be issued if the fees required by Section 41-16-140 have not been paid. Certificates must be issued within thirty days after determination by the department division that all deficiencies found upon inspection have been corrected and all fees have been paid. No facility may be operated after the thirty days or after any extension granted by the commissioner director has expired, unless an operating certificate has been issued.
The operating certificate shall must indicate the type of equipment for which it is issued and, in the case of elevators, shall must state whether passenger or freight, and also shall state the contract load and speed for each facility. The certificate must be posted conspicuously in the car of an elevator or on or near a dumbwaiter, escalator, moving walk, handicap lift, or manlift."
SECTION 156. Section 41-16-110 of the 1976 Code, as last amended by Act 102 of 1993, is further amended to read:
"Section 41-16-110. If the commissioner Director of the Department of Labor, Licensing, and Regulation has reason to believe that the continued operation of a facility constitutes an imminent danger which could reasonably could be expected to injure seriously or cause death to members of the public, the commissioner director may apply to the circuit court in the county in which the imminently dangerous condition exists for a temporary order for the purpose of enjoining the imminently dangerous facility. Upon hearing, if considered appropriate by the court, a permanent injunction may be issued to ensure that the imminently dangerous facility be prevented or controlled. Upon the elimination or rectification of the imminently dangerous condition, the temporary or permanent injunction must be vacated."
SECTION 157. Section 41-16-120 of the 1976 Code is amended to read:
"Section 41-16-120. The commissioner director, pursuant to regulation, may grant exceptions and variances from the requirements of regulations promulgated for any facility. Exceptions or variances must be reasonably related to the age of the facility and may be conditioned upon a repair or modification of the facility considered necessary by the commissioner director to assure reasonable safety. However, no exception or variance may be granted except to prevent undue hardship. These facilities are subject to orders issued pursuant to Section 41-16-110."
SECTION 158. Section 41-16-130 of the 1976 Code is amended to read:
"Section 41-16-130. Every owner of a facility subject to regulation by this chapter shall grant access to that facility to the commissioner director and department division personnel administering the provisions of this chapter. Inspections must be permitted at reasonable times, with or without prior notice."
SECTION 159. Section 41-16-140 of the 1976 Code, as last amended by Act 102 of 1993, is further amended to read:
"Section 41-16-140. The commissioner director shall promulgate regulations to charge and collect fees for inspection, permits, and licenses. Fees may be set by regulation not more than once each year. Fees established by the commissioner director must be based upon the costs of administering the provisions of this chapter and shall must give due regard to the time spent by department division personnel in performing duties and to any travel expenses incurred.
In cases where the fees are not paid within sixty days, the Attorney General shall bring an action against the assessed owner or operator. Any amounts collected must be turned over to the State Treasurer for deposit in the general fund of the State. The State may be granted costs and attorneys' fees for such collection actions."
SECTION 160. Section 41-16-150 of the 1976 Code is amended to read:
"Section 41-16-150. Every facility must be maintained by the owner in a safe operating condition and in conformity with the regulations promulgated by the commissioner director."
SECTION 161. Section 41-16-160 of the 1976 Code is amended to read:
"Section 41-16-160. No political subdivision may make or maintain any ordinance, bylaw, or resolution providing for the licensing of special inspectors. Any ordinance, bylaw, or resolution relating to the inspection, construction, installation, alteration, maintenance, or operation of facilities within the limits of the political subdivision, which conflicts with this chapter or with regulations promulgated by the commissioner director, is void. The commissioner, director in his discretion, may accept inspections by local authorities in lieu of inspections required by Section 41-16-70, but only upon a showing by the local authority that applicable laws and regulations will be consistently and literally will be enforced and that inspections will be performed by special inspectors."
SECTION 162. Section 41-16-180 of the 1976 Code, as last amended by Act 102 of 1993, is further amended to read:
"Section 41-16-180. 1. Any owner, operator, or management company who fails to register a facility as required by Section 41-16-60 may be assessed a civil penalty of not more than five hundred dollars for each facility not registered.
2. Any owner, operator, or management company who fails to correct a violation of any safety standard promulgated pursuant to this chapter after being given written notice by the commissioner Director of Labor, Licensing, and Regulation or his designee of the standard and of the time set for its correction may be assessed a civil penalty of not more than one thousand dollars for each such violation.
3. Any owner, operator, or installation contractor who begins alteration, relocation, or installation of a facility before permits are issued pursuant to Sections 41-16-80 or 41-16-90 may be assessed a civil penalty of not more than two times the applicable permit fee.
4. Any owner, operator, or management company who fails to report an accident which results in serious injury to any person other than an employee of the owner or operator may be assessed a civil penalty of not more than one thousand dollars.
5. Any owner, operator, or management company who operates a facility after an order of the commissioner director declaring that facility dormant, temporarily decommissioned, or otherwise ineligible for an operating permit may be assessed a civil penalty of not more than two thousand dollars for each such violation.
6. All amounts collected under this section must be turned over to the State Treasurer for deposit in the general fund of the State.
7. Any owner, operator, management company, or contractor affected or aggrieved by any:
(a) any act of the commissioner director,
(b) any citation issued by the commissioner director,
(c) any penalty assessed by the commissioner director, or
(d) any abatement period set by the commissioner director
may petition the commissioner director within thirty days of notice of the act complained of for administrative review. The provisions of Article II III (Administrative Procedures) of Act 176 of 1977 Chapter 23 of Title 1, as amended, shall govern contested cases of this nature."
SECTION 163. Section 41-17-10 of the 1976 Code is amended to read:
"Section 41-17-10. The Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee or his agents shall:
(a) investigate industrial disputes or strikes or lockouts arising between employer and employees or capital and labor,;
(b) ascertain, as near as may be, the cause or causes of such the industrial disputes or strikes or lockouts,;
(c) make a finding of fact in respect thereto, to them;
(d) endeavor, as far as possible, to remove misunderstandings or differences and to induce both sides to such an industrial dispute or strike or lockout to arrive at an agreement,;
(e) nominate, appoint, or act as arbitrators when so requested by both sides to such a the controversy and;
(f) in general, remove as far as possible the causes for industrial disputes or strikes or lockouts and induce an amicable settlement of them.
Unless the Commissioner director or his agents find it inadvisable so to do the finding of fact of the Commissioner director or his agents as to all such disputes shall must be reported to the Governor as soon as practicable in each case and annually to the General Assembly."
SECTION 164. Section 41-17-20 of the 1976 Code is amended to read:
"Section 41-17-20. When the Commissioner director or his agents shall fail to induce both sides of such an industrial dispute or strike or lockout to arrive at an agreement, the Commissioner he may appoint a committee of three as follows: one from capital, one from labor, and one at large. The Commissioner director shall be is ex officio chairman of such the committee. The duties of the committee shall be are the same as those prescribed for the Commissioner director in Section 41-17-10."
SECTION 165. Section 41-17-40 of the 1976 Code is amended to read:
"Section 41-17-40. The Commissioner of Labor director or his agents may summon and examine in public or in executive session any person concerned in any such a strike or lockout or industrial dispute or any other person within the State and may compel them to testify."
SECTION 166. Section 41-17-50 of the 1976 Code is amended to read:
"Section 41-17-50. The Commissioner of Labor director or his agents may compel the production of books or documents relating to questions in dispute;, inspect property with respect to which there is a dispute with relation to an industrial dispute or strikes or lockout;, examine into working conditions and sanitary conditions;, and at all times have access to any property or premises necessary to any such inspection."
SECTION 167. Section 41-17-60 of the 1976 Code is amended to read:
"Section 41-17-60. The Commissioner of Labor director or his agents can be called into session and into the performance of their duties and functions under this chapter by the Governor."
SECTION 168. Section 41-17-70 of the 1976 Code is amended to read:
"Section 41-17-70. Any person that who hinders or obstructs the Commissioner of Labor director or his agents in the full and free performance of their duties under this chapter shall be is guilty of a misdemeanor for each and every such offense and, upon conviction, in a court of competent jurisdiction shall must be fined not less than twenty-five dollars, nor more than one hundred dollars or sentenced to serve imprisoned not more than thirty days upon the county chain gang."
SECTION 169. Section 41-18-40 (3), (11), and (12) of the 1976 Code, as last amended by Act 144 of 1993, are further amended to read:
"(3) 'Commissioner Director' means the Commissioner of the South Carolina Department of Labor or his designee or representative Director of the Department of Labor, Licensing, and Regulation or his designee.
(11) 'Department Division' means the South Carolina Department of Labor Division of Labor of the Department of Labor, Licensing, and Regulation.
(12) 'Special inspector' means an inspector licensed by the commissioner director and not employed by the department division."
SECTION 170. Section 41-18-50 of the 1976 Code is amended to read:
"Section 41-18-50. No amusement device may be operated in the State without a permit issued by the commissioner director. The permits are not transferable, and if any permit holder voluntarily discontinues operation of the amusement device, all rights secured under the permit are terminated."
SECTION 171. Section 41-18-60 of the 1976 Code, as last amended by Act 144 of 1993, is further amended to read:
"Section 41-18-60. 1. Before commencement of the operation of a permanent or temporary device, the owner or lessee shall make written application to the commissioner director for a permit to operate. The permit is valid for a period of up to one year expiring on December thirty-first of the year issued.
2. No temporary device may be used at any time or location unless prior notice of intent to use same it has been given to the commissioner director. Notice of planned schedules shall must:
(a) be in writing,;
(b) identify the temporary device,;
(c) state the intended dates and locations of use,;
(d) be mailed to the commissioner director at least seven days before the first intended date of use;.
However, except the commissioner director may, in his discretion, may waive these requirements.
3. A permit to operate must be issued to the owner or lessee of an amusement device when:
(a) written application has been made to the commissioner director;
(b) the amusement device has passed all required inspections;
(c) the liability insurance required by Section 41-18-90 has been met in the amount prescribed.
4. The commissioner director may revoke any permit issued pursuant to this chapter if it is determined that an amusement device is:
(a) being operated without the inspections required by Sections 41-18-70 and 41-18-80; or
(b) being operated without the insurance required by Section 41-18-90; or
(c) being operated with a mechanical, electrical, structural, design, or other defect which presents an excessive risk of serious injury to passengers, bystanders, operators, or attendants; or
(d) being operated without the required documentation or paperwork; or
(e) being operated in a manner contrary to the operating fact sheets.
5. Any other violation of the provisions of this chapter may result in a revocation, if written notice of noncompliance is served upon the owner specifying any violation of the provisions of this chapter and directing the owner to correct the violations within the period specified by the commissioner director. In the event If the owner and the department division fail to agree that the violations referred to herein have in fact been corrected, then the department division shall give notice of and provide a hearing for the owner to determine whether compliance has in fact been met. The provisions of Article II III (Administrative Procedures) of Act 176 of 1977 Chapter 23 of Title 1, as amended, shall govern contested cases of this nature and any other contested cases arising under the provisions of this chapter.
6. Nothing in this chapter prevents an owner whose permit to operate an amusement device has been revoked pursuant to this section from reapplying for a permit in accordance with this chapter, except as otherwise specifically provided in this chapter. Upon application to have a revoked permit reinstated under this section, the department division shall inspect the amusement ride in question as promptly as practicable, but in no case more than seventy-two hours after the submission of the application."
SECTION 172. Section 41-18-70 of the 1976 Code, as last amended by Act 144 of 1993, is further amended to read:
"Section 41-18-70. Before a permit may be issued as provided in Sections 41-18-50 and 41-18-60, an inspection of the amusement device must be made in compliance with the procedures set by the commissioner director. The inspection must have been conducted within one month prior to before the permit application, unless the period is extended by operation of subsection 5 of Section 41-18-80(5)."
SECTION 173. Section 41-18-80 of the 1976 Code, as last amended by Act 144 of 1993, is further amended to read:
"Section 41-18-80. (1) In the case of a permanent device, the amusement device must be inspected by the commissioner director or special inspector. Thereafter, As a requirement for the issuance of each subsequent permit, the amusement device must be inspected at least annually by the commissioner director or by a special inspector. The inspection shall at minimum must comply with the requirements of the commissioner director. An affidavit of the annual inspection must be filed with the commissioner director.
(2) In the case of a temporary device, before first operation in the State each year, the amusement device must be inspected by the commissioner director or special inspector for the permit to be issued. Thereafter After that time, the amusement device must be inspected at least annually by the commissioner director or a special inspector. The inspection must at minimum must comply with the requirements of the commissioner director. An affidavit of the annual inspection must be filed with the commissioner director.
(3) In the case of an amusement device which is substantially rebuilt or substantially modified so as to change the structure, mechanism, or capacity of the device, the owner or lessee shall give written notice to the commissioner director who shall cause the device to be inspected prior before to the time in which it is put into operation and who shall cause any current permit to be updated so as to include any modifications made to the device.
(4) In the event If an operator is unable to secure an inspection within one year from the date of the previous inspection, the previous inspection is considered valid for purposes of this chapter for a period of thirty additional days, if the operator made an inspection request to any of those individuals qualified to make the inspection at least sixty days prior to before the permit expiration date.
(5) Upon proper presentation of credentials, the commissioner director or his inspectors may enter unannounced and inspect amusement devices, at reasonable times and in a reasonable manner and have the right to question any owner, manager, or agent of the owner, to inspect, investigate, photograph, and sample all pertinent places, areas, and devices, and to examine and reproduce all pertinent documents and records for the purpose of enforcing the provisions of this chapter. No fee may be charged for these unannounced inspections.
(6) No amusement device which fails to pass an inspection may be operated for public use until it has passed a subsequent inspection.
(7) Each sponsor of a fair or carnival and the owner of the land or their designees, upon which the fair or carnival is located, shall make a visual inspection of each amusement device at least once each week during the period the fair or carnival is operating. The commissioner director shall provide a checklist for this inspection. If an unsafe amusement device or condition is discovered, it must be reported immediately reported to the commissioner director.
(8) A special inspector shall must have the following qualifications:
(a)(1) at least five years' experience in amusement device maintenance and safety, and completion of approved courses in materials inspection and testing and in fasteners, or in the alternative,;
(2) a four-year college degree in engineering or architecture with a minimum of twelve semester hours of course work in the area of mechanics and strength of materials.
(b) Evidence of successful completion of an approved Rides Safety Inspection Course within the previous two calendar years."
SECTION 174. Section 41-18-100 of the 1976 Code, as last amended by Act 144 of 1993, is further amended to read:
"Section 41-18-100. 1. The owner or amusement ride operator may deny any person entrance to the amusement ride based on the person's size, weight, or physical condition if the owner or amusement ride operator believes the entry may jeopardize the safety of the person desiring entry, riders, or other persons. Denial may must not be based on color, race, sex, religion, or national origin.
2. The owner or lessee of any amusement device which, during the course of its operation, is involved in an accident which results in a serious injury shall report the injury to the owner's or lessee's insurer.
3. The owner or lessee of any amusement device which, during the course of its operation, is involved in an accident which results in a serious injury shall report the injury to the commissioner director immediately and in no case later than the close of business of the commissioner's director's next business day. Any owner or lessee who becomes aware at a later date that a serious injury had occurred shall report it immediately and in no case later than the end of the next business day.
4. When a catastrophic accident occurs involving the operation of an amusement device, the owner or lessee shall immediately shall shut down the device from further use. The device may not resume operation until the safety coordinator determines that the catastrophic accident was not caused by a mechanical or structural defect in the amusement device.
5. If the safety coordinator determines that a catastrophic accident was caused by a mechanical failure or structural defect, the device must remain shut down until repairs are completed and the device is considered operational by a licensed architect, professional engineer, qualified inspector of an insurance underwriter, or other qualified inspector, each of whom must be approved by the commissioner director. An affidavit of the inspection and correction of defect must be filed with the commissioner director."
SECTION 175. Section 41-18-110 of the 1976 Code, as last amended by Act 144 of 1993, is further amended to read:
"Section 41-18-110. Upon request, the commissioner director shall furnish to all owners, lessees, and operators of amusement devices notice of all rights and obligations under the provisions of this chapter upon receipt of permit applications."
SECTION 176. Section 41-18-120 of the 1976 Code is amended to read:
"Section 41-18-120. The commissioner director may promulgate regulations consistent with this chapter guarding against personal injuries in the assembly, disassembly, and use of amusement devices at carnivals, fairs, and amusement parks to persons employed at or to persons attending the carnivals, fairs, and amusement parks and regarding enforcement of any other provision of this chapter. The commissioner director shall promulgate regulations to charge and collect reasonable fees for permits and for inspections and any other activity under the provisions of this chapter as considered necessary by the commissioner director for the proper enforcement of the provisions of this chapter. Fees may be set by regulation not more than once each year."
SECTION 177. Section 41-18-130 of the 1976 Code is amended to read:
"Section 41-18-130. The commissioner director is charged with the affirmative duty of administering and enforcing the provisions of this chapter."
SECTION 178. Section 41-18-150 of the 1976 Code, as last amended by Act 144 of 1993, is further amended to read:
"Section 41-18-150. 1. Any person who knowingly and wilfully operates an amusement device without:
(a) the permit required by Sections 41-18-50 and 41-18-60; or
(b) the inspections required by Sections 41-18-70 and 41-18-80; or
(c) the insurance required by Section 41-18-90; or
(d) complying with any other provision of this chapter or regulation promulgated hereunder;
is subject to a civil penalty not to exceed two thousand dollars per device for each day such noncompliance under any of these items (a), (b), (c), or (d) of this subsection 1 continues.
2. Any person who operates an amusement device without:
(a) the permit required by Sections 41-18-50 and 41-18-60; or
(b) the inspections required by Sections 41-18-70 and 41-18-80; or
(c) the insurance required by Section 41-18-90; or
(d) complying with any other provision of this chapter or regulation promulgated hereunder;
is subject to a civil penalty not to exceed two thousand dollars for each day such noncompliance under any of these items (a), (b), (c), or (d) of this subsection 2 continues.
3. The commissioner director may assess the penalties under this section and, in assessing penalties under subsection 1 of this section, shall give due consideration to the appropriateness of the penalty with respect to the size of the owner's or lessee's business, the good faith of the owner or lessee, and his history of previous violation.
4. Revenue derived under this chapter must be remitted to the State Treasurer and deposited by him in the general fund."
SECTION 179. Section 41-21-20 of the 1976 Code, as last amended by Act 248 of 1991, is further amended to read:
"Section 41-21-20. There is hereby created within the South Carolina Department Division of Labor, the Division Subdivision of Apprenticeship to administer the South Carolina Voluntary Apprenticeship Act. The Division Subdivision shall must be governed by an Apprenticeship Council composed of three employers and three employees appointed by the Governor upon the advice and consent of the Senate and, in addition, the Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee, who shall serve ex officio. The Commissioner of Labor director shall serve as chairman of the council. The Director of the State Commission for Technical Education and the State Director of Vocational Education shall serve as ex officio nonvoting members of the Council. The terms of office of the members of the Apprenticeship Council first appointed by the Governor shall expire as designated by the Governor at the time of making the appointment; one representative each of employers and employees shall must be appointed for one year; one representative each of employers and employees shall must be appointed for two years; and one representative each of employers and employees shall must be appointed for three years. Thereafter After that time, each member shall must be appointed for a term of three years and until his successor is appointed and qualifies. Vacancies shall must be filed for the unexpired term in the manner of original appointment. Each member of the council, not otherwise compensated by public funds, shall receive per diem, subsistence, and mileage as provided by law for state boards, committees, and commissions for his services when attending to official duties or assignments when funds provided by federal grants are available for this purpose."
SECTION 180. Section 41-21-30 of the 1976 Code is amended to read:
"Section 41-21-30. The Apprenticeship Council shall meet at the call of the Commissioner of Labor Director of the Department of Labor, Licensing, and Regulation or his designee and shall formulate policies for the effective administration of this chapter. The Apprenticeship Council shall establish standards for apprentice agreements, shall issue such rules and regulations as may be necessary to carry out the intent and purpose of this chapter, and shall perform such other functions as the Commissioner director may direct."
SECTION 181. Section 41-21-40 of the 1976 Code is amended to read:
"Section 41-21-40. The Commissioner of Labor director, with the advice and guidance of the Apprenticeship Council, is authorized to:
(1) administer the provisions of this chapter;
(2) in cooperation with the Apprenticeship Council and local apprenticeship committees, to set up conditions and training standards for apprentice agreements, which conditions or standards shall must be in no case lower than those prescribed by this chapter;. The State Apprenticeship Council shall approve any apprentice agreement which meets the standards established under this chapter;
(3) to terminate or cancel any apprentice agreement in accordance with the provisions of such the agreement;
(4) to keep a record of apprentice agreements and their disposition;
(5) to issue certificates of completion of apprenticeship; and
(6) to perform such other duties as are necessary to carry out the intent of this chapter, including other on-job training necessary for emergency and critical civilian production; provided, that. However, the administration and supervision of related and supplemental instruction for apprentices, coordination of instruction with job experiences, and the selection and training of teachers and coordinators for such instruction shall be are the responsibility of the appropriate educational agencies."
SECTION 182. Section 41-21-70 of the 1976 Code is amended to read:
"Section 41-21-70. Every apprentice agreement entered into under this chapter shall must contain:
(1) the names of the contracting parties;
(2) the date of birth of the apprentice;
(3) a statement of the trade, craft, or business which the apprentice is to be taught, and the time at which the apprenticeship will begin and end;
(4) a statement showing the number of hours to be spent by the apprentice in work and the number of hours to be spent in related and supplemental instruction, which instruction shall must be not less than one hundred forty-four hours per a year; provided, that. However, in no case shall may the combined weekly hours of work and of required related and supplemental instruction of the apprentice exceed the maximum number of hours of work prescribed by law for a person of the age and sex of the apprentice;
(5) a statement setting forth a schedule of the processes in the trade or industry division in which the apprentice is to be taught and the approximate time to be spent at each process;
(6) a statement of the graduated scale of wages to be paid the apprentice and whether the required school time shall must be compensated; provided,. However, the apprentice shall receive compensation which shall must not be less than the minimum wage prescribed by the Federal Fair Labor Standards Act;
(7) a statement providing for a period of probation of not more than five hundred hours of employment and instruction extending over not more than four months, during which time the apprentice agreement shall must be terminated by the Commissioner director at the request in writing of either party, and providing that after such the probationary period the apprenticeship agreement may be terminated by mutual agreement of all parties thereto, to it or canceled for good and sufficient reason. The council, at the request of an apprentice committee, may lengthen the period of probation;
(8) a provision that all controversies or differences concerning the apprentice agreement which cannot be adjusted locally shall must be submitted to the council for determination;
(9) a provision that an employer who is unable to fill his obligation under the apprentice agreement may, with the approval of the Commissioner director, may transfer such the contract to any other employer; provided, that. However, the apprentice consents shall consent and that such the other employer agrees shall agree to assume the obligations of the apprentice agreement;
(10) Such the additional terms and conditions as may be prescribed or approved by the Commissioner director, not inconsistent with the provisions of this chapter."
SECTION 183. Section 41-21-80 of the 1976 Code is amended to read:
"Section 41-21-80. No apprentice agreement under this chapter shall be is effective until approved by the Commissioner director. Every apprentice agreement shall must be signed by the employer, or by an association of employers or an organization of employees and by the apprentice and, if the apprentice is a minor, by the minor's father; provided, that. However, if the father be is dead or legally incapable of giving consent, then it must be signed by the guardian of the minor. Where a minor enters into an apprentice agreement under this chapter for a period of training extending into his majority, the apprentice agreement shall is likewise be binding for such a the period as may be covered during the apprentice's majority."
SECTION 184. Section 41-21-90 of the 1976 Code is amended to read:
"Section 41-21-90. For the purpose of providing greater diversity of training or continuity of employment, any apprentice agreement made under this chapter may, in the discretion of the Apprenticeship Council, be signed by an association of employers or organization of employees instead of by an individual employer. In such case, the apprentice agreement shall expressly provide that the association of employers or organization of employees does not assume the obligation of an employer but agrees to use its best endeavors to procure employment and training for such apprentice with one or more employers who will accept full responsibility, as herein provided, for all the terms and conditions of employment and training set forth in the agreement between the apprentice and employer association or employee organization during the period of each such employment. The apprentice agreement in such a case shall also expressly provide for the transfer of the apprentice, subject to the approval of the Commissioner director, to such employer who shall sign a written agreement with the apprentice and, if the apprentice is a minor, with his parent or guardian, contracting to employ the apprentice for the whole or a definite part of the total period of apprenticeship under the terms and conditions of employment and training set forth in the agreement entered into between the apprentice and employer association or employee organization."
SECTION 185. Section 41-21-100 of the 1976 Code is amended to read:
"Section 41-21-100. Nothing in this chapter or in any apprentice agreement approved under this chapter shall operate to invalidate invalidates any apprenticeship provision in any collective agreement between employers and employees, setting up higher apprenticeship standards; provided, that. However, none of the terms or provisions of this chapter shall apply to any person or craft unless, until and only so long as such the person or craft voluntarily elects that the terms and provisions of this chapter shall apply. Provided, further, No person whether presently employed or seeking employment shall, in any manner, may be forced or coerced into entering into any apprenticeship training program provided for under this chapter. Any person violating the provisions of this section shall be is guilty of a misdemeanor and, upon conviction, shall be subject to a fine of must be fined one hundred dollars. Each day's violation shall constitute constitutes a separate offense. Any person or craft terminating an apprenticeship agreement shall notify the Commissioner of Labor director."
SECTION 186. Section 41-25-110 of the 1976 Code is amended to read:
"Section 41-25-110. The provisions of this chapter may be enforced by any state agency having jurisdiction and authority to enforce this chapter, including, but not limited to:
(a) Secretary of State;
(b) Department Division of Labor of the Department of Labor, Licensing, and Regulation;
(c) Attorney General;
(d) Department of Consumer Affairs;
(e) South Carolina State Law Enforcement Division;
(f) Circuit solicitors;
(g) Local law enforcement agencies;
(h) Any person who has been damaged by or has knowledge of any violation of the provisions of this chapter."
SECTION 187. The first paragraph of Section 41-43-40 of the 1976 Code, as last amended by Act 248 of 1991, is further amended to read:
"The Governor shall appoint, upon the advice and consent of the Senate, one director from each congressional district and one from the State at large, who serves as chairman. Directors must have experience in the fields of business, commerce, finance, banking, real estate, or foreign trade. At least two directors must have direct commercial lending experience. The Governor and the Chairman Secretary of the State Development Board Commerce shall serve ex officio and may designate persons to represent them at meetings of the authority."
SECTION 188. The last paragraph of Section 41-43-190(A) of the 1976 Code is amended to read:
"In developing and implementing the programs described in this section, the authority may consider the advice and counsel of the Governor's Export Advisory Committee, created by executive order as an adjunct to the Division of State Development of the Department of Commerce Board or any a successor thereto to it, and allocate available resources in a manner as will ensure that priority consideration is given to the needs of small and medium size businesses."
SECTION 189. Section 41-44-90 of the 1976 Code, as last amended by Act 505 of 1990, is further amended to read:
"Section 41-44-90. To receive the credit provided by this chapter, a taxpayer shall:
(1) claim the credit on the taxpayer's annual state income or premium tax return in the manner prescribed by the appropriate commission department; and
(2) file with the appropriate commission department and with the taxpayer's annual state income or premium tax return a copy of the form issued by the corporation as to the qualified investment by the taxpayer, which includes an undertaking by the taxpayer to report to the appropriate commission department any redemption of the qualified investment within the meaning of Section 41-44-80."
SECTION 190. Section 42-5-60 of the 1976 Code is amended to read:
"Section 42-5-60. Every policy for the insurance of the compensation provided in this title or against liability therefor shall be deemed to be made is subject to provisions of this title. No corporation, association, or organization shall may enter into any such a policy of insurance unless its form shall have has been approved by the Chief Insurance Commissioner of South Carolina the Department of Insurance or his designee."
SECTION 191. Section 43-1-115 of the 1976 Code, as added by Act 101 of 1993, is amended to read:
"Section 43-1-115. The State Department shall conduct, at least once every two years, a detailed performance audit, which must include, but is not limited to, the child protective services and foster care programs of every local county office. The department shall use a sample size that will ensure the results of the audit to be within a ninety percent confidence level. The department shall prepare a full and detailed report of its findings and include any proposals to rectify any deficiencies noted. The State Department shall submit, within ninety calendar days of the completion of the county performance audit review, a copy of its final report to the Governor, Lieutenant Governor, members of the respective county legislative delegations, the Joint Legislative Committee on Children and Families, and the County Advisory Board of Social Services. The final and all draft audit reports are public information and upon request must be provided to any a member of the public within the time period set forth by the Freedom of Information Act. As public information, the State Department also shall also submit two copies of the final report to the State Library and one copy of the final report to any a public library within the county reviewed. The failure of the State Department to conduct the required biennial performance audits of any a county office is considered nonfeasance in office by the State Commission director of the department, is cause for the commissioner's director's removal, and subjects the commissioner director to the penalties for nonfeasance."
SECTION 192. Section 43-5-150 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 43-5-150. In the event an application is denied or the amount or terms of a grant or of any withdrawal or modification thereof be deemed inadequate or unjust by the applicant or recipient, the applicant or recipient or anyone acting in his behalf may demand a review of his case before the department by filing his written request for such review with the county department not more than sixty days after notice of its action shall have been received. The county department shall, within ten days, certify its records and data on the case and such additional information as it deems considers relevant to the department. The department shall promptly grant to the applicant or recipient an opportunity for a fair hearing upon the questions raised by the applicant or recipient. At this hearing any party in interest may appear and present any relevant facts. The department shall produce such further evidence as it may deem consider necessary and shall certify its findings and decision on the case back to the county department concerned. Appeals from the decision of the department may be made to an administrative hearing examiner administrative law judge pursuant to the Administrative Procedures Act."
SECTION 193. Section 43-7-410 (B) and (C) of the 1976 Code are amended to read:
"(B) "Commission" means the State Health and Human Services Finance Commission. 'Department' means the South Carolina Department of Health and Human Services, unless the context clearly indicates otherwise.
(C) 'Medicaid' means the medical assistance program authorized by Title XIX of the Social Security Act and administered by the State Health and Human Services Finance Commission South Carolina Department of Health and Human Services."
SECTION 194. Section 43-7-420 of the 1976 Code is amended to read:
"Section 43-7-420. (A) Every The applicant or recipient, only to the extent of the amount of the medical assistance paid by Medicaid, shall be is deemed considered to have assigned his rights to recover such amounts so paid by Medicaid from any a third party or private insurer to the State Health and Human Services Finance Commission department. This assignment shall does not include rights to Medicare benefits. The applicant or recipient shall cooperate fully with the State Health and Human Services Finance Commission department in its efforts to enforce its assignment rights.
(B) An The applicant's and recipient's determination of, and continued eligibility for, medical assistance under Medicaid is contingent upon his cooperation with the Commission department in its efforts to enforce its assignment rights. Cooperation includes, but is not limited to, reimbursing the Commission department from proceeds or payments received by the applicant or recipient from any a third party or private insurer.
(C) Every The applicant or recipient is considered to have authorized all persons, including insurance companies and providers of medical care, to release to the Commission department all information needed to enforce the assignment rights of the Commission department."
SECTION 195. Section 43-7-430 of the 1976 Code is amended to read:
"Section 43-7-430. (A) The State Health and Human Services Finance Commission department shall be is automatically subrogated, only to the extent of the amount of medical assistance paid by Medicaid, to the rights an the applicant or recipient may have to recover such amounts so paid by Medicaid from any a third party or private insurer. The applicant or recipient shall cooperate fully with the State Health and Human Services Finance Commission department and shall do nothing after medical assistance is provided to prejudice the subrogation rights of the State Health and Human Services Finance Commission department.
(B) An The applicant's and recipient's determination of, and continued eligibility for, medical assistance under Medicaid is contingent upon his cooperation with the Commission department in its efforts to enforce its subrogation rights. Cooperation includes, but is not limited to, reimbursing the Commission department from proceeds or payments received by the recipient from any a third party or private insurer.
(C) Every The applicant or recipient is considered to have authorized all persons, including insurance companies and providers of medical care, to release to the Commission department all information needed to enforce the subrogation rights of the Commission department."
SECTION 196. Section 43-7-440 of the 1976 Code, as last amended by Act 481 of 1994, is further amended to read:
"Section 43-7-440. (A) Commission The department, to enforce its assignment or subrogation rights, may take any one, or any combination of, the following actions:
(1) intervene or join in an action or proceeding brought by the applicant or recipient against any a third party, or private insurer, in state or federal court.;
(2) commence and prosecute legal proceedings against any a third party or private insurer who may be liable to any applicant or recipient in state or federal court, either alone or in conjunction with the applicant or recipient, his guardian, personal representative of his estate, dependents, or survivors;
(3) commence and prosecute legal proceedings against any a third party or private insurer who may be liable to an applicant or recipient, or his guardian, personal representative of his estate, dependents, or survivors;
(4) commence and prosecute legal proceedings against any applicant or recipient;
(5) settle and compromise any an amount due to the State Health and Human Services Finance Commission department under its assignment and subrogation rights. Provided, further, any A representative or an attorney retained by an applicant or recipient shall is not be considered liable to State Health and Human Services Finance Commission the department for improper settlement, compromise, or disbursement of funds unless he has written notice of State Health and Human Services Finance Commission's the department's assignment and subrogation rights prior to before disbursement of funds;
(6) reduce any amount due to the State Health and Human Services Finance Commission department by twenty-five percent if the applicant or recipient has retained an attorney to pursue the applicant's or recipient's claim against a third party or private insurer, that amount to represent the State Health and Human Services Finance Commission's department's share of attorney's fees paid by the applicant or recipient. Additionally, the State Health and Human Services Finance Commission department may, in its discretion, may share in other costs of litigation by reducing the amount due it by a percentage of those costs, the percentage calculated by dividing the amount due the State Health and Human Services Finance Commission department by the total settlement received from the third party or private insurer. Provided, further, any A representative or an attorney retained by an the applicant or recipient shall is not be considered liable to State Health and Human Services Finance Commission the department for improper settlement, compromise, or disbursement of funds unless he has written notice by certified mail of State Health and Human Services Finance Commission's the department's assignment and subrogation rights prior to before disbursement of funds.
(B) Providers and practitioners who participate in the Medicaid program shall cooperate with the Commission department in the identification of third parties whom they have reason to believe may be liable to pay all or part of the medical costs of the injury, disease, or disability of an the applicant or recipient.
(C) Any provision in the contract of a private insurer issued or renewed after June 11, 1986, which denies or reduces benefits because of the eligibility of the insured to receive assistance under Medicaid, is null and void.
In enrolling a person or in making payments for benefits to a person or on behalf of a person, no private insurer may take into account that the person is eligible for or is provided medical assistance under a State Plan for Medical Assistance pursuant to Title XIX of the Social Security Act.
(D) The assignment and subrogation rights of the Commission department are superior to any right of reimbursement, subrogation, or indemnity of any a third party or recipient. Provided, further, any A representative or an attorney retained by an the applicant or recipient shall is not be considered liable to State Health and Human Services Finance Commission the department for improper settlement, compromise, or disbursement of funds unless he has written notice of State Health and Human Services Finance Commission's the department's assignment and subrogation rights prior to before disbursement of funds.
In a case where a third party has a legal liability to make payments for medical assistance to or on behalf of a person, to the extent that payment has been made under a State Plan for Medical Assistance pursuant to Title XIX of the Social Security Act for health care items or services furnished to the person, the State is considered to have acquired the rights of the person to payment by any other party for the health care items or services."
SECTION 197. Section 43-21-130 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 43-21-130. (A) There is created the Long-Term Care Human Services Coordinating Council (council) composed of the following voting members:
(1) the Governor or his designee;
(2) the Director of the Department of Social Services;
(3) the Director of the Department of Health and Environmental Control;
(4) the Director of the Department of Mental Health;
(5) the Director of the Department of Disabilities and Special Needs;
(6) the Director of the Division on Aging;
(7) the Director of the Department of Health and Human Services;
(8) the Chairman of the Joint Legislative Health Care Planning and Oversight Committee, or his designee;
(9) the Chairman of the Joint Legislative Committee on Aging, or his designee;
(10) one representative of each of the following groups appointed by the Governor annually:
(a) long-term care providers;
(b) long-term care consumers;
(c) persons in the insurance industry developing or marketing a long-term care product.
(B) Each director serving as a council member may authorize in writing a designee to vote on his behalf at two meetings a year. Members appointed by the Governor to represent private groups serve without compensation.
(C) The council shall meet at least quarterly, provide for its own officers, and make an annual report to the General Assembly before January second each year. This report must include new council recommendations. (A) The General Assembly finds that the operation of health and human services may be enhanced by closer working relationships among agencies at the state and local level. The General Assembly finds that coordination at both levels provides opportunities to serve the citizens of South Carolina better through (1) continued expansion of services integration and (2) stronger communication among agencies delivering services.
In order to assist in, recommend, develop policy for, and supervise the expenditure of funds for the continuation of service integration in South Carolina, there is created a Human Services Coordinating Council, hereinafter, entitled the council. The council shall consist of:
(1) the chairperson of the boards of the following agencies: Division on Aging, Department of Alcohol and Other Drug Abuse Services, Commission for the Blind, Division of Foster Care, Department of Education, Department of Health and Environmental Control, Department of Health and Human Services, Division of Veterans' Affairs, John De La Howe School, Department of Mental Health, Department of Disabilities and Special Needs, School for the Deaf and the Blind, Department of Social Services, Department of Vocational Rehabilitation, Guardian ad Litem Program, Division of Continuum of Care, Educational Television, Wil Lou Gray Opportunity School, Probation, Parole and Pardon Services, and the State Housing Finance and Development Authority.;
These chairpersons shall receive the usual mileage, subsistence, and per diem provided by law for members of committees, boards, and commissions. Mileage, subsistence, and per diem must be paid from the approved accounts of their respective boards or commissions;
(2) the Director or Chief Executive Officer of each of the following: Division on Aging, Department of Alcohol and Other Drug Abuse Services, Commission for the Blind, Division of Foster Care, Department of Education, Department of Health and Environmental Control, Department of Health and Human Services, Department of Juvenile Justice, Division of Veterans' Affairs, John De La Howe School, Department of Mental Health, Department of Disabilities and Special Needs, School for the Deaf and the Blind, Department of Social Services, Department of Vocational Rehabilitation, Guardian ad Litem Program, Division of Continuum of Care, Educational Television, Wil Lou Gray Opportunity School, Department of Corrections, Probation, Parole and Pardon Services, and the State Housing Finance and Development Authority;
(3) the Governor or his designee;
(4) other such members as the council shall deem appropriate.
(B) The council shall:
(1) select a board chairperson, director or chief executive officer on an annual basis to serve as the council chairperson;
(2) meet regularly to provide an opportunity for collaboration and cooperation among member agencies.
(C) The council shall have as its goals:
(1) identify and address priority health and human needs and promote the availability of responsive resources;
(2) promote cost-effective, efficient approaches for the delivery of health and human services which include prevention, education, reduction of dependency, promotion of self-sufficiency, and delivery of services in the least restrictive, most appropriate community-based and institutional settings;
(3) provide coordination between the council members and the Department of Health and Human Services in the development of the comprehensive State Health and Human Services Plan;
(4) in cooperation with the Department of Health and Human Services, coordinate and oversee efforts to integrate services information among state agencies and between state and local agencies;
(5) review and monitor service integration efforts begun by the Human Services Integration Projects, and including:
(a) developing standards for case management activities and coordinating with local entities on service integration efforts, and
(b) receiving requests for funding of projects designed to further integrate services, including review and approval of such projects.
(D) Member agencies and departments of the council shall collect and provide client information, including Social Security number, for the Client Masterfile System, and for development and use of a uniform client application database for statistical purposes and for improving human services delivery systems for South Carolinians. For purposes of this subsection, the State, rather than an individual agency, will be the owner of the data. All individual client information submitted by participating agencies or departments will be regarded as confidential; the information collected may not be released, under any circumstances, to entities or individuals outside the Client Masterfile System, State Data Oversight Council, or client application database unless release is made of aggregate statistical information so that no individual client may be identified. No data submitted may be released by the Client Masterfile System except in a format approved by the council. For the purposes of this subsection only, all state laws, regulations, or any rule of any state agency, department, board, or commission having the effect or force of law that prohibits or is inconsistent with any provision of this subsection is hereby declared inapplicable to this subsection.
Each member agency or department of the council shall be required to take all steps reasonably necessary to effectuate the waiver of federal rules, regulations, or statutes or the elimination of other factors that interfere with collection or use of data by the Client Masterfile System or client application database. Those steps shall include, but not be limited to, the seeking of federal legislation, the negotiation of agreements between the council or State and any federal agency or board, the application for the waiver of any federal rule, regulation or statute, and the seeking of clients' permission to share data.
(E) Effective July 1, 1995, the Human Services Coordinating Council shall assume the duties and responsibilities of the Aging Coordinating Council and the Long Term Care Council as specified in Sections 43-21-120 through 43-21-140. The council shall establish a long term care standing committee and include on the committee a representative of the long term care industry, a representative of the insurance industry, and a representative of the general public."
SECTION 198. Section 43-35-310 (A)(2) of the 1976 Code, as added by Act 110 of 1993, is amended to read:
"(2) these members who shall serve ex officio:
(a) Attorney General or a designee;
(b) Board of Long Term Health Care Administrators, Executive Director, or a designee;
(c) State Board of Nursing for South Carolina, Executive Director, or a designee;
(d) Commission Division on Aging in the Office of the Governor, Executive Director, or a designee;
(e) Criminal Justice Academy, Executive Department of Public Safety Director, or a designee;
(f) South Carolina Department of Health and Environmental Control, Commissioner, or a designee;
(g) State Department of Mental Health, Commissioner Director, or a designee;
(h) South Carolina Department of Mental Retardation Disabilities and Special Needs, Commissioner Director, or a designee;
(i) Adult Protective Services Program, Director, or a designee;
(j) Department of Health and Human Services Finance Commission, Executive Director, or a designee;
(k) Joint Legislative Committee on Aging, Chair, or a designee;
(l) Police Chiefs' Association, President, or a designee;
(m) Prosecution Coordination Commission, Executive Director, or a designee;
(n) South Carolina Protection and Advocacy System for the Handicapped, Inc., Executive Director, or a designee;
(o) South Carolina Sheriff's Association, Executive Director, or a designee;
(p) South Carolina State Law Enforcement Division, Chief, or a designee;
(q) Long Term Care Ombudsman or a designee;
(r) South Carolina Medical Association, Executive Director, or a designee;
(s) South Carolina Health Care Association, Executive Director, or a designee;
(t) South Carolina Home Care Association, Executive Director, or a designee."
SECTION 199. Section 44-1-50 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 44-1-50. The board may conduct such hearings as may be required by law, as considered necessary by the board, and as necessary to hear appeals from decisions of administrative law judges pursuant to Chapter 23 of Title 1. The board does not have the authority to hear appeals from decisions of the Coastal Zone Management Appellate Panel or the Mining Council. Such appeals Appeals from the decisions of the Coastal Zone Management Appellate Council or the Mining Council shall must be conducted pursuant to the provisions in Chapter Chapters 20 and 30 39 of Title 48.
The board shall provide for the administrative organization of the department and shall consolidate and merge existing duties, functions, and officers of the former agencies as may be necessary for economic and efficient administration. Provided, However, that the board may appoint such advisory boards as it considers necessary to carry out the functions of Sections 44-1-10 to 44-1-70, and there shall must be provided a compensation for their services as provided by the law for members of boards and commissions."
SECTION 200. The introductory portion of Section 44-2-75(C) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(C) The Department of Insurance may disapprove an application for the formation of an insurance pool and may suspend or withdraw approval whenever he the Department of Insurance finds that the applicant or pool:"
SECTION 201. Section 44-6-5(4) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(4) 'Market basket index' means the index used by the federal government on January 1, 1986, to measure the inflation in hospital input prices for Medicare reimbursement. If that measure ceases to be calculated in the same manner, the market basket index must be developed and regulations must be promulgated by the commission department using substantially the same methodology as the federal market basket uses on January 1, 1986. Prior to Before submitting the regulations concerning the index to the General Assembly for approval pursuant to the Administrative Procedures Act, the department shall submit them to the Health Care Planning and Oversight Committee for review."
SECTION 202. Section 44-6-140(A)(2) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(2) payment on a timely basis to the hospital by the commission department or patient, or both, of the maximum allowable payment amount determined by the commission department; and"
SECTION 203. Section 44-6-146(A) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(A) Every fiscal year the State Treasurer shall withhold from the portion of the Local Government Fund allotted to the counties a sum equal to fifty cents per capita based on the population of the several counties as shown by the latest official census of the United States. The money withheld by the State Treasurer must be placed to the credit of the commission department and used to provide Title XIX (Medicaid) services."
SECTION 204. Section 44-6-170(A)(14) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(14) the executive director or his designee of the State Department of Health and Human Services Finance Commission;"
SECTION 205. Section 44-6-520 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 44-6-520. No provision of this article limits the right of an owner to sell, lease, or mortgage any a nursing home subject to receivership under this article upon the owner's presenting satisfactory evidence to the court that:
(1) compliance with the applicable requirements of the Department of Health and Human Services has been achieved; or
(2) the purchaser lessee, or mortgagor has assumed the responsibility for achieving such compliance and has filed an acceptable plan of correction with the commission Department of Health and Human Services. Upon sale of the nursing home, the receivership must be terminated."
SECTION 206. Section 44-6-540 of the 1976 Code, as added by Act 449 of 1990, is amended to read:
"Section 44-6-540. The commission Department of Health and Human Services is authorized to promulgate regulations, pursuant to the Administrative Procedures Act, to administer this article."
SECTION 207. Section 44-6-720(B)(4)(b)(iv) and (5) of the 1976 Code, as added by Section 74, Part II, Act 164 of 1993, are amended to read:
"(iv) other deductions provided in regulations of the State Department of Health and Human Services Finance Commission;
(5) upon the death of the beneficiary, a remainder interest in the corpus of the trust passes to the State Department of Health and Human Services Finance Commission. The commission department shall remit the state share of the trust to the general fund; and"
SECTION 208. Section 44-6-730 of the 1976 Code, as added by Section 74, Part II, Act 164 of 1993, is amended to read:
"Section 44-6-730. The State Department of Health and Human Services Finance Commission shall promulgate regulations as are necessary for the implementation of this article and as are necessary to comply with federal law. In addition, the commission department shall amend the state Medicaid plan in a manner that is consistent with this article."
SECTION 209. Section 44-7-90 of the 1976 Code, as added by Act 184 of 1987, is amended to read:
"Section 44-7-90. (A) Based on reports from the State Health and Human Services Finance Commission South Carolina Department of Health and Human Services the department Department of Health and Environmental Control shall determine each nursing home's compliance with its Medicaid nursing home permit. Violations of this article include:
(1) a nursing home exceeding by more than ten percent the number of Medicaid patient days stated in its permit;
(2) a nursing home failing to provide at least ten percent fewer days than the number stated in its permit;
(3) the provisions of any Medicaid patient days by a home without a Medicaid nursing home permit.
(B) Each Medicaid patient day above or below the allowable range is considered a separate violation. The department Department of Health and Environmental Control may levy a fine not to exceed the average rate per for each Medicaid patient day times each violation. Appeals from this action must comply with the appropriate provisions of Chapter 23 of Title 1."
SECTION 210. Section 44-7-170(B) of the 1976 Code, as last amended by Act 511 of 1992, is further amended to read:
"(B) The Certificate of Need provisions of this article do not apply to:
(1) an expenditure by or on behalf of a health care facility for nonmedical projects for services such as refinancing existing debt, parking garages, laundries, roof replacements, computer systems, telephone systems, heating and air conditioning systems, upgrading facilities which do not involve additional square feet or additional health services, replacement of like equipment with similar capabilities, or similar projects as described in regulations;
(2) facilities owned and operated by the State Department of Mental Health and the South Carolina Department of Mental Retardation Disabilities and Special Needs, except an addition of one or more beds to the total number of beds of the departments' health care facilities existing on July 1, 1988;
(3) educational and penal institutions maintaining infirmaries for the exclusive use of their respective student bodies and inmate populations;
(4) any federal health care facility sponsored and operated by this State;
(5) community-based housing designed to promote independent living for persons with mental or physical disabilities. This does not include a facility defined in this article as a 'health care facility'."
SECTION 211. Section 44-23-10(9) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(9) 'Director' means the Director of the Department of Mental Health, except when used as provided in item (8)."
SECTION 212. Section 44-38-380(A)(1)(i) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(i) Executive Director of the South Carolina State Department of Health and Human Services Finance Commission;"
SECTION 213. Section 44-40-60 of the 1976 Code is amended to read:
"Section 44-40-60. With the cooperation of the Department of Health and Environmental Control and the Department Division of Veterans Affairs in the Office of the Governor, the council:
(1) shall make an annual report to the General Assembly containing:
(a) a comprehensive review and summary analysis of the scientific literature on the effects of exposure to chemical agents, including Agent Orange;
(b) a summary of the activities undertaken to inform and assist veterans who may have been exposed to chemical agents, including Agent Orange;
(c) a description and interpretation of the results of any study undertaken pursuant to this chapter;
(d) other comments or recommendations the council considers appropriate.
(2) may hold hearings consistent with the purposes of this chapter. To assist it in carrying out these functions, the council may contract for an evaluation of the performance of the Department of Health and Environmental Control and the Department Division of Veterans Affairs in implementing this chapter and may contract for the compilation and editing of the annual report."
SECTION 214. Section 44-53-480(a)(1) and (2) of the 1976 Code are amended to read:
"(1) Assist the Commission on Department of Alcohol and Other Drug Abuse Services in the exchange of information between itself and governmental and local law-enforcement officials concerning illicit traffic in and use and abuse of controlled substances.
(2) Assist the Commission Department of Alcohol and Other Drug Abuse Services in planning and coordinating training programs on law enforcement for controlled substances at the local and state level."
SECTION 215. Section 44-53-490 of the 1976 Code is amended to read:
"Section 44-53-490. The Department of Health and Environmental Control shall designate persons holding a degree in pharmacy to serve as drug inspectors. Such These inspectors shall, from time to time, but no less than once every three years, shall inspect all practitioners and registrants who manufacture, dispense, or distribute controlled substances, including those persons exempt from registration but who are otherwise permitted to keep controlled substances for specific purposes. The drug inspector shall submit an annual report by the first day of each year to the Department department and a copy to the Commission on Department of Alcohol and Other Drug Abuse Services specifying the name of the practitioner or the registrant or such the exempt persons inspected, the date of inspection and any other violations of this article.
The department may employ other persons as agents and assistant inspectors to aid in the enforcement of those duties delegated to the department by this article."
SECTION 216. Section 44-53-500(b)(2) of the 1976 Code is amended to read:
"(2) When so authorized by an administrative inspection warrant issued pursuant to this section, an officer or employee designated by the Commission on Department of Alcohol and Other Drug Abuse Services, upon presenting the warrant and appropriate credentials to the owner, operator, or agent in charge, may enter controlled premises for the purpose of conducting an administrative inspection."
SECTION 217. Section 44-53-720(a) of the 1976 Code is amended to read:
"(a) To use in treatment, maintenance or detoxification programs in the State Department of Mental Health facilities or programs approved by the South Carolina Commission on Alcohol and Drug Abuse and licensed by the South Carolina Department of Mental Health."
SECTION 218. Section 48-9-30 of the 1976 Code, as last amended by Act 181 of 1993, is further amended by adding an appropriately numbered item to read:
"( ) 'State Land Resources and Conservation Districts Advisory Council' or 'advisory council' means the body created pursuant to Section 48-9-215."
SECTION 219. Article 3, Chapter 9, Title 48 of the 1976 Code is amended by adding:
"Section 48-9-215. (A) The State Land Resources and Conservation Districts Advisory Council is established consisting of the five commissioners provided for in Section 48-9-225. The council members must be appointed by the Governor for four years on the recommendation of the executive committee of the South Carolina Association of Soil and Water Conservation District Commissioners and serve until their successors are appointed and qualify. Vacancies must be filled in the manner of the original appointment for the unexpired term. A member may not succeed himself after he has served one full four-year term.
(B) The Governor shall name the chairman of the advisory council. A majority of the advisory council constitutes a quorum, and the concurrence of a majority in a matter within the council's duties is required for the matter's determination.
(C) The members of the advisory council may receive no compensation for their services on the council but may receive expenses, including travel expenses, necessarily incurred in the discharge of their duties on the council.
(D) The council shall advise the department and the division on standards, rules, regulations, or other matters related to land resources and conservation districts.
Section 48-9-225. For the purpose of selecting the five soil and water conservation district commissioners to serve as members of the advisory council, the State is divided into the following five areas:
(1) Area 1: Abbeville, Anderson, Cherokee, Greenville, Laurens, Oconee, Pickens, Spartanburg, and Union counties;
(2) Area 2: Aiken, Calhoun, Edgefield, Greenwood, Lexington, McCormick, Newberry, Richland, and Saluda counties;
(3) Area 3: Chester, Chesterfield, Darlington, Fairfield, Kershaw, Lancaster, Lee, Marlboro, and York counties;
(4) Area 4: Berkeley, Clarendon, Dillon, Florence, Georgetown, Horry, Marion, Sumter, and Williamsburg counties;
(5) Area 5: Allendale, Bamberg, Barnwell, Beaufort, Charleston, Colleton, Dorchester, Hampton, Jasper, and Orangeburg counties."
SECTION 220. Section 48-9-610 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 48-9-610. If the department shall determine board determines that the operation of the proposed district within the defined boundaries is administratively practicable and feasible it shall appoint two commissioners to act with the three commissioners elected as provided in Article 11 of this chapter as the governing body of the district."
SECTION 221. Section 48-9-1210 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 48-9-1210. The two commissioners appointed by the board shall, upon the recommendation of the advisory council, must be persons who are by training and experience are qualified to perform the specialized skilled services which will be required of them in the performance of their duties under this chapter."
SECTION 222. Section 48-9-1230 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 48-9-1230. Except as otherwise provided in Section 48-9-1220, the term of office of each commissioner is four years, except that in newly created districts the elected commissioners' terms of office are until the next regular election is held under the provisions of Section 48-9-1220 and the first appointed commissioners must be designated to serve for terms of one and two years, respectively, from the date of their appointment. A commissioner shall hold holds office until his successor has been is elected or appointed and has qualified. Vacancies must be filled for the unexpired term. The selection of successors to fill an unexpired term, or for a full term, must be made in the same manner in which the retiring commissioners shall, respectively, have been are selected, except that in the case of. However, for a vacancy in the unexpired term of an elected commissioner, a successor may be appointed by the board upon the recommendation of the advisory council and upon the unanimous recommendation of the remaining commissioners of the district. Any A commissioner may be removed by the board after consultation with the advisory council upon notice and hearing for neglect of duty or malfeasance in office, but for no other reason."
SECTION 223. Section 48-9-1820 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 48-9-1820. Members of the board advisory council and the commissioners of the district shall be are ineligible to appointment as members of the board of adjustment during their tenure of such the other office. The members of the board of adjustment shall receive compensation for their services at a per diem rate to be determined by the department for time spent on the work of the board, in addition to expenses, including traveling expenses, necessarily incurred in the discharge of their duties. The commissioners shall pay the necessary administrative and other expenses of operation incurred by the board of adjustment upon the certificate of the chairman of the board."
SECTION 224. Section 48-9-1840 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 48-9-1840. A land occupier may file a petition with the board of adjustment alleging that there are great practical difficulties or unnecessary hardships in the way of his carrying out upon his lands the strict letter of the land-use regulations prescribed by ordinance approved by the commissioners and praying the board to authorize a variance from the terms of the land-use regulations in the application of such the regulations to the lands occupied by the petitioner. Copies of such the petition shall must be served by the petitioner upon the chairman of the commissioners of the district within which his lands are located and upon the director of the department."
SECTION 225. Section 48-9-1850 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 48-9-1850. The board of adjustment shall fix a time for the hearing of the petition and cause due notice of such the hearing to be given. The commissioners of the district and the department may appear and be heard at such the hearing. Any An occupier of lands lying within the district who shall object objects to the authorizing of the variance prayed for may intervene and become a party to the proceedings. Any A party to the hearing before the board of adjustment may appear in person, by agent, or by attorney. If, upon the facts presented at such the hearing, the board shall determine that determines there are great practical difficulties or unnecessary hardships in the way of applying the strict letter of any of the land-use regulations upon the lands of the petitioner, it shall make and record such the determination and shall make and record findings of fact as to the specific conditions which establish such the great practical difficulties or unnecessary hardships. Upon the basis of such the findings and determination, the board of adjustment may by order may authorize such the variance from the terms of the land-use regulations, in their application to the lands of the petitioner, as will relieve such the great practical difficulties or unnecessary hardships and will not be contrary to the public interest and such that so the spirit of the land-use regulations shall be is observed, the public health, safety and welfare secured, and substantial justice done."
SECTION 226. Section 48-39-150(D) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(D) Any applicant having a permit denied or any person adversely affected by the granting of the permit has the right to a hearing conducted by an administrative law judge pursuant to Sections 1-23-600 and 1-23-610. A party aggrieved by a decision of an administrative law judge has the right of direct appeal from the decision of the Administrative Law Judge administrative law judge to the Coastal Zone Management Appellate Panel pursuant to Sections 1-23-600 and 1-23-610. A party aggrieved by a final decision of the Coastal Zone Management Appellate Panel is entitled to judicial review of that decision by the circuit court under the provisions of Section 1-23-610(A). For the purposes of this chapter, the final decision of the Coastal Zone Management Appellate Panel is the final decision of the board of the Department of Health and Environment. Any applicant having a permit denied may challenge the validity of any or all reasons given for denial."
SECTION 227. Section 48-39-210 of the 1976 Code, as last amended by Acts 127 and 181 of 1993, is further amended to read:
"Section 48-39-210. (A) The department is the only state agency with authority to permit or deny any alteration or utilization within the critical area except for the exemptions granted under Section 48-39-130(D), and the application for a permit must be acted upon within the time prescribed by this chapter.
(B) A critical area delineation for coastal waters or tidelands established by the department is valid only if the line is depicted on a survey performed by a professional surveyor, the line is reviewed by the department, the department validates the location of the boundaries of the coastal waters or tidelands critical area on the survey by affixing a stamp and date to the survey, and the survey contains clearly on its face in bold type the following statement:
'The area shown on this plat is a general representation of Coastal Council Department of Health and Environmental Control (department) permit authority on the subject property. Critical areas by their nature are dynamic and subject to change over time. By generally delineating the permit authority of the Coastal Council department, the Coastal Council department in no way waives its right to assert permit jurisdiction at any time in any critical area on the subject property, whether shown hereon or not.'
(C) Notwithstanding any other provision of this chapter, a critical area line established pursuant to subsection (B) that affects subdivided residential lots expires after three years from the department date on the survey described in subsection (B). For purposes of this section only, a critical area delineation existing on the effective date of this act is valid until December 31, 1993.
(D) Exceptions to subsection (C) are eroding coastal stream banks where it can be expected that the line will move due to the meandering of the stream before the expiration of the three-year time limit and where manmade alterations change the critical area line."
SECTION 228. Section 48-39-280(A)(4) and (E) of the 1976 Code, as last amended by Act 181 of 1993, are further amended to read:
"(4) Notwithstanding any other provision of this section, where a department-approved beach nourishment project has been completed, the local government or the landowners, with notice to the local government, may petition an Administrative Law Judge the department to move the baseline as far seaward as the landward edge of the erosion control structure or device or, if there is no existing erosion control structure or device, then as far seaward as the post project baseline as determined by the department in accordance with Section 48-39-280(A)(1) by showing that the beach has been stabilized by department-approved beach nourishment. If the petitioner is asking that the baseline be moved seaward pursuant to this section, he must show an ongoing commitment to renourishment which will stabilize and maintain the dry sand beach at all stages of the tide for the foreseeable future. If the Administrative Law Judge department grants the petition to move the baseline seaward pursuant to this section, no new construction may occur in the area between the former baseline and the new baseline for three years after the initial beach nourishment project has been completed as determined by the department. If the beach nourishment fails to stabilize the beach after a reasonable period of time, the department must move the baseline landward to the primary oceanfront sand dune as determined pursuant to items (1), (2), and (3) for that section of the beach. Any appeal of an Administrative Law Judge's the department's decision under this section may be made to the Coastal Zone Management Appellate Panel pursuant to Section 48-39-150(D).
(E) A landowner claiming ownership of property affected who feels that the final or revised setback line, baseline, or erosion rate as adopted is in error, upon submittal of substantiating evidence, must be granted a review of the setback line, baseline, or erosion rate, or a review of all three pursuant to Section 48-39-150(D). The requests must be forwarded to the Coastal Zone Management Appellate Panel and handled in accordance with the department's regulations on appeals."
SECTION 229. Section 48-39-290(D) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(D) Special permits:
(1) If an applicant requests a permit to build or rebuild a structure other than an erosion control structure or device seaward of the baseline that is not allowed otherwise pursuant to Sections 48-39-250 through 48-39-360, the department may issue a special permit to the applicant authorizing the construction or reconstruction if the structure is not constructed or reconstructed on a primary oceanfront sand dune or on the active beach, and, if the beach erodes to the extent the permitted structure becomes situated on the active beach, the permittee agrees to remove the structure from the active beach if the department orders the removal. However, the use of the property authorized under this provision, in the determination of the department, must not be detrimental to the public health, safety, or welfare.
(2) The department's Permitting Committee is the committee to consider applications for special permits.
(3)(2) In granting a special permit, the committee department may impose reasonable additional conditions and safeguards as, in its judgment, will fulfill the purposes of Sections 48-39-250 through 48-39-360.
(4)(3) A party aggrieved by the committee's department's decision to grant or deny a special permit application may appeal to the full Coastal Zone Management Appellate Panel the decision pursuant to Section 48-39-150(D)."
SECTION 230. Section 48-49-70 of the 1976 Code is amended to read:
"Section 48-49-70. (a)(A) The Department of Parks, Recreation and Tourism Natural Resources shall identify the protected mountain ridge crests in each county by showing them on a map or drawing, describing them in a document, or any combination thereof. These maps, drawings, or documents shall identify the protected mountain ridges as defined in Section 48-49-30 and such other mountain ridges as any county may request, and shall specify those protected mountain ridges that serve as all or part of the boundary line between two counties. By January 1, 1985, the map, drawing, or document tentatively identifying the protected mountain ridge crests of each county must be filed with the governing body of that county, with the municipal governing body of each municipality that requests it, and with the register of mesne conveyances or the clerk of court in the county where the land lies, and made available for inspection at the Department's offices in Columbia.
(b)(B) Determinations by the Department of elevations under this section are conclusive in the absence of fraud."
SECTION 231. Section 49-1-15 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 49-1-15. (A) Except as otherwise provided herein, no person may erect, construct, or build any structure or works in order to dam or impound the waters of a navigable stream or any waters which are tributary to a navigable stream for the purpose of generating hydroelectricity without securing a permit from the Department of Health and Environmental Control. Any projects that are subject to Chapter 33 of Title 58 of the Utility Facility Siting and Environmental Protection Act are exempted from this section. Further exempted are projects where the project developer without exercising condemnation authority is the existing owner of the property upon which the project is to be constructed and projects which do not exceed sixty acres including in both cases inundated land.
(B) Except as otherwise provided herein, no person may erect, construct, or build any structure or works in a navigable stream without securing a permit from the Department of Health and Environmental Control.
(C) The Department of Health and Environmental Control may issue a permit for the projects in this subsection after a thorough review of the proposed project and a finding that it meets any regulations of the board department and the following standards:
(1) The proposed project does not halt or prevent navigation by watercraft of the type ordinarily frequenting the reach of the watercourse in question.
(2) The projects proposed for shoaled areas of the watercourse provide a means of portage or bypass of the project structure.
(3) The need for the proposed project far outweighs the historical and current uses of the stream in question.
(4) The impact of the proposed project will not threaten or endanger plant or animal life. The proposed project will not violate water quality standards for the watercourse in question.
(5) The recreational and aesthetic benefits or detriments caused by the proposed project do not alter the watercourse or damage riparian lands.
(C)(D) The Attorney General shall represent before any federal agency the department, if so requested by the department, respecting the same application."
SECTION 232. Chapter 3 of Title 49 of the 1976 Code is amended by adding:
"Section 49-3-60. The department may negotiate agreements, accords, or compacts on behalf of and in the name of the State with other states or the United States, or both, with an agency, department, or commission of either, or both, relating to withdrawal, transfer, or diversion of water connected to waters of this State or that impacts waters of the State or future supplies of water. Prior to and as a part of any negotiation, the department must consult and coordinate with the Department of Health and Environmental Control and any other affected agency. Any interstate compact made by the department is subject to approval by joint resolution of the General Assembly. The department may represent the State in connection with water withdrawals, transfers, or diversions occurring in other states which may affect this State."
SECTION 233. Section 49-7-70(20) of the 1976 Code is amended to read:
"(20) To exercise the power of eminent domain for any a corporate function. The power of eminent domain may be exercised through any a procedure prescribed by Chapter 5, Title 28, or by following the procedure for the exercise of eminent domain by the State Highway Department Department of Transportation, prescribed by Article 3, Chapter 5, Title 57, as such the statutes are now constituted or as they may afterwards be constituted following any amendments thereto."
SECTION 234. Section 50-3-90 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 50-3-90. The authorized agents of the department may conduct game and fish cultural operations and scientific investigations in such manner, places and at such times as are considered necessary and may use whatever methods are deemed advisable for sampling fish populations. Such operations and investigations shall be conducted only at the request of and with the permission from the board department, and no such operations and investigations shall be made upon private lands and waters except at the request of the owner or owners of such lands and waters."
SECTION 235. Section 50-3-310 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 50-3-310. The director shall appoint the enforcement officers of the Natural Resources Enforcement Division, subject to their receiving a commission from the Governor. An enforcement officer shall be issued a commission by the Governor upon the recommendation of the director. An enforcement officer may be removed by the board director upon proof satisfactory to it the director that he the enforcement officer is not fit for the position."
SECTION 236. Section 50-3-315(A) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 50-3-315. (A) The director may appoint deputy enforcement officers to serve without pay and shall establish their territorial jurisdiction. The officers, when acting in their official capacity, may enforce all laws and regulations relating to wildlife, marine, or natural resources fish and game, trespass, and littering laws within their territorial jurisdiction. The powers and duties of the officers must be established by regulations of the department. Deputy enforcement officers serve at the pleasure of the director. The Secretary of State shall transmit to the director the commissions of all officers. The director shall transmit each commission to the office of the clerk of court for the county in which the officer resides only after he files the oaths and bonds required by Section 50-3-330."
SECTION 237. Section 50-3-510 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 50-3-510. The department may, subject to the provisions of this article, may contract for the selective cutting and sale of timber on any lands held by the department on behalf of its Wildlife and Freshwater Fish Fisheries Division. No contract for such the cutting and sale shall may be entered into and no timber shall may be cut or sold unless the board decides that the cutting and sale of such the timber is for the best interests of the department and the improvement of its lands, by reason of thinning the timber, harvesting the over-age trees, and improving general forestry conditions. Prior to Before selling or cutting any such the timber the matter shall must be submitted to the State Forester, who shall investigate the propriety of making such the cutting and shall have the timber cruised and an estimate of the value made. If the State Forester finds that the sale is not in keeping with good forestry practices or will adversely will affect the remainder of the timber, the sale shall must not be made."
SECTION 238. Section 50-5-20 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 50-5-20. The department shall have jurisdiction over all salt-water fish, fishing and fisheries, all fish, fishing and fisheries in all tidal waters of the State and all fish, fishing and fisheries in all waters of the State whereupon a tax or license is levied for use for commercial purposes. This includes the following: All shellfish, crustaceans, diamond-back terrapin, sea turtles, porpoises, shad, sturgeon, herring and all other migratory fish except rock fish (striped bass)."
SECTION 239. Section 50-5-110 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 50-5-110. The department may adopt and promulgate rules and regulations for the government of the force under its control and for the control of fisheries, not contrary to or inconsistent with the laws and policy of the State, having the force and effect of law, and may provide penalties for violation thereof of the regulations not to exceed forfeiture of license or privilege previously granted by the Division department."
SECTION 240. Section 50-7-10 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 50-7-10. In pursuance of Article III of the Atlantic States Marine Fisheries Compact, of which this State is a signatory, there shall be three members, hereinafter called Compact Commissioners, of the Atlantic States Marine Fisheries Commission, hereinafter called the Compact Commission, from this State. The first Compact Commissioner from this State shall be the Director of the department or his designee, ex officio, and the term of any such ex officio Commissioner shall terminate at the time he ceases to hold such office and his successor as Compact Commissioner shall be his successor as Director of the department. The second Compact Commissioner from this State shall be a legislator and member of the Commission on Interstate Cooperation of this State, ex officio, designated by the Commission on Interstate Cooperation, and the term of any such ex officio Commissioner shall terminate at the time he ceases to hold such legislative position or such position as Commissioner on Interstate Cooperation, and his successor as Compact Commissioner shall be named in like manner. The Governor, by and with the advice and consent of the Senate, shall appoint a citizen as a third Compact Commissioner, who shall have a knowledge of and interest in the marine fisheries problem. The term of such Compact Commissioner shall be three years and he shall hold office until his successor shall be appointed and qualified. Vacancies occurring in the office of such commissioner from any reason or cause shall be filled by appointment by the Governor, by and with the advice and consent of the Senate, for the unexpired term. The director of the department as ex officio commissioner may delegate, from time to time, to any deputy or other subordinate in his department or office, the power to be present and participate, including voting as his representative or substitute, at any meeting of or hearing by or other proceeding of the Compact Commission. The terms of each of the initial three members shall begin at the date of the appointment of the appointive Compact Commissioner, provided the compact shall then have gone into effect in accordance with Article II thereof and otherwise shall begin upon the date upon which the compact shall become effective in accordance with Article II.
Any commissioner may be removed from office by the Governor upon charges and after a hearing, but opportunity to be heard shall be given."
SECTION 241. Section 50-9-70 of the 1976 Code, as added by Act 94 of 1993, is amended to read:
"Section 50-9-70. The South Carolina Wildlife and Marine Resources Department of Natural Resources shall establish programs in instruction on the safe use of firearms and archery tackle for hunting and hunter responsibility. The programs must include, but are not limited to, the selection, training, and certification of instructors, appropriate course materials and content, and criteria for successful course completion. The department shall authorize the issuance of a certificate of completion to persons successfully completing the course."
SECTION 242. Section 50-9-470 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 50-9-470. In lieu of obtaining a regular annual nonresident fishing license provided for by Section 50-9-460, a nonresident of this State may procure a temporary nonresident license for the purpose of fishing for game fish or other fish in this State. The temporary license authorizes the licensee to fish in any of the waters of this State for a period of seven specified consecutive days, in accordance with other regulations provided by law, and the license is valid for the period specified. The fee for the license is eleven dollars. Of this amount one dollar may be retained by the agent selling a license, and the balance must be remitted by the agent to the department and deposited in the State Treasury to the State Treasurer in the game protection fund. The department, at the end of each calendar year, shall credit the Santee-Cooper funds with an amount equal to the sum collected during the calendar year 1956 from the temporary license then in effect for those waters. If there is a general decline in revenue from all sources of the Wildlife and Freshwater Fish Fisheries Division of the department, the amount credited may be reduced by the same percentage of the decline."
SECTION 243. Section 50-17-320 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 50-17-320. (A) If the State authorizes any activity or use requiring the permanent closure of shellfish grounds, the portion of a permitted area which falls within the closed area may be removed from the permit acreage agreement by the board department. If a portion of the acreage is removed, the permit acreage agreement and annual fee must be adjusted on the annual renewal date as prescribed in Section 50-17-336.
(B) If a state or federal permit is issued over the objections of the department, or for a project of overriding public need, and if the permitted project causes the closure of any shellfish grounds or renders any bottoms unsuitable for the purpose of shellfish propagation, the department may require the permittee to mitigate or compensate, or both, for the loss of the public shellfish resource.
The compensation must be remitted to the department and placed in a special fund for shellfish management.
Compensation and mitigation under authority of this section may not be considered as factors in justifying the issuance of any such permit and this section may not be interpreted as authorizing the closure of any shellfish grounds or authorizing the rendering of any bottoms unsuitable for shellfish propagation.
If an unauthorized action results in a closure of shellfishing waters or renders them temporarily or permanently unsuitable for the purpose of shellfish propagation, the party responsible for the action may be required by the department to mitigate the loss of the resource and to compensate for damages which result from the loss of the shellfish resource.
(C) The terms of the mitigation or compensation authorized by subsection (B) and the amount of the award of damages must be determined in the first instance by the board department. Its determination constitutes a final decision for the purpose of Section 1-23-380, and the affected party may seek judicial review pursuant to the decision."
SECTION 244. The first paragraph of Section 50-17-365 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 50-17-365. It is unlawful for any person to remove, take, or harvest any shellfish, as defined in Section 50-5-10, from the coastal waters and bottoms of the State from May fifteenth to September fifteenth, inclusive. The board department has the authority to open or close any area of state waters or bottoms for the removal, taking, or harvesting of shellfish for specified periods at any time during the year when biological and other conditions warrant the action. Nothing in this article may be construed to alter the authority of the Department of Health and Environmental Control to open and close shellfish grounds for public health reasons."
SECTION 245. Section 50-17-730 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 50-17-730. (A) As used in this section:
(1) 'Peeler crab' means a blue crab (Callinectes sapidus), having a new soft shell fully developed under the hard shell and having a definite white, pink, or red line or rim on the outer edge of the back fin or flipper.
(2) 'Soft shell crab' means a peeler crab which has recently has shed its hard shell.
(B) Notwithstanding the provisions of Section 50-17-720, any a person engaged in the catching, taking, or transporting of peeler crabs or in shedding peeler crabs for the purpose of producing soft shell crabs is required to have a valid permit or identification card issued by the department.
(C) Permits under this section must be issued only to bona fide dealers engaged in shedding peeler crabs and in possession of a valid license as provided in Section 50-17-180. The permits must be are in addition to any other licenses and permits required by law. The fee for each permit is seventy-five dollars annually for the license period beginning July first. Identification cards may be issued to a permit holder under this section to be used by persons employed by him to catch and transport peeler crabs to his shedding operation.
(D) The department has authority to inspect the business premises of any a person engaged in shedding peeler crabs.
(E) On each permit issued under this section the department has the authority to specify:
(a)(1) the area from which peeler crabs may be caught or taken by gear other than crab pots;
(b)(2) the types of gear or fishing equipment which may be used to take peeler crabs;
(c)(3) catch reporting requirements;
(d)(4) boat identification requirements;
(e)(5) any other provisions the department considers necessary to carry out the provisions of this section.
(F) Any A person violating the provisions of this section or any of the permit conditions of the Marine Resources Division of the department is guilty of a misdemeanor and, upon conviction, must be fined two hundred dollars or imprisoned thirty days. Upon conviction for a second offense, any permits issued under this section must be suspended for thirty days. Any A boat, with its equipment and rigging found engaged in the taking of peeler crabs after the permits have been suspended, must be confiscated and, upon conviction, must be sold as prescribed in Section 50-17-650."
SECTION 246. Title 50 of the 1976 Code is amended by adding:
Section 50-27-10. The following words or phrases have the definition given unless clearly specified otherwise:
1. 'Board of the department' means the governing board of the Department of Natural Resources.
2. 'Department' means the Department of Natural Resources.
3. 'Advisory board' means the Heritage Trust Advisory Board.
4. 'Natural area' means an area of land or water, or a combination thereof, generally, but not necessarily, large in size. Such an area may be in public or private ownership and shall contain relatively undisturbed ecosystems, landforms, threatened, endangered, or unique plant life or animal habitats, or other unusual or outstanding scientific, educational, aesthetic, or recreational characteristics.
5. 'Natural feature' means an area of land or water, or a combination thereof, which is generally, but not necessarily, small in size. Such area may be in public or private ownership and shall contain or consist of outstanding remnants or natural elements of surviving undisturbed natural ecosystems such as record size individual species of plant life, nests or rookeries, geological formations, or objects of special scientific, educational, aesthetic, or recreational character.
6. 'Cultural area or feature' means an area or feature which provides an outstanding example of our historical or archeological heritage. Such an area or feature shall be a site of special historic interest or contain outstanding remnants or elements of the way of life and significant events of our past so that through their preservation and the restoration of related existing structures, or the development of a historic area, as well as through study, investigation and examination of the material remains in that life, a record may be preserved of the interrelationship and effect between man's activities and his surrounding environment. A cultural area or feature may be one that is either publicly or privately owned.
7. 'Heritage Preserve' means a natural or cultural area or feature which is 'dedicated' under this chapter.
8. 'Heritage Site' means a natural or cultural feature which has been recognized as such through 'registration' under this chapter.
9. 'Dedicate or dedication' means the process by which any natural or cultural area or feature shall be established as a Heritage Preserve in accordance with the procedures set out in Section 50-27-80. Dedication may result from either of the following methods, but no power of eminent domain is hereby conferred or granted to the board of the department, the advisory board, or the department under this chapter:
(a) 'Acquisition' means the establishment of a Heritage Preserve whereby the owner of a natural or cultural area or feature transfers the fee simple interest therein to the board of the department for such purpose; or
(b) 'Acceptance' means the establishment of a Heritage Preserve whereby the owner of a natural or cultural area or feature transfers less than the fee simple interest therein to the board of the department for such purpose. Examples are granting of a 'conservation or open space easement' or the transfer of title subject to a life estate or reverter. Interests in real estate of a term of years shall not qualify for dedication under this chapter.
10. 'Register' or 'registration' means the process by which the owner of a natural or cultural feature shall enter into a written agreement with the board of the department recognizing the unique and outstanding characteristics thereof in accordance with the procedures set out in Section 50-27-100.
11. 'Priority areas and features list' means the list made up of those areas and features recommended by the advisory board, and approved by the board of the department, under this chapter whose preservation is of primary importance to the goals and purposes of this chapter and which are, therefore, eligible to be included as Heritage Preserves and Sites.
12. 'The Heritage Trust Program' means the entire system established under this chapter to provide for the inventorying, preservation, use and management of unique and outstanding natural or cultural areas and features in this State. The term 'Heritage Trust' means the legal trust which is created under Section 50-27-90.
Section 50-27-20. The General Assembly finds that as a part of the continuing growth of the population and the development of the economy of the State it is necessary and desirable that portions of the state's rich natural and cultural diversity be set aside as Heritage Preserves and Sites and protected for the benefit of present and future generations, for once disturbed they cannot be wholly restored. Such areas and features are irreplaceable as laboratories for scientific research; as reservoirs of natural materials for which the value and usefulness thereof is not yet fully known; as habitats for rare and vanishing species; and as living museums where people may observe natural biotic and environmental systems and as areas for study and enjoyment as examples of the lands, structures and related artifacts which represent significant parts of our historical and cultural heritage.
While a number of independent and differing efforts, both private as well as governmental, have been initiated to protect some of these assets, a coordinated and concerted program is needed in order to avoid duplication among these and other valuable activities and to ensure the maximum conservation of these resources through the establishment of a more effective and adequate official legal mechanism for identifying, recognizing, and protecting such areas for their outstanding characteristics. While the preservation of all of these assets in their natural state is both impractical and often not necessarily in the total best interest of the State and the public, they exist in limited and decreasing quantities. The time is now for a decision to be made as to which of these areas and sites deserve increased protection and for selecting the most appropriate means for doing so.
It is therefore the public policy of this State to secure for the people, both present and future generations, the benefits of an enduring resource of natural and cultural areas and features by establishing a system of Heritage Preserves and Sites; protecting this system; gathering and disseminating information regarding it; establishing and maintaining a listing of Heritage Preserves and Sites; and otherwise encouraging and assisting in the preservation of natural and cultural areas and features of this State.
Section 50-27-30. The Heritage Trust Program is created to achieve the following goals by protecting lands and making them available to state agencies, educational institutions, and public and private groups for the following purposes:
1 For research in such fields as archeology, agriculture, conservation, ecology, forestry, genetics, geology, history, paleontology, pharmacology, soil science, taxonomy, and similar fields by governmental employees, educational and scientific groups as well as by private individuals.
2. For the teaching of archeology, biology, conservation, ecology, geology, history, natural history, and other subjects.
3. As habitats and places for maintaining plant and animal species in communities.
4. As reservoirs of natural and cultural materials.
5. As places of natural and cultural interests and beauty whereby through visitation the public may observe, value, and enjoy natural and cultural processes and events. Unique recreational opportunities of a type not generally available through the existing State Park System may be provided, including outdoor sporting usage such as hunting and fishing as well as aesthetics, where wholly compatible and consistent with the character of the area or feature.
6. As benchmarks against which to measure such processes or events as well as the environmental degradation from natural and unnatural influences.
7. To promote the understanding and appreciation of the aesthetic, cultural, and scientific values of such areas and features by the people of the State.
8. For the preservation and protection of Heritage Preserves and Sites against modification or encroachment resulting from occupation, development, or other uses which would destroy their natural and cultural character.
9. As places for maintaining representative lands and related structures which illustrate periods, events, styles, and uses of the land in our state's historic and cultural heritage.
Section 50-27-40. The board of the department shall have the following duties, responsibilities, and powers under this chapter:
1. To serve as trustee of the trust created under this chapter and to carry out the powers, duties, and responsibilities thereunder;
2. To supervise the establishment, updating and maintenance of a statewide inventory of the natural and cultural resources and the maintenance of a list of those areas and features selected or established under this chapter as priority areas and features or as Heritage Preserves and Sites;
3. To select from the recommendations of the advisory board those natural and cultural features, the preservation of which is of primary importance to the goals and purposes of this chapter, and to classify such as priority areas and features;
4. To select from the recommendations of the advisory board those priority areas and features which should be dedicated or recognized as Heritage Preserves or Sites, and thereafter to establish as such through dedication or recognition;
5. To select from the recommendations of the advisory board those Heritage Preserves, interests therein or portions thereof, deserving of protection under the Heritage Trust and thereafter to transfer same into the corpus of the trust.
6. To conduct public hearings on the question of whether any particular natural or cultural area or feature should be established as a Heritage Preserve or Site, or on the uses or nonuses which shall apply to any area dedicated under the Heritage Trust Program;
7. To manage or provide for the management of Heritage Preserves through the promulgation of rules and regulations designed to preserve the primary natural character of such areas or features and to provide the maximum public usage thereof which is compatible and consistent with the character of the area. Management duties and responsibilities may be assigned to any governmental or private group, with its consent, with respect to any particular Heritage Preserve;
8. To cooperate with and to enter into agreement with other state, federal, county, and local units of government as well as private groups for the promotion of the purposes of this chapter including the carrying out of other requirements under federal and state law.
9. To report annually to the Governor and to the General Assembly as to the activities of the Heritage Trust Program and its future plans, and to make any specific recommendations which it feels, if implemented, would assist in achieving the goals and purposes of this chapter.
Section 50-27-50. The Heritage Trust Advisory Board is hereby created to assist the board of the department in carrying out its duties and responsibilities under this chapter. The advisory board shall consist of seventeen members who shall be chosen as follows and shall elect from its membership a chairman:
1. From the general public, six persons, one from each congressional district within the State, who shall be appointed by the Governor and serve for a term of six years. Of these six, four persons shall be from the scientific community who are recognized and qualified experts in the ecology of natural areas, and two persons shall be from the cultural community who are recognized and qualified experts in the history and archeology of the State. The term 'expert' does not of necessity denote a professional but one learned and interested in the field.
2. From state government, the following persons or their designees:
A. The Chairman of the board of the Department of Natural Resources;
B. The Director of the Department of Natural Resources;
C. The Director of the South Carolina Department of Parks, Recreation and Tourism;
D. The Director of the Department of Environmental Control;
E. The Director of the South Carolina Department of Archives and History;
F. The State Forester;
G. The State Archeologist;
H. The Director of the State Museum; and
I. The Director of the Department Secretary of Commerce.
Provided, however, of the initial appointees under this section, that of the six persons appointed under Item 1 above, two shall serve for a term of two years, two for a term of four years, and two for a term of six years.
Section 50-27-60. The Heritage Trust Advisory Board shall have the following powers and duties:
1. To review the inventories prepared and submitted by the department and other state agencies as well as other appropriate sources of information and to recommend therefrom to the board of the department the selection of those areas and features as priority areas and features that it deems considers to be of primary importance to the goals and purposes of this chapter.
2. To evaluate, review and examine proposals of the department and other state agencies as well as citizen recommendations for the dedication or recognition of specific areas and features as Heritage Trust Preserves and Sites, and from its expertise to recommend to the board of the department the dedication or recognition of such areas and features which it feels proper.
3. To recommend to the board of the department any rules, regulations, management criteria, allowable uses and such which the advisory board feels would be beneficial to carrying out the goals and purposes of this chapter.
4. To appoint technical committees consisting of experts in specialty areas dealing with the ecology, history, and archeology of our State and any other type committees that the advisory board feels can be of assistance in fulfilling its duties and responsibilities under this chapter.
5. To assist in maintaining a list of areas and sites which through dedication become Heritage Trust Preserves or Sites and to make public information regarding their location, management, regulation, and permissible public uses and the like.
6. To authorize research and investigation for inventory and assessment purposes, including the reasonable right of entry and inspection, and to disseminate information and recommendations pertaining to natural and related cultural areas and features.
Section 50-27-70. The department shall act as the basic staff for the board of the department and the advisory board and shall have the following powers and duties:
1. The director shall select a member of his staff who shall be primarily responsible for the administration of the Heritage Trust Program.
2. The department shall supply such other staff and support services as the board of the department and the advisory board require to fulfill their duties and responsibilities under this chapter.
3. The department shall maintain a public record of any inventories or lists established under this chapter.
4. The department shall work with owners, both public and private, in the development of proposals for the dedication and recognition of natural and cultural areas and features as Heritage Preserves and Sites, and it shall keep the advisory board informed of the same in order that therefrom the advisory board may make recommendations to the board of the department as provided under this chapter.
5. The department shall consult with and work in cooperation with the Department of Archives and History, the State Archeologist, the Department of Parks, Recreation and Tourism and any other state, county, or local unit of government, or any private entity, or group which is or should be directly involved in the Heritage Trust Program as well as in any particular efforts to preserve or protect any specific area or feature under the provisions of this chapter. In all cases, the department shall attempt to avoid duplication of effort with other agencies and groups and shall have no mandatory authority hereunder to require action by any such body.
Section 50-27-80. Upon recommendation of the advisory board and approval by the board of the department, any area or feature on the 'Priority Areas and Features List' may be established as a Heritage Preserve through the process of dedication. In addition to the transfer of either the fee simple interest or a lesser interest therein such as an open space easement, the owner of any such area or feature must enter into a written 'Dedication Agreement' with the department whereby any restrictions, conditions, permissive and nonpermissive uses of the area or feature involved are clearly stated. Once the necessary deed, easement or the like has been filed along with the 'Dedication Agreement' in the real estate records for the county in which the area or feature is located, the process of dedication shall be complete and a Heritage Preserve shall have formally been established.
No area or feature of primarily cultural significance or character shall be dedicated unless the Archives and History Commission approves thereof. The following restrictions shall apply to all Heritage Preserves:
1. The primary dedication as a Heritage Preserve shall be to preserve and protect the natural or cultural character of any area or feature so established. The board of the department and its agents shall in all cases maintain the essential character of any area or feature dedicated, and as such they are hereby declared to be at their highest, best and most important use for the public benefit. No Heritage Preserve shall be taken for any other public purpose unless the approval of both the board of the department and the Governor has been obtained. In no case shall any Heritage Preserve be taken for any private use.
2. An acquisition by dedication shall be in perpetuity.
3. In any case where an area or feature is dedicated as a Heritage Preserve through acceptance of less than the fee simple interest therein, no management of such property shall be performed by state agencies or their employees and no public funds shall be utilized in the upkeep or general maintenance of such property; provided, in the case where public usage of such area or feature is compatible and consistent with the natural character of the property and the owner is agreeable to allow such as defined under this chapter, reasonable costs of maintenance and management may be borne by the State.
4. No acquisition of any area or feature as a Heritage Preserve shall be allowed whereby the department receives the fee simple interest in the property while the grantor or transferor retains the beneficial use or interests in the land except where total and complete public usage of the area or feature as allowed under this chapter is agreed to in the 'Dedication Agreement'.
5. Within ninety days from the date of the completion of the dedication process by which an area or feature is established as a Heritage Preserve, or as soon thereafter as possible, the department shall recommend a management plan for the area or feature concerned. Such proposed plan shall include recommendations as to the uses and nonuses to which the property should be put, recommendations as to whether all or a part of the area or feature is deserving of increased protection through inclusion in the Heritage Trust, the projected cost of the management of the property, and recommendations as to whether or not a user fee would be appropriate. All state, federal, county, local, and private groups interested in the area or feature involved shall be allowed to have input into the proposed management plan. The plan shall be considered by the advisory board, and therefrom the advisory board shall propose to the board of the department an overall management plan for the area or feature concerned. Upon approval by the board of the department of a plan, the department or that agency or group authorized by the board of the department shall manage the Heritage Preserve in accordance therewith.
Section 50-27-90. There is hereby created the South Carolina Heritage Trust, the trustee of which shall be the Board of the South Carolina Department of Natural Resources. The corpus of the trust shall be made up of those Heritage Preserves which the board of the department considers to be of such outstanding and unique natural or cultural character so as to be significant and essential to the carrying out of the goals and purposes of this chapter and as such, to merit a greater degree of preservation than that provided by dedication. The board of the department shall have authority to place into the corpus of the trust any Heritage Preserve that it feels meets this criteria and which has been recommended for inclusion therein by the advisory board. The beneficiaries of this trust are and shall be the present and future generations of citizens of the State, more particularly those present and future citizens residing within a close proximity to any area or feature which itself, or an interest therein, becomes, constitutes, or comprises a part of the corpus of such trust and who actually enjoy use of such area or feature; and further and more particularly, those present and future students, teachers, and persons residing in the State who are concerned with conservation or with research in any facet of ecology, history, or archeology and who actually utilize any such area or feature for the promotion of such interest.
Wherever the term 'area or feature' is used in this section, it shall include 'or interests therein'. The following, except as otherwise expressly provided, shall constitute substantive terms of the trust and apply to any area or feature which becomes a part of the corpus thereof:
1. Upon approval by the board of the department of the inclusion of a Heritage Preserve in the corpus of the South Carolina Heritage Trust, such transfer shall be recorded in the county in which the property is located and shall establish conclusive proof that such area or feature is suitable for preservation and protection under this chapter and constitutes a part of the corpus of the South Carolina Heritage Trust.
2. In any case wherein the previous owner of a Heritage Preserve has restricted such area or feature from inclusion in the South Carolina Heritage Trust, or where the previous owner has withheld an interest therein such as a life estate or reverter, the Heritage Preserve involved shall not be allowed to become a part of the corpus of the South Carolina Heritage Trust unless at a subsequent time such approval is obtained from such person or his successor in interest.
3. Upon the approval by the board of the department of the inclusion of any Heritage Preserve in the South Carolina Heritage Trust and the transfer of the title or interest held by the board of the department therein to the trust, subject to the provisions of Item 2 of this section, legal title to such area or feature shall be conveyed to the trustee of the South Carolina Heritage Trust and the equitable, or beneficial ownership, shall rest in those beneficiaries previously stated and described, whether such property was owned by a private or public source prior to dedication.
4. Upon approval by the advisory board, the department, the board of the department, and any agency of the State is hereby authorized to enter into agreement in advance with any person, firm, corporation, legal entity of government, or any private group that any particular area or feature shall be conveyed to the trustee in trust under the provisions of this chapter.
5. Upon approval by the board of the department of inclusion of any Heritage Preserve into the corpus of the South Carolina Heritage Trust, the advisory board shall review the management plan therefor as well as the 'Dedication Agreement' and any other sources of information which it may consider appropriate. Upon approval thereof by the board of the department, the department, or that agency or group assigned management responsibilities therefor, shall manage the property in accordance therewith. Except to the extent expressly otherwise provided in the 'Dedication Agreement', the following substantive terms shall be deemed to be set forth in the conveyance to the Heritage Trust and the trustee shall hold such property in trust subject to such terms:
(a) The essential natural character of the property shall be maintained.
(b) There shall be no erection of any improvements thereon except those minimal improvements necessary for the security, safety, or convenience of the public and those required for maintenance and management.
(c) Cutting or burning of timber, wood or other destruction of flora or fauna shall be permitted only for conservation or regeneration of flora or fauna; or for the control of plant succession by deliberate manipulation for restoration of preservation of a particular vegetation type or of an endangered species of flora, fauna or wildlife; or for the establishment and maintenance of nature and hiking trails, camping areas and the like where compatible and consistent with the character of the area or feature concerned and not seriously damaging or detrimental to the natural quality of the property.
(d) No stream shall be dammed or have its course altered.
(e) No motorized vehicles shall be permitted on the property other than those utilized by the trustee or its agents in management and protection of the property or used by the general public for ingress and egress to the property in compliance with the management plan for the area or feature concerned.
(f) No change shall be made in the general topography of the area or feature except for those minimal alterations which may be necessary to provide on-foot access to the public for visitation, or observation; and this shall be done only where wholly compatible and consistent with the character of the property and where no detrimental effect shall result.
(g) No activity shall be allowed or permitted which might pollute any stream, body of water, or the atmosphere.
(h) No signs, billboards or other advertising of any kind shall be erected; however, informational and directional signs related to the designation of the area or feature as a Heritage Preserve and related to the public's enjoyment thereof shall be allowed when approved by the trustee.
(i) No other acts or uses which are detrimental to the retention of the property in its natural state shall be allowed, including those detrimental to flood control, drainage, water conservation, erosion control or soil conservation, or fish or wildlife habitat preservation.
(j) Where cultural areas or features are involved, reasonable excavation, improvement and the like shall be allowed for research purposes as well as to restore such area or feature.
(k) The trust shall continue in perpetuity.
(l) Nothing in this chapter shall be interpreted as restricting the use of an existing or any future easement, express or implied, in favor of any utility or other holder of an easement for public purposes.
6. Those natural and related cultural areas and features which are acquired as Heritage Preserves in accordance with the trust provisions of this chapter are hereby declared to be as such at their highest, best and most important use for the public benefit. The State, any agencies thereof, local or county entities of government, or public utility which has the power of condemnation by law may acquire by purchase, gift, or eminent domain an easement or other interest in any property comprising a part of the corpus of the Heritage Trust; provided, however, that before any such condemnation shall occur a court of competent jurisdiction shall determine the following:
(1) there is an unavoidable and imperative public necessity that the property or interest therein be taken for another public use;
(2) that there is no feasible and prudent alternative for the proposed use for which the property or interest therein is to be taken; and
(3) that the proposal for taking includes all possible planning to minimize the harm done to such property resulting from such proposed use. Where the court deems appropriate, a public hearing shall be conducted prior to the court's decision to allow comment and input thereto. No city, county, public district, agency of the State, or public utility of the State shall acquire any real property which is a part of the corpus of the Heritage Trust through condemnation for the purpose of utilizing such property for another public use unless the acquiring entity pays or transfers to the Heritage Trust sufficient compensation to enable the operating entity to replace the real property and facilities thereon. The trustee of the trust shall have authority to utilize such proceeds to acquire additional property for the trust and to maintain those properties which form the corpus of the trust.
7. The common law of South Carolina pertaining to trusts shall be applicable to the Heritage Trust and to all areas or features, or interests therein, which become a part of this corpus. Without in any way limiting the generality of the foregoing, such trusts shall not fail for want of a trustee, and the trust shall be terminated as to any particular area or feature, or interest therein, only upon total failure of the intended purpose. Any substitution of the trustee or termination of the trust as to any particular area or feature, or interests therein, shall occur only after appropriate judicial action wherein the beneficiaries are adequately represented, and such total failure shall not in any way affect the remainder of the property within the corpus of the trust.
8. The trustee shall hold, manage, preserve and enforce the various areas and features, or interests therein, which become a part of the corpus of the trust in accordance with the terms of this chapter and in any respective conveyances and transfers thereto. To that end the trustees may adopt and modify rules and regulations for the use and enjoyment of such trust properties by the public, and may employ or appoint agents to act on their behalf in the management of such properties.
Section 50-27-100. In any case wherein a priority feature is either unsuited or unavailable for acquisition as a Heritage Preserve, the board of the department in agreement with the owner thereof may recognize such for its importance by registering it as a Heritage Site through the following registration procedures:
1. The department through its research and consultation with the owners of properties selected as priority features shall notify the advisory board of those which are unsuited or unavailable for dedication but for which the owners have made application for recognition as Heritage Sites through registration.
2. The advisory board shall review such applications and shall recommend to the board of the department the approval of those which it deems worthy of preservation through registration as Heritage Sites.
3. From the advisory board's recommendations, the board of the department shall approve those applications for recognition as Heritage Sites which it deems deserving and appropriate for carrying out the purposes of this chapter.
4. Upon approval of an application by the board of the department, the department may enter into a written agreement of registration with the owner of the feature concerned whereby the State shall give public recognition of the importance of the area or feature as a Heritage Site and the owner shall express his intent to preserve it.
5. The department shall erect and maintain an appropriate sign on the Heritage Site indicating its recognition and the owner thereof shall be given a certificate acknowledging its registration.
6. The registration agreement may be terminated by the owner or the board of the department at any time upon thirty days' notification to the other party. Such termination shall remove the feature from the Heritage Site Program, and any certificate previously issued therefor or sign erected shall be returned to the department by the property owner.
7. Unless the registration agreement is terminated, the owner of a Heritage Site shall maintain its essential natural character.
Section 50-27-110. The department shall include those costs and operating expenses necessary for the activities of the board of the department and the advisory board as well as staff support to carry out the provisions of this act in the annual State Appropriation Act. Funding for management of areas and features which become Heritage Preserves must be specifically requested by the department or that entity of government responsible for management thereof.
The board of the department shall select those Heritage Preserves for which it is appropriate to charge an individual user fee. The department may sell such user permits for a cost not to exceed five dollars and to be valid for the fiscal year in which issued at all Heritage Preserves where a permit is required. At the end of the fiscal year, the department shall distribute the funds collected among the entities of government assigned responsibility for management in direct proportion to the acreage which they manage. The proceeds of the sale of the user permits must be used to defray the management expenses.
Section 50-27-115. There is created the Heritage Land Trust Fund, which must be kept separate from any other funds of the State. The fund must be administered by the board of the department for the purpose of acquiring fee simple or lesser interest in priority areas, legal fees, appraisals, surveys, or other costs involved in the acquisition of interest in priority areas, and for the development of minimal facilities and management necessary for the protection of the essential character of priority areas. Expenditures under this section for management may not exceed ten percent of revenues to the fund in any fiscal year.
Unexpended balances, including any interest derived from the fund, must be carried forward each year and used only for the purposes provided in this chapter.
No fund money may be expended to acquire interest in property by eminent domain nor may the funds be expended to acquire interest in property without a recommendation of the Heritage Trust Advisory Board and the approval of the State Budget and Control Board.
The board of the department shall report by letter to the presiding officers of the General Assembly not later than January fifteenth each year all funds expended pursuant to this chapter for the previous year, including the amount of funds expended and the uses to which the expenditures were applied.
The Trust Fund is eligible to receive appropriations of state general funds, federal funds, donations, gifts, bond issue receipts, securities, and other monetary instruments of value. Reimbursement for monies expended from this fund must be deposited in this fund. Funds received through sale, exchange, or otherwise of any Heritage Preserve acquired under this section, or any products of the Preserve such as timber, utility easement rights, and the like, accrue to the fund.
Section 50-27-120. Nothing contained in this chapter shall be construed as interfering with the purposes stated in the establishment of or pertaining to any state or local park, preserve, wildlife refuge, forest or other area or the proper management and development thereof, except that any agency managing an area or feature acquired as a Heritage Preserve or a Heritage Site under the provisions of this chapter shall preserve it in accordance with the applicable conveyance, registration agreement and the rules and regulations of the board of the department applicable thereto.
Neither the acquisition of any Heritage Preserve nor the registration of any Heritage Site nor any action taken by the board of the department under any of the provisions of this chapter shall void or replace any protective status under law which an area would have were it not a Heritage Preserve or Heritage Site, the protective provisions of this chapter being supplemental thereto.
Section 50-27-130. 1. Enforcement officers of the Natural Resources Enforcement Division of the Department of Natural Resources, park rangers, and forestry rangers, as well as all other state and local law enforcement officials, shall have authority to enforce the provisions of this chapter.
2. The Attorney General shall enforce the rules and regulations of the board of the department both as they apply to those areas dedicated as well as those that are subsequently made a part of the corpus of the South Carolina Heritage Trust. In exercise of this authority, the Attorney General may, among other things and at the request of the board of the department, bring an action for injunctive or declaratory relief in any court of competent jurisdiction.
3. (a) Any person violating the provisions of this chapter where the damage to the property does not exceed five hundred dollars is guilty of a misdemeanor and, upon conviction, shall be fined not more than one hundred dollars or be imprisoned not more than thirty days for each offense.
(b) Any person violating the provisions of this chapter where the damage to the property exceeds five hundred dollars is guilty of a misdemeanor and, upon conviction, shall be fined not less than five hundred dollars nor more than five thousand dollars or be imprisoned not more than six months, or both, for each offense.
Section 50-27-140. Not more than one hundred thousand acres total of real property shall be acquired in fee under the provisions of this chapter. Moreover, no acquisition shall be made under this chapter in any county without written approval of a majority of the county delegation in the county where the property is located.
Section 50-27-150. The South Carolina Department of Natural Resources, as trustee for the Heritage Land Trust Fund, shall report annually to the Committee on Ways and Means of the House of Representatives and the Senate Finance Committee detailing acquisitions in the previous year by the Heritage Land Trust Fund and planned acquisitions for the next five years."
SECTION 247. The first paragraph of Section 51-3-60 of the 1976 Code is amended to read:
"Any A South Carolina resident who is over sixty-five years of age or disabled or legally blind as defined in Section 43-25-20 of the 1976 Code may use any facility of a state park except campsites, overnight lodging, and recreation buildings without charge. Such These residents also may also use campsite facilities at one-half of the prescribed fee. A person exercising this privilege on the basis of age shall present his medicare card or other card approved by the South Carolina Commission Division on Aging in the Office of the Governor to the employee of the State Department of Parks, Recreation and Tourism who is in charge of the particular state park, and a person who is disabled or legally blind shall present to such the person in charge of the park a certificate to that effect from a licensed doctor of medicine or an official of an agency authorized by law to make determinations of disability or blindness. The authorization for use of the facilities as provided by this section shall is not be effective if it conflicts with any federal law, rule, or regulation."
SECTION 248. Section 51-13-860 of the 1976 Code is amended to read:
"Section 51-13-860. The State Budget and Control Board may transfer to the authority an amount not to exceed six million dollars from the funds made available to the South Carolina Coordinating Council for Economic Development of the Department of Commerce pursuant to Section 12-27-1270, for the purpose of the authority participating in any court approved settlement of the claims and litigation brought against the authority, or its officers, employees, or agents and arising from, related to, or connected with the development of a hotel and marina complex upon the lands of the authority, and for those other operating expenses necessary for the further development of the authority. This transfer is considered a loan to the authority, and it must be for a period not to exceed three years as determined by the Budget and Control Board and must be free of interest for that period."
SECTION 249. Section 53-3-100 of the 1976 Code is amended to read:
"Section 53-3-100. A committee is created to choose and honor the 'South Carolina Family of the Year' which must be recognized by the presentation of an appropriate award by the Governor on Saturday of 'Family Week in South Carolina'. The committee is composed of one member appointed by the Governor and one member appointed by the head of each of the following state agencies: the Department of Parks, Recreation and Tourism, the Department of Youth Services Juvenile Justice, the South Carolina Commission Division on Aging of the Office of the Governor, the Department of Social Services, the Commission on Department of Alcohol and Other Drug Abuse Services, and the Department of Agriculture Clemson College Extension Service. The terms of the members are for four years and until their successors are appointed and qualify. The committee shall meet as soon after the appointment of its members as practicable and organize by electing one of its members as chairman, one as secretary, and such other officers that it may determine. The expenses of the committee must be paid by the Department of Parks, Recreation and Tourism from funds appropriated for this purpose."
SECTION 250. Section 55-1-1 of the 1976 Code, as added by Act 181 of 1993, is amended to read:
"Section 55-1-1. There is created a Division of Aeronautics as a division within the Department of Commerce which shall be governed by the Director of the Department Secretary of Commerce as provided in Chapter 1 of Title 13."
SECTION 251A. Section 55-5-50 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 55-5-50. The director secretary shall employ a deputy director of aeronautics who is or has been a commercial pilot with instrument rating and such other employees as necessary for the proper transaction of the division's business."
SECTION 251B. Section 56-1-40(2) of the 1976 Code is amended to read:
"(2) whose driver's license or privilege to operate a motor vehicle currently is suspended or revoked in this State or another jurisdiction or whose driver's license or privilege to operate a motor vehicle is subject to being suspended in this State or another jurisdiction as a result of a conviction or another adjudication which authorizes or requires the suspension or revocation of a motor vehicle driver's license under the laws of this State, except as otherwise provided for in this chapter by law;"
SECTION 252. Section 56-1-80 of the 1976 Code, as last amended by Section 121, Act 497 of 1994, is further amended to read:
"Section 56-1-80. Every application for a driver's license or permit must:
(1) be made upon the form furnished by the department;
(2) be accompanied by the proper fee and acceptable proof of date and place of birth;
(3) contain the full name, date of birth, sex, race, and residence address of the applicant and briefly describe the applicant;
(4) state whether the applicant has been licensed as an operator or chauffeur and, if so, when and by what state or country; and
(5) state whether a license or permit has been suspended or revoked or whether an application has been refused and, if so, the date of and reason for the suspension, revocation, or refusal.
Whenever application is received from a person previously licensed or permitted in another state, the Department of Revenue and Taxation in conjunction with the Department of Public Safety shall request a copy of the applicant's record from the other state. When received, the record becomes a part of the driver's record in this State with the same effect as though entered on the operator's record in this State in the original instance. Every person who obtains a driver's license or permit for the first time in South Carolina and every person who renews his driver's license or permit in South Carolina must be furnished a written request form for completion and verification of liability insurance coverage.
The completed and verified form or an affidavit prepared by the department Department of Public Safety that neither he, nor a resident relative, owns a motor vehicle subject to the provisions of this chapter, must be returned to the department Department of Public Safety within thirty days from the date the license or permit is issued or renewed. Failure to return the form or affidavit results in the suspension of the newly issued or renewed driver's license or permit until a properly executed form or affidavit is returned to the department."
SECTION 253. Section 56-1-135 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 56-1-135. (A) Notwithstanding the provisions of Section 56-1-130, a paid or volunteer firefighter of a lawfully and regularly organized fire department designated to drive a firefighting vehicle may have a special endorsement affixed to his driver's license which authorizes him to drive this vehicle for the purpose of carrying out the duties and responsibilities of a fire department and related activities.
(B) Every political subdivision and unincorporated community operating a lawfully and regularly organized fire department of this State shall designate a law enforcement officer or the fire chief or his designee as its safety officer. The safety officer shall meet the qualifications set forth in the department Department of Public Safety guidelines. However, he does not have to be a full-time employee. A firefighter desiring to drive the vehicle referred to in subsection (A) shall demonstrate his ability to exercise ordinary and reasonable control in the operation of this vehicle to a safety officer. The fire department, including volunteer fire departments, shall submit to the department Department of Public Safety a list of the persons designated to drive the vehicle.
(C) It is the responsibility of the agency or fire department who operates the vehicle to keep the list of designated drivers current. Changes in the list of drivers must be reported to the department Department of Public Safety within thirty days from the change."
SECTION 254. Section 56-1-221(B) of the 1976 Code is amended to read:
"(B) The board shall advise the executive director of the department Department of Public Safety on medical criteria and vision standards relating to the licensing of drivers."
SECTION 255A. Section 56-1-225 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 56-1-225. (a) Any person licensed to drive a motor vehicle in this State who is involved as a driver in four accidents in any twenty-four month period, which are reported to the director Director of the Department of Public Safety, may, in the discretion of the department Department of Public Safety, be required to take any portion of the driver's license examination deemed appropriate. Any person who has had four such accidents and fails to submit to such test within thirty days after having been notified by the department Department of Public Safety shall have his driver's license suspended until he takes and passes such test.
(b) The director Director of the Department of Public Safety shall promulgate regulations to implement the provisions of this section."
SECTION 255B. Section 56-1-320 of the 1976 Code is amended to read:
"Section 56-1-320. The Department of Public Safety may, in its discretion, suspend or revoke the license of any resident of this State or the privilege of a nonresident to drive a motor vehicle in this State upon receiving notice of the conviction of such person in another state of an offense therein which, if committed in this State, would be grounds for the suspension or revocation of the South Carolina license.
Provided, however, that if another state restores limited or restricted driving privileges to the person whose license has been suspended or revoked such restoration of privileges shall also be valid in this State under the same terms and conditions under which driving is authorized in the resident state of the person concerned conviction."
SECTION 255C. Section 56-1-390(1) of the 1976 Code is amended to read:
"(1) Whenever the Department of Public Safety suspends or revokes the license of a person under its lawful authority, the license remains suspended or revoked and must not be reinstated or renewed nor may another license be issued to that person until he also remits to the department a reinstatement fee of thirty dollars. The director or his designee may waive or return the reinstatement fee if it is determined that the suspension or revocation is based upon a lack of notice being given to the department or other similar error."
SECTION 255D. Section 56-1-650 of the 1976 Code is amended to read:
"(A) The licensing authority in the home state, for the purposes of suspension, revocation, or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported pursuant to Article 2, Chapter 1, Title 56, as it would if the conduct had occurred in the home state, in the case of convictions for A state that is a member of the Drivers License Compact shall report to another member state of the compact a conviction for any of the following:
(1) manslaughter or homicide resulting from the operation of a motor vehicle as provided by Sections 56-1-280 and 56-5-2910;
(2) driving a motor vehicle while under the influence of alcoholic beverages or a narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle, as provided by Section 56-5-2930;
(3) any felony in the commission of which a motor vehicle is used, as provided by Section 56-1-280;
(4) failure to stop and render aid in the event of a motor vehicle accident resulting in the death or personal injury of another, as provided by Section 56-5-1210.
(B) As to other convictions, reported pursuant to Article 2, Chapter 1, Title 56, the licensing authority in the home state shall give such effect to the conduct as is provided by the laws of the home state. If the laws of a member state do not describe the violations listed in subsection (A) in precisely the words used in that subsection, the member state shall construe the descriptions to apply to offenses of the member state that are substantially similar to the ones described. A state that is a member of the Drivers License Compact shall report to another member state of the compact a conviction for any other offense or any other information concerning convictions that the member states agree to report.
(C) If the laws of a party state do not provide for offenses described in precisely the words employed in subsection (A) of this section, the party state shall construe the descriptions appearing in subsection (A) of the section as being applicable to those offenses of a substantially similar nature and the laws of the party state shall contain such provisions that are necessary to ensure that full force and effect is given to this article. For a conviction required to be reported under subsection (A), a member state shall give the same effect to the report as if the conviction had occurred in that state. For a conviction that is not required to be reported under subsection (A), the provisions of Section 56-1-320 shall govern the effect of the reported conviction in this State. For a conviction that is not required to be reported under subsection (A), notice of the conviction must be received by the department for purposes of suspension or revocation within one year of the date of conviction."
SECTION 256. Section 56-1-1320 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 56-1-1320. A person with a South Carolina driver's license, a person who had a South Carolina driver's license at the time of the offense referenced below, or a person exempted from the licensing requirements by Section 56-1-30, who is or has been convicted of a first offense violation of an ordinance of a municipality, or law of this State, that prohibits a person from operating a vehicle while under the influence of intoxicating liquor, drugs, or narcotics, and whose license is not presently suspended for any other reason, may apply to the motor vehicle division of the department Department of Revenue to obtain a provisional driver's license of a design to be determined by the department Department of Public Safety to operate a motor vehicle. The person shall enter an Alcohol and Drug Safety Action Program as provided for in Section 56-1-1330, shall furnish proof of responsibility as provided for in Section 56-1-1350, and shall pay to the department Department of Revenue a fee of five dollars for the provisional driver's license. The provisional driver's license is not valid for more than six months from the date of issue shown on the license. The determination of whether or not a provisional driver's license may be issued pursuant to the provisions of this article as well as reviews of cancellations or suspensions under Sections 56-1-370 and 56-1-820 must be made by the Director of the Department of Public Safety or his designee."
SECTION 257. Section 56-1-1330 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 56-1-1330. The provisional driver's license provision must include a mandatory requirement that the applicant enter an Alcohol and Drug Safety Action Program certified by the South Carolina Commission on Alcohol and Drug Abuse Department of Alcohol and Other Drug Abuse Services and be assessed to determine the extent and nature of an alcohol and drug abuse problem, if any, and successfully complete treatment or education services recommended by the program. The applicant shall bear the cost of the services which must be determined by the administering agency and approved by the South Carolina Commission on Alcohol and Drug Abuse Department of Alcohol and Other Drug Abuse Services. The cost may not exceed seventy-five dollars for assessment, one hundred twenty-five dollars for education services, two hundred twenty-five dollars for treatment services, and three hundred dollars in total for any and all services. The commission shall recommend subsequent cost changes on an annual basis subject to the approval of the General Assembly. If the applicant fails to complete successfully the services as directed by the Department of Public Safety, the South Carolina Commission on Alcohol and Drug Abuse Department of Alcohol and Other Drug Abuse Services shall notify the Department of Public Safety, and the provisional driver's license issued by the department must be revoked, and the suspension imposed for the full periods specified in Section 56-5-2990, the suspension to begin on date of notification to the individual."
SECTION 258. Section 56-1-2100(D) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(D) Within ten days after issuing a commercial driver license, the department Department of Public Safety must notify the Commercial Driver License Information System of that fact, providing all information required to insure ensure identification of the person."
SECTION 259. Section 56-3-1010(3) of the 1976 Code, as added by Section 90, Part II, Act 164 of 1993, is amended to read:
"(3) 'Department' means the South Carolina Department of Highways and Public Transportation Revenue."
SECTION 260. Article 13, Chapter 3, Title 56 of the 1976 Code is amended by adding:
"Section 56-3-1720. The Department of Revenue shall supply, at an appropriate fee, a special license plate for use on all law enforcement motor vehicles primarily operated by line law enforcement personnel of the Department of Public Safety. These plates shall bear the words "South Carolina," a number, and a prefix, 'HP' or 'TP', to designate respectively the highway patrol or transport police. The Department of Revenue shall not issue these prefixes for use on any motor vehicles except those operated by the Department of Public Safety."
SECTION 261. Section 56-5-2950(d) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(d) If a person under arrest refuses, upon the request of a law enforcement officer, to submit to chemical tests as provided in subsection (a) of this section, none may be given, but the department, on the basis of a report of the law enforcement officer that the arrested person was operating a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of them and that the person had refused to submit to the tests shall suspend his license or permit to drive, or any nonresident operating privilege for a period of ninety days. If the person is a resident without a license or permit to operate a motor vehicle in this State, the department shall deny to the person the issuance of a license or permit for a period of ninety days after the date of the alleged violation. The ninety-day period of suspension begins with the day after the date of the notice required to be given, unless a hearing is requested as provided, in which case the ninety-day period begins with the day after the date of the order sustaining the suspension or denial of issuance. The report of the arresting officer must include what grounds he had for believing that the arrested person had been operating a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of them. If the arrested person took the chemical breath test but refused to provide a blood or urine sample, the report of the arresting officer must include what were his grounds for believing that the arrested person was under the influence of drugs other than alcohol. If a person who refuses, upon the request of a law enforcement officer, to submit to chemical tests as provided in subsection (a) of this section, pleads guilty or nolo contendere to, or forfeits bond for a first offense violation of Section 56-5-2930, within thirty days of arrest, the period of the suspension of driving privileges under this section must be canceled and any suspension of driving privileges under Section 56-5-2990 for a first conviction may not exceed six months."
SECTION 262. Section 56-5-2990 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 56-5-2990. (A) The department shall suspend the driver's license of any a person who is convicted, receives sentence upon a plea of guilty or of nolo contendere, or forfeits bail posted for the violation of Section 56-5-2930 or for the violation of any other law or ordinance of this State or of any a municipality of this State that prohibits any a person from operating a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics for six months for the first conviction, plea of guilty or of nolo contendere, or forfeiture of bail, one year for the second conviction, plea of guilty or of nolo contendere, or forfeiture of bail, two years for the third offense, three years for the fourth offense, and a permanent revocation of the driver's license for fifth and subsequent offenses. Only those violations which occurred within ten years including and immediately preceding the date of the last violation shall constitute constitutes prior violations within the meaning of this section. Any A person whose license is revoked following conviction for a fifth offense as provided in this section is forever barred from being issued any a license by the Department of Revenue and Taxation to operate a motor vehicle.
(B) Any A person whose license is suspended under the provisions of this section must be notified of suspension by the department of the requirement to be evaluated by and successfully complete an Alcohol and Drug Safety Action Program certified by the South Carolina Commission on Alcohol and Drug Abuse Department of Alcohol and Other Drug Abuse Services prior to before reinstatement of the license. An assessment of the degree and kind of alcohol and drug abuse problem, if any, of the applicant must be prepared and a plan of education or treatment, or both, must be developed based upon the assessment. Entry into and successful completion of the services, if such the services are necessary, recommended in the plan of education or treatment, or both, developed for the applicant is a mandatory requirement of the restoration of driving privileges to the applicant. The applicant shall bear the cost of the services to be determined by the administering agency and approved by the Commission on Alcohol and Drug Abuse Department of Alcohol and Other Drug Abuse Services. The cost may not exceed seventy-five dollars for assessment, one hundred twenty-five dollars for education services, two hundred twenty-five dollars for treatment services, and three hundred dollars in total for any and all services. No applicant may be denied services due to an inability to pay. The applicant shall must be terminated from the Alcohol and Drug Safety Action Program no later than six months after the date of program enrollment. If the applicant has not successfully completed the services as directed by the Alcohol and Drug Safety Action Program by the end of the six-month period of enrollment, a hearing must be provided by the administering agency and if further needed by the Commission on Alcohol and Drug Abuse Department of Alcohol and Other Drug Abuse Services. If the applicant is unsuccessful in the Alcohol and Drug Safety Action Program the department may restore the privilege to operate a motor vehicle upon the recommendation of the Medical Advisory Board as utilized by the department if it determines public safety and welfare of the petitioner may not be endangered.
(C) The department and the Commission on Alcohol and Drug Abuse Department of Alcohol and Other Drug Abuse Services shall develop procedures necessary for the communication of information pertaining to relicensing or otherwise. Such These procedures must be consistent with the confidentiality laws of the State and the United States. Successful completion of education, treatment services, or both, for purposes of receiving a provisional driver's license as stipulated in Section 56-1-1330 may be substituted in lieu of services received under the authority of this section at the discretion of the applicant. If the driver's license of any a person is suspended by authority of this section, no insurance company may refuse to issue insurance to cover the remaining members of his family, but the insurance company is not liable for any actions of the person whose license has been suspended or who has voluntarily turned his license in to the department or the Department of Revenue and Taxation."
SECTION 263. The first paragraph of Section 56-5-4160(E) of the 1976 Code is amended to read:
"(E) Magistrates have jurisdiction of all contested violations of this section. All monies collected pursuant to Section 56-5-4160 must be forwarded to the department as provided for in this section. A magistrate, within forty-five days, must forward all monies collected to the department for deposit in the state general fund account established in this section. The department shall use these monies to establish and maintain an automated data base to collect, manage, and retain information required on the uniform size and weight citation, purchasing bases, to upgrade and refurbish existing weigh stations, to purchase portable scales, upgrading and refurbishing existing weigh stations, including adequate night lighting for enforcement activities, to hire additional other funded troopers or officers, to purchase equipment, and to procure other safety measures that the department considers necessary. The fine may be deposited with the arresting officer or a person the department may designate. The fine must be deposited in full or other arrangements satisfactory to the department for payment must be made before the operator is allowed to move the vehicle. If there is no conviction, the fine must be returned to the owner promptly."
SECTION 264. Section 56-5-5810(f) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(f) 'Director' means the Director of the Department of Revenue and Taxation Public Safety."
SECTION 265A. Section 56-10-240 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 56-10-240. If, during the period for which it is licensed, a motor vehicle is or becomes an uninsured motor vehicle, then the vehicle owner immediately shall obtain insurance on the vehicle or within five days after the effective date of cancellation or expiration of his liability insurance policy surrender the motor vehicle license plates and registration certificates issued for the motor vehicle. If five working days after the last day to pay an automobile liability insurance premium, whether it is the premium due date or a grace period that is granted customarily or contractually a motor vehicle is an uninsured motor vehicle, the insurer shall give written notice, or notice by magnetic or electronic media in a manner considered satisfactory to the department Department of Public Safety, within ten days after the five-day period ends, in addition to that notice previously given in accordance with law, by delivery under United States Post Office bulk certified mail, return receipt requested, to the department Department of Public Safety of the cancellation or refusal to renew under the following circumstances:
(1) the lapse or termination of such the insurance or security occurs within three months of issuance provided that. However, this subsection only applies to new policies, and not renewal or replacement policies; or
(2) the lapse or termination occurs after three months for a resident who fails one or more of the objective standards prescribed in Section 38-73-455.
The Department of Revenue and Taxation Public Safety, in its discretion, may authorize insurers to utilize alternative methods of providing notice of cancellation of or refusal to renew to the department Department of Public Safety. The Department of Revenue may not reissue registration certificates and license plates for that vehicle until satisfactory evidence has been filed by the owner or by the insurer who gave the cancellation or refusal to renew notice to the department Department of Public Safety that the vehicle is insured. Upon receiving information to the effect that a policy is canceled or otherwise terminated on a motor vehicle registered in South Carolina, the department Department of Public Safety shall suspend the license plates and registration certificate and shall initiate action as required within fifteen days of the notice of cancellation to pick up the license plates and registration certificate. A person who has had his license plates and registration certificate suspended by the department Department of Public Safety, but who at the time of suspension possesses liability insurance coverage sufficient to meet the financial responsibility requirements as set forth in this chapter, has the right to appeal the suspension immediately to the Director Chief Insurance Commissioner of the Department of Insurance. If the Director Chief Insurance Commissioner of the Department of Insurance determines that the person has sufficient liability insurance coverage, he shall notify the Department of Revenue and Taxation Department of Public Safety, and the suspension is voided immediately. The Department of Revenue and Taxation Department of Public Safety shall give notice by first class mail of the cancellation or suspension of registration privileges to the vehicle owner at his last known address. However, when license plates are surrendered pursuant to this section, they must be forwarded to the Department of Revenue and Taxation office in the county where the person who surrenders the plates resides.
If the vehicle owner unlawfully refuses to surrender the suspended items as required in this article, the department Department of Public Safety through its designated agents or by request to a county or municipal law enforcement agency may take possession of the suspended license plates and registration certificate and may not reissue the registration until proper proof of liability insurance coverage is provided and until the owner has paid a reinstatement fee of two hundred dollars for the first refusal under this section, and three hundred dollars for each subsequent refusal. A person who voluntarily surrenders his license plates and registration certificate before their suspension shall only must be charged only a reinstatement fee of five dollars.
A person wilfully failing to return his motor vehicle license plates and registration certificates as required in this section is guilty of a misdemeanor and, upon conviction, must be punished as follows:
(1) for a first offense, fined not less than one hundred dollars nor more than two hundred dollars or imprisoned for thirty days;
(2) for a second offense, fined two hundred dollars or imprisoned for thirty days, or both;
(3) for a third and subsequent offense, imprisoned for not less than forty-five days nor more than six months.
Only convictions which occurred within ten years including and immediately preceding the date of the last conviction constitute prior convictions within the meaning of this section."
SECTION 265B. Section 56-10-290 of the 1976 Code is amended by adding a sentence at the end to read:
"In accordance with the provisions of Section 38-73-470, a 'Law Enforcement Enhancement Account' is established in the Office of the State Treasurer for the purposes of paying for such expenses as may be associated with the cost of enforcing this chapter."
SECTION 266. Section 57-3-610 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 57-3-610. Whenever a road, bridge, or other highway facility is dedicated and named in honor of an individual by act or resolution of the General Assembly, the Department of Transportation must be reimbursed all expenses incurred by the department to implement the dedication.
Reimbursement for expenses incurred by the department must first be approved by a majority of each county legislative delegation the county transportation committee of the county in which the road, bridge, or facility is located. Reimbursement must be from the State Secondary "C" Apportionment Fund of the county or counties in which the road, bridge, or facility is located, and expenses under this section are limited to five hundred dollars. If the road, bridge, or facility is dedicated on an interstate highway, the allocation is limited to actual expenses.
Reimbursement for expenses incurred by the department to name and dedicate a highway facility pursuant to a request from other than the General Assembly must be by agreement between the requesting entity and the department."
SECTION 267. Section 57-5-1340 of the 1976 Code is amended to read:
"Section 57-5-1340. In addition to the powers listed above, the Department of Highways and Public Transportation may:
(1) request the issuance of turnpike bonds for the purpose of paying all or any part of the cost of any one or more turnpike projects;
(2) fix, and revise, from time to time and charge, and collect tolls for transit over each turnpike facility constructed by it;
(3) combine, for the purposes of financing the facilities, any two or more turnpike facilities;
(4) control access to turnpike facilities;
(5) expend, to the extent permitted by a bond resolution, expend turnpike facility or facilities revenues in advertising the facilities and services of the turnpike facility or facilities to the traveling public;
(6) receive and accept from any federal agency grants for or in the aid of the construction of any turnpike facility;
(7) establish a separate division to administer turnpike facilities and a separate turnpike facility account;
(8) do all acts and things necessary or convenient to carry out the powers expressly granted in this article."
SECTION 268. Section 57-25-150(H) of the 1976 Code, as last amended by Act 431 of 1994, is further amended to read:
"(H) National Historic Landmark Section 501(C)(3) properties located along South Carolina highways and properties listed on the National Register of Historic Places by the Department of the Interior which are located along South Carolina highways are allowed to erect small directional signs no more frequently than one a mile within six miles of such properties."
The signs shall must state the name of the historic property and mileage and comprise no more than twenty letters measuring no more than fifteen inches by thirty-six inches and painted using a single color or a neutral background.
The South Carolina Department of Highways and Public Transportation shall issue a permit sticker for each sign for an annual fee of fifteen dollars a sign. The department is also is authorized to issue regulations as are necessary to implement the permit process and the conditions and restrictions for the proper placement, height, and design as necessary to for the efficient administration of this subsection. The department has no responsibility for erecting these permitted signs."
SECTION 269. Section 57-25-470 of the 1976 Code is amended to read:
"Section 57-25-470. (A) The Department of Highways and Public Transportation may acquire by purchase, gift, or condemnation, and shall pay just compensation upon the removal of the following outdoor advertising signs, displays, and devices:
(1) those lawfully in existence on October 22, 1965;
(2) those lawfully erected on or after May 6, 1969.
(B) Compensation may be paid only for the following:
(1) the taking from the owner of a sign, display, or device of all right, title, leasehold, and interest in the sign, display, or device; and
(2) the taking from the owner of the real property on which the sign, display, or device is located, of the right to erect and maintain signs, displays, and devices."
SECTION 270. Section 57-25-680 of the 1976 Code is amended to read:
"Section 57-25-680. (A) The Department of Highways and Public Transportation may acquire by purchase, gift, or condemnation, and shall pay just compensation upon the removal of the following outdoor advertising signs, displays, and devices:
(1) those lawfully in existence on October 22, 1965;
(2) those lawfully erected on or after June 11, 1969.
(B) Compensation may be paid only for the following:
(1) the taking from the owner of the sign, display, or device of all right, title, leasehold, and interest in the sign, display, or device; and
(2) the taking from the owner of the real property on which the sign, display, or device is located, of the right to erect and maintain signs, displays, and devices."
SECTION 271. Section 57-27-70 of the 1976 Code is amended to read:
"Section 57-27-70. When the Department of Highways and Public Transportation determines that the topography of the land adjoining the highway does not permit adequate screening of a junkyard or the screening of the junkyard would not be economically feasible, the department may acquire by gift, purchase, exchange, or condemnation, such the interests in lands necessary to secure the relocation, removal, or disposal of the junkyards, and to pay for the costs of relocation, removal, or disposal. When the department determines that it is in the best interest of the State, it may acquire lands, or interests in lands, necessary to provide adequate screening of junkyards. The department may exercise the power of eminent domain whenever it is necessary, in the judgment of the department, to acquire lands, or interests therein in the land, by condemnation."
SECTION 272. Article 3, Chapter 3, Title 58 of the 1976 Code is amended to read:
Section 58-3-310. The law enforcement department of the Public Service Commission shall consist of such officers, inspectors, and agents as the commission may deem necessary and proper for the enforcement of the Motor Vehicle Carrier Law and other related laws, the enforcement of which is devolved upon the department. The title of such officers, inspectors and agents shall be 'Transportation Division Inspectors'. The inspectors shall be commissioned by the Governor upon the recommendation of the commission. The commission may remove an inspector if it finds that he is unfit for the position. The Department of Public Safety must appoint officers and inspectors as necessary and proper for the enforcement of the Motor Vehicle Carrier Safety Law and other related laws, the enforcement of which is devolved upon the Department of Public Safety, State Police Division.
Section 58-3-320. Each inspector of the law enforcement department of the Public Service Commission shall execute a bond with a licensed surety company in the amount of not less than ten thousand dollars. The bond shall be filed with the commission and shall be conditioned for the faithful performance of his duties, for the prompt and proper accounting of funds coming into his hands, and for the payment of any judgment rendered against him in any court of competent jurisdiction upon a cause of action arising out of breach or abuse of official duty or power and damages sustained by any member of the public from any unlawful act of the inspector. The coverage under the bond shall not include damage to persons or property arising out of the negligent operation of a motor vehicle. The bond may be individual, schedule or blanket, and shall be approved by the Attorney General. The premiums on the bonds shall be paid by the commission from appropriated funds. This provision shall not apply to the officers and inspectors of the Department of Public Safety, State Police Division.
Section 58-3-330. Before entering upon the duties of his office, each inspector of the law enforcement department of the Public Service Commission shall take and subscribe before a notary public, or other officer authorized to administer an oath, an oath to faithfully perform the duties of his office and to properly execute the laws of this State. This provision shall not apply to the officers and inspectors of the Department of Public Safety, State Police Division.
Section 58-3-340. The inspectors of the law enforcement department of the Public Service Commission shall possess and exercise all of the powers and authority held by constables at common law. This provision shall not apply to the officers and inspectors of the Department of Public Safety, State Police Division.
Section 58-3-350. When acting in their official capacity, inspectors of the law enforcement department of the Public Service Commission shall have statewide authority for the enforcement of all motor vehicle carrier laws and related laws. This provision shall not apply to the officers and inspectors of the Department of Public Safety, State Police Division.
Section 58-3-360. Inspectors of the law enforcement department of the Public Service Commission shall enforce the Motor Vehicle Carrier Law, and related laws, and officers and troopers of the Department of Public Safety, State Police Division shall enforce the Motor Vehicle Carrier Safety Law and related laws, and all inspectors, officers, and troopers of both departments shall insure ensure that all persons violating any provision of these laws are properly prosecuted.
Section 58-3-370. (A) When any a person is apprehended by an inspector of the law enforcement department of the Public Service Commission upon a charge of violating the Motor Vehicle Carrier Law or related laws, the following procedure shall be followed:
(1) The person being charged shall be served by the arresting inspector with an official summons and arrest report. The report shall give the appropriate judicial officer jurisdiction to dispose of the case.
(2) The person being charged may deposit with the arresting inspector a sum of money not to exceed one hundred dollars as bail in lieu of being immediately brought before the magistrate or other judicial officer; provided, that an official summons and arrest report may be issued without requiring any sum of money as bail.
(3) The official summons and arrest report shall indicate the amount of bail deposited with the inspector and shall serve as a receipt for the sum.
(4) The arresting inspector shall transmit any sum of money received from the person charged to the appropriate magistrate or other judicial officer.
(5) Upon receipt of the sum of money, if any is required, as bail, the arresting inspector may release the person charged so that he may appear before the proper judicial officer at a time and place stated in, and required by, the official summons and arrest report.
(B) When a person is apprehended by an inspector or an officer of the Department of Public Safety, State Police Division on a charge of violating the Motor Vehicle Carrier Safety Law or related laws, the procedure provided in Section 23-6-150 must be followed."
SECTION 273. Section 59-36-20 of the 1976 Code, as added by Act 86 of 1993, is amended to read:
"Section 59-36-20. The State Board of Education and the State Department of Education are responsible for establishing a comprehensive system of special education and related services and for ensuring that the requirements of the Federal Individuals with Disabilities Education Act are carried out. Other state agencies which provide services for children with disabilities are directed to cooperate in the establishment and support of the system. Agencies with responsibilities under this chapter include: the Department of Mental Retardation Disabilities and Special Needs, the School for the Deaf and the Blind, the Commission for the Blind, the Department of Health and Environmental Control, the Department of Mental Health, the State Department of Social Services, Continuum of Care Division in the Office of the Governor, and the State Department of Education.
All public education programs for children with disabilities within the State, including all programs administered by any other state or local agency, are under the general supervision of the persons responsible for education programs for children with disabilities in the State Department of Education and must meet the standards of the State Board of Education.
No provision of this section or of this chapter may be construed to limit the responsibilities of agencies other than the Department of Education from providing or paying for some or all of the cost of services to be provided the state's children with disabilities and the level of service must, at a minimum, must be similar to that provided individuals with similar needs. If agencies are unable to agree on responsibilities for a particular child, the issue must be decided by the Children's Case Resolution System, Section 20-7-5210, et seq."
SECTION 274. The next to the last paragraph of Section 59-53-20 of the 1976 Code is amended to read:
"The State Board for Technical and Comprehensive Education shall have the responsibility for developing and maintaining short and long-range plans for providing up-to-date and appropriate occupational and technical training for adults and shall coordinate its planning activities with the Economic Development Coordinating Council for Economic Development of the Department of Commerce, the State Council on Vocational-Technical Education, the Commission on Higher Education, the State Department of Education, the Employment Security Commission, and other state agencies, institutions, and departments."
SECTION 275. Section 59-63-31(1)(b) of the 1976 Code, as added by Act 163 of 1991, is amended to read:
"(b) a foster parent or in a residential community-based care facility licensed by the Department of Social Services or operated by the Department of Social Services or the Department of Youth Services Juvenile Justice; or"
SECTION 276. Section 59-65-30(f) of the 1976 Code, as last amended by Act 165 of 1993, is further amended to read:
"(f) A child who has reached the age of sixteen years and whose further attendance in school, vocational school, or available special classes is determined by a court of competent jurisdiction to be disruptive to the educational program of the school, unproductive of further learning, or not in the best interest of the child, and who is authorized by the court to enter into suitable gainful employment under the supervision of the court until age seventeen is attained. However, prior to before being exempted from the provisions of this article, the court first may first require that the child concerned be examined physically and tested mentally to assist the court to determine whether or not gainful employment would be more suitable for the child than continued attendance in school. The examination and testing must be conducted by the Department of Youth Services Juvenile Justice or by any a local agency which the court determines to be appropriate. The court shall revoke the exemption provided in this item upon a finding that the child fails to continue in his employment until reaching the age of seventeen years."
SECTION 277. The first paragraph of Section 59-67-535 of the 1976 Code is amended to read:
"Boats operated by the State Department of Education for transportation of school children from islands to mainland schools also may also be used to transport, on a space available basis only, any a South Carolina resident who is over fifty-five years of age or disabled or legally blind as defined in Section 43-25-20 of the 1976 Code. A person requesting boat transportation shall present his medicare card or other card approved by the South Carolina Commission Division on Aging of the Office of the Governor to the employee of the State Department of Education who is in charge of the particular boat, and a person who is disabled or legally blind shall present to such the person in charge of the boat a certificate to that effect from a licensed doctor of medicine or an official of an agency authorized by law to make determinations of disability or blindness."
SECTION 278. Section 59-111-20 of the 1976 Code, as last amended by Act 151 of 1993, is further amended to read:
"Section 59-111-20. (A) A child of a wartime veteran, upon application to and approval by the South Carolina Department of Veterans Office of the Governor, Division of Veterans' Affairs, may be admitted to any state-supported college, university, or post high school technical education institution free of tuition so long as his work and conduct is satisfactory to the governing body of the institution, if the veteran was a resident of this State at the time of entry into service and during service or has been a resident of this State for at least one year and still resides in this State or, if the veteran is deceased, resided in this State for one year before his death, and provided if the veteran served honorably in a branch of the military service of the United States during a war period, as those periods are defined by Section 101 of Title 38 of the United States Code and:
(1) was killed in action;
(2) died from other causes while in the service;
(3) died of disease or disability resulting from service;
(4) was a prisoner of war as defined by Congress or Presidential proclamation during such the war period;
(5) is permanently and totally disabled, as determined by the Veterans Administration from any cause;
(6) has been awarded the Congressional Medal of Honor;
(7) is missing in action; or
(8) the applicant is the child of a deceased veteran who qualified under items (4) and (5).
(B) The provisions of this section apply to a child of a veteran who meets the residency requirements of Chapter 112 of this title, is twenty-six years of age or younger, and is pursuing any type of undergraduate degree."
SECTION 279. Section 61-1-120 of the 1976 Code, as added by Act 112 of 1993, is amended to read:
"Section 61-1-120. A person desiring a license or permit under this title shall file with the commission department an application in writing on forms provided by the commission department containing a statement under oath setting forth:
(1) the name, address, date of birth, race, and nationality of the person applying for the license or permit;
(2) the exact location where the business is proposed to be operated;
(3) a description of the type of business to be operated;
(4) whether the applicant or an owner of the business has been involved in the sale of alcoholic liquors, beer, or wine in this or another state and whether he has had a license or permit suspended or revoked;
(5) other information required by the commission department to determine if the application meets all statutory requirements for the license or permit and to determine the true owners of the business seeking the license or permit."
SECTION 280. Section 61-1-125(C)of the 1976 Code, as added by Act 112 of 1993, is amended to read:
"(C) No license or permit may be issued by the commission department to a person under twenty-one years of age."
SECTION 281. Section 61-5-320 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 61-5-320. Prior to Before the use of the revenue described in Section 61-5-310, the governing body of each county shall:
(a) designate a single existing county agency or organization, either public or private, as the sole agency in the county for alcohol and drug abuse planning for programs funded by revenues allocated pursuant to Article 1 of this chapter or create a new agency for that purpose;
(b) develop a county plan in accordance with the state plan for alcohol abuse and alcoholism and the state plan for drug abuse required by Public Laws 91-616 and 92-255 for the prevention and control of alcohol and drug abuse and obtain written approval of such the plan by the South Carolina Commission on Alcoholism and the Commissioner of Narcotics and Controlled Substances Department of Alcohol and Other Drug Abuse Services. Such The written approval shall must be granted by the South Carolina Commission on Alcoholism and by the Commissioner of Narcotics and Controlled Substances Department of Alcohol and Other Drug Abuse Services if reasonable. In the event If approval is denied, an appeal may be taken to the Governor shall lie. Such The appeal shall must state fully state the reasons why it is made. Should If the Governor deem considers nonapproval of the plan by the South Carolina Commission on Alcoholism and the Commissioner of Narcotics and Controlled Substances Department of Alcohol and Other Drug Abuse Services to be unreasonable, he shall communicate his reasons to the Commission on Alcoholism and the Commissioner of Narcotics and Controlled Substances Department of Alcohol and Other Drug Abuse Services and require them it to reexamine such the plan in light of his objections. Following such the reexamination, no further appeal shall lie may be taken."
SECTION 282. Section 61-5-360 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 61-5-360. Each county governing body shall:
(a) establish such methods of administration as are necessary for the proper and efficient operation of the programs and services or projects, including the provision of annual reports of progress toward implementing county plans to the South Carolina Commission on Alcohol and Drug Abuse Department of Alcohol and Other Drug Abuse Services;
(b) provide for such accounting procedures as may be necessary to assure proper disbursement of and accounting for such the funds, including an annual audit of fiscal records, a copy of which shall must be furnished to the South Carolina Commission on Alcohol and Drug Abuse Department of Alcohol and Other Drug Abuse Services."
SECTION 283. Section 61-9-35 of the 1976 Code, as added by Act 112 of 1993, is amended to read:
"Section 61-9-35. A holder of a beer permit or a beer and wine permit may not purchase beer or wine, or both, on credit by a dishonored check, an unpaid note or invoice, or other insufficient manner from a permitted beer and wine wholesaler. However, no action may be taken against the holder for his first violation of this section. If a holder commits a second or subsequent violation, his retail dealer's permit may be suspended, canceled, or revoked by the Alcoholic Beverage Control Commission Department of Revenue or a monetary penalty of not more than twenty-five dollars may be assessed against him."
SECTION 284. Section 61-13-590 of the 1976 Code is amended to read:
"Section 61-13-590. No liquors so sold shall may be delivered within a period of five days after such the sale, during which time the Tax Commission department may, in its discretion, may reject any a bid and order the liquors resold until a satisfactory bid is had made. But However, if confiscated liquors are offered for sale, after advertisement, as herein provided in this chapter, on two different dates and no bids are made thereon, the liquors shall must be destroyed by the proper officers."
SECTION 285. Subsections (A) and (D), Section 1613 of Act 181 of 1993 are amended to read:
"SECTION 1613. (A) Where the provisions of this act transfer particular state agencies, departments, boards, commissions, committees or entities, or sections, divisions or portions thereof (transferring departments), to another state agency, department, division or entity or make them a part of another department or division (receiving departments), the employees, the personnel records of employees who are transferred, authorized appropriations, bonded indebtedness if applicable, and real and personal property of the transferring department are also transferred to and become part of the receiving department or division unless otherwise specifically provided. All classified or unclassified personnel of the affected agency, department, board, commission, committee, entity, section, division or position employed by these transferring departments on the effective date of this act, either by contract or by employment at will, shall become employees of the receiving department or division, with the same compensation, classification, and grade level, as applicable. The Budget and Control Board shall cause all necessary actions to be taken to accomplish this transfer and shall in consultation with the agency head of the transferring and receiving agencies prescribe the manner in which the transfer provided for in this section shall be accomplished. The boards' action in facilitating the provisions of this section are ministerial in nature and shall not be construed as an approval process over any of the transfers.
(D) Employees or personnel of agencies, departments, entities or public officials, or sections, divisions or portions thereof, transferred to or made a part of another agency, department, division, or official pursuant to the terms of this act shall continue to occupy the same office locations and facilities which they now occupy unless or until otherwise changed by appropriate action and authorization. The rent and physical plant operating costs of these offices and facilities, if any, shall continue to be paid by the transferring agency, department, entity or official formerly employing these personnel until otherwise provided by the General Assembly. The records and files of the agencies which formerly employed these personnel shall continue to remain the property of these transferring agencies, except that these personnel shall have complete access to these records and files in the performance of their duties as new employees of the receiving agency. The personnel record of an employee who is transferred shall become the property of the receiving agency to which the employee has been transferred."
SECTION 286. Section 1618 of Act 181 of 1993 is amended to read:
"SECTION 1618. (A) Article 1 of Chapter 1 of Title 13, Chapter 1 of Title 55, Chapter 1 of Title 61, Chapter 3 of Title 43, Chapter 3 of Title 61, Article 5 of Chapter 1 of Title 31, Chapter 5 of Title 55, Chapter 5 of Title 61, Article 7 of Chapter 1 of Title 31, Chapter 7 of Title 61, Chapter 9 of Title 55, Chapter 9 of Title 61, Chapter 11 of Title 25, and Sections 1-3-210, 1-3-220, 1-3-240, 1-3-250, 1-15-10, 1-20-50(c), 1-20-50(B)(5), 1-23-120(G)(3), 1-23-310, 1-23-320, 1-25-60(A), 2-7-71, 2-7-105, 2-13-190, 2-13-240, 2-15-61, 2-17-15, 2-19-30, 2-19-70, 2-67-10, 2-67-30, 4-9-155, 4-10-25, 4-10-60, 4-10-80, 4-10-90, 4-29-67, 5-3-90, 5-3-110, 5-3-300, 5-7-110, 5-27-510, 7-13-710, 8-1-80, 8-1-100, 8-11-10, 8-11-945, 8-13-910, 8-17-370, 8-21-310(20)(A), 8-21-770(B), 8-21-780, 8-21-790, 9-1-60, 9-11-180, 10-7-10, 10-11-80, 11-9-820, 11-9-825, 11-11-10, 11-17-10(a), 11-35-45(B), 11-35-710, 11-35-1520(12), 11-35-5230(B)(4), 11-35-5250(2), 11-35-5270, 12-2-10, 12-4-10, 12-4-30, 12-4-335, 12-4-350, 12-4-370, 12-7-455, 12-7-460, 12-7-1220, 12-7-1250, 12-7-1590, 12-7-2010, 12-7-2230, 12-7-2590, 12-7-2610, 12-9-130, 12-9-310, 12-9-420, 12-9-630, 12-9-860, 12-13-70, 12-16-1110, 12-19-20, 12-19-60, 12-19-100, 12-21-100, 12-21-320, 12-21-470, 12-21-660, 12-21-780, 12-21-820, 12-21-1060, 12-21-1110, 12-21-1320, 12-21-1540, 12-21-1550, 12-21-1570, 12-21-1580, 12-21-1590, 12-21-1610, 12-21-1840, 12-21-2420, 12-21-2719, 12-21-2720, 12-21-2726, 12-21-3320, 12-21-3441, 12-21-3590, 12-21-3600, 12-23-815, 12-23-820, 12-23-830, 12-27-270, 12-27-380, 12-27-390, 12-27-405, 12-27-430, 12-27-1210, 12-27-1220, 12-27-1230, 12-27-1240, 12-27-1250, 12-27-1260, 12-27-1290, 12-27-1320, 12-27-1510, 12-29-20, 12-29-110, 12-29-150, 12-31-20, 12-31-50, 12-31-210, 12-31-230, 12-31-240, 12-31-250, 12-31-260, 12-31-270, 12-31-280, 12-31-420, 12-31-610, 12-31-620, 12-31-640, 12-33-70, 12-33-420, 12-33-480, 12-33-485, 12-33-620, 12-33-630, 12-35-560, 12-36-1370, 12-36-1710, 12-36-2120, 12-36-2660, 12-37-220, 12-37-380, 12-37-970, 12-37-975, 12-37-1120, 12-37-1130, 12-37-1410, 12-37-1420, 12-37-1610, 12-37-2110, 12-37-2410, 12-37-2650, 12-37-2660, 12-37-2670, 12-37-2680, 12-37-2700, 12-37-2725, 12-37-2727, 12-39-180, 12-43-210, 12-43-220, 12-43-280, 12-43-300, 12-43-305, 12-43-320, 12-43-335, 12-45-70, 12-47-10, 12-47-60, 12-49-90, 12-49-271, 12-49-290, 12-51-135, 12-53-10, 12-53-210, 12-53-220, 12-54-10, 12-54-230, 12-54-240, 12-54-250, 12-54-260, 12-54-420, 12-54-430, 12-54-720, 13-7-20, 13-7-70(4), 13-7-160, 13-11-80, 13-19-160, 14-7-130, 14-23-1140, 15-9-210(b), 15-9-350, 15-9-360, 15-9-370, 15-9-380, 15-9-390, 15-9-410, 16-3-1110, 16-3-1120, 16-11-340, 19-5-30, 20-7-121, 20-7-128, 20-7-410, 20-7-600, 20-7-630, 20-7-655(B), 20-7-770, 20-7-780, 20-7-1330, 20-7-1490, 20-7-1645, 20-7-2095, 20-7-2115, 20-7-2125, 20-7-2155, 20-7-2170, 20-7-2175, 20-7-2180, 20-7-2185, 20-7-2190, 20-7-2195, 20-7-2200, 20-7-2203, 20-7-2205, 20-7-2260, 20-7-2310, 20-7-2379, 20-7-2700, 20-7-2760, 20-7-2830, 20-7-2880, 20-7-2930, 20-7-2940, 20-7-3050, 20-7-3100, 20-7-3110, 20-7-3120, 20-7-3130, 20-7-3170, 20-7-3180, 20-7-3190, 20-7-3200, 20-7-3210, 20-7-3230, 20-7-3235, 20-7-3240, 20-7-3270, 20-7-3280, 20-7-3300, 20-7-3310, 20-7-3350, 20-7-3360, 20-7-5420, 20-7-5610, 20-7-5630, 20-7-5660, 20-7-5670, 22-1-30, 23-3-10, 23-3-20, 23-3-160, 23-25-20, 23-25-40, 23-31-140, 23-33-20, 23-35-70, 23-41-30(f), 23-41-30(c), 24-1-40, 24-1-90, 24-1-100, 24-1-110, 24-1-120, 24-1-130, 24-1-140, 24-1-145, 24-1-150, 24-1-160, 24-1-170, 24-1-200, 24-1-210, 24-1-220, 24-1-230, 24-1-250, 24-1-260, 24-1-270, 24-3-20, 24-3-30, 24-3-40, 24-3-60, 24-3-70, 24-3-80, 24-3-90, 24-3-110, 24-3-130(A), 24-3-131, 24-3-140, 24-3-150, 24-3-160, 24-3-170, 24-3-180, 24-3-190, 24-3-200, 24-3-210, 24-3-315, 24-3-320, 24-3-330, 24-3-340, 24-3-360, 24-3-380, 24-3-390, 24-3-400, 24-3-410(C), 24-3-510, 24-3-520, 24-3-530, 24-3-540, 24-3-550, 24-3-710, 24-3-720, 24-3-730, 24-3-740, 24-3-750, 24-3-760, 24-3-920, 24-3-950, 24-3-960, 24-7-90, 24-9-10, 24-9-20, 24-9-30, 24-11-30, 24-13-210(c), 24-13-230(A), 24-13-270, 24-13-640, 24-13-710, 24-13-940, 24-13-1310(3), 24-13-1320, 24-13-1330(B) and (C), 24-13-1340(B), 24-13-1520(1) and (2), 24-13-1590, 24-19-10(C), 24-19-20, 24-19-30, 24-19-40, 24-19-60, 24-19-80, 24-19-90, 24-19-100, 24-19-110, 24-19-160, 24-21-10, 24-21-11, 24-21-12, 24-21-13, 24-21-60, 24-21-70, 24-21-220, 24-21-221, 24-21-230, 24-21-250, 24-21-260, 24-21-280, 24-21-290, 24-21-485, 24-21-620, 24-21-645, 24-21-650, 24-21-930, 24-22-20(a), 24-22-160, 24-23-40, 24-23-110, 24-23-115, 24-23-220, 24-25-40, 24-25-50, 24-25-70, 27-18-20(1), 30-4-40(a)(10), 31-1-30, 31-1-120, 31-1-140, 31-1-150, 31-1-160, 31-1-200, 31-1-210, 31-1-220, 31-3-20(1), 31-3-340, 31-3-370, 31-3-390, 31-3-750, 31-17-340, 31-17-360, 31-17-370, 31-17-510(g), 33-1-210, 33-14-200, 33-14-220(a), 33-14-400, 33-15-300(a)(1) and (b), 33-15-310(c), 33-15-330(A)(4), 33-16-101(e)(7), 33-31-60, 33-37-250(10), 36-9-307, 36-9-319, 38-1-10, 38-77-113, 38-77-1120(a), 39-9-230, 39-15-170, 39-41-40, 39-43-160, 39-57-20, 41-41-40, 41-44-60, 41-44-80, 42-1-490, 42-1-500, 42-7-10, 42-7-20, 42-7-30, 42-7-40, 42-7-70, 42-7-75, 42-7-90, 42-7-200, 42-7-310, 43-1-10, 43-1-50, 43-1-60, 43-1-70, 43-1-170, 43-1-190, 43-1-200, 43-1-210, 43-5-10, 43-5-75, 43-5-120, 43-5-150, 43-5-170, 43-5-220, 43-5-550(f), 43-5-550(h)(5), 43-5-620, 43-21-10, 43-21-20, 43-21-40, 43-21-50, 43-21-60, 43-21-70, 43-21-80, 43-21-100, 43-21-120, 43-21-130, 43-21-150, 43-21-160, 43-21-170, 43-21-180, 44-9-20, 44-9-30, 44-9-40, 44-9-50, 44-9-60, 44-9-160, 44-15-60, 44-15-80, 44-20-10, 44-20-20, 44-20-30, 44-20-210, 44-20-220, 44-20-230, 44-20-240, 44-20-250, 44-20-260, 44-20-270, 44-20-280, 44-20-290, 44-20-300, 44-20-310, 44-20-320, 44-20-330, 44-20-340, 44-20-350, 44-20-360, 44-20-370, 44-20-375, 44-20-378, 44-20-380, 44-20-385, 44-20-390, 44-20-400, 44-20-410, 44-20-420, 44-20-430, 44-20-440, 44-20-450, 44-20-460, 44-20-470, 44-20-480, 44-20-490, 44-20-500, 44-20-510, 44-20-710, 44-20-720, 44-20-730, 44-20-740, 44-20-750, 44-20-760, 44-20-770, 44-20-780, 44-20-790, 44-20-800, 44-20-900, 44-20-1000, 44-20-1110, 44-20-1120, 44-20-1130, 44-20-1140, 44-20-1150, 44-20-1160, 44-20-1170, 44-22-10, 44-22-50, 44-22-100, 44-22-110, 44-23-10, 44-23-210, 44-23-220, 44-23-410, 44-25-30, 44-26-10, 44-26-70, 44-26-80, 44-26-120, 44-26-170, 44-28-20, 44-28-40, 44-28-60, 44-28-80, 44-28-360, 44-28-370, 44-36-20, 44-38-30, 44-38-310, 44-38-320, 44-38-330, 44-38-340, 44-38-350, 44-38-360, 44-38-370, 44-38-380, 44-38-390, 44-43-30, 44-43-50, 44-43-70, 44-49-10, 44-49-20, 44-49-30, 44-49-40, 44-49-50, 44-49-60, 44-49-70, 44-49-80, 44-52-10, 44-53-710, 44-53-740, 44-63-110, 44-96-60, 44-96-120, 44-96-140, 44-96-160, 44-96-170(L) and (M), 44-96-180, 44-96-200, 44-96-220, 44-107-80, 46-13-60(2)(c), 48-30-30(A)(5), 48-30-50, 48-30-70, 48-30-80, 48-47-175(B), 49-29-210, Article 1, Chapter 1, Title 51, 51-11-10, 51-11-15, 51-11-20, 51-11-30, 51-11-40, 51-11-50, 51-11-60, 51-19-10, 55-8-10(a), 55-8-50(a)(2), 55-8-170, 55-11-10(5), 55-11-520, 55-15-10(f), 56-1-10, 56-1-80, 56-1-90, 56-1-135, 56-1-145, 56-1-220, 56-1-225, 56-1-270, 56-1-280, 56-1-290, 56-1-300, 56-1-310, 56-1-320, 56-1-330, 56-1-340, 56-1-350, 56-1-360, 56-1-365, 56-1-370, 56-1-380, 56-1-390, 56-1-400, 56-1-410, 56-1-420, 56-1-460, 56-1-463, 56-1-475, 56-1-510, 56-1-520, 56-1-530, 56-1-540, 56-1-550, 56-1-630, 56-1-740, 56-1-745, 56-1-746, 56-1-770, 56-1-790, 56-1-800, 56-1-810, 56-1-820, 56-1-830, 56-1-840, 56-1-850, 56-1-1020, 56-1-1030, 56-1-1090, 56-1-1100, 56-1-1120, 56-1-1130, 56-1-1320, 56-1-1330, 56-1-1340, 56-1-1730, 56-1-1760, 56-1-2050, 56-1-2100, 56-1-2110, 56-1-2130, 56-1-2140, 56-1-3350, 56-1-3360, 56-1-3370, 56-1-3380, 56-1-3390, 56-1-3400, 56-3-20, 56-3-115, 56-3-250, 56-3-255, 56-3-360, 56-3-650, 56-3-790, 56-3-860, 56-3-910, 56-3-1150, 56-3-1160, 56-3-1330, 56-3-1340, 56-3-1710, 56-3-1750, 56-3-1850, 56-3-1910, 56-3-1950, 56-3-1960, 56-3-1971, 56-3-1972, 56-3-1973, 56-3-1974, 56-3-2010, 56-3-2020, 56-3-2060, 56-3-2150, 56-3-2210, 56-3-2230, 56-3-2250, 56-3-2320, 56-3-2600, 56-3-2710, 56-3-2810, 56-3-3310, 56-3-3710, 56-3-4310, 56-3-4910, 56-3-5920, 56-5-60, 56-5-370, 56-5-910, 56-5-920, 56-5-930, 56-5-935, 56-5-1520, 56-5-1530, 56-5-1540, 56-5-1560, 56-5-1570, 56-5-1890, 56-5-1910, 56-5-1980, 56-5-2120, 56-5-2330, 56-5-2540, 56-5-2550, 56-5-2585, 56-5-2715, 56-5-2730, 56-5-2945, 56-5-2950, 56-5-2990, 56-5-3660, 56-5-3670, 56-5-3680, 56-5-3690, 56-5-3750, 56-5-3880, 56-5-4040, 56-5-4060, 56-5-4070, 56-5-4075, 56-5-4095, 56-5-4140, 56-5-4145, 56-5-4150, 56-5-4160(E), 56-5-4170, 56-5-4175, 56-5-4180, 56-5-4185, 56-5-4190, 56-5-4200, 56-5-4205, 56-5-4210, 56-5-4220, 56-5-4720, 56-5-4840, 56-5-4880, 56-5-4940, 56-5-5010, 56-5-5320, 56-5-5330, 56-5-5340, 56-5-5350, 56-5-5360, 56-5-5400, 56-5-5410, 56-5-5420, 56-5-5430, 56-5-5670, 56-5-5810, 56-5-5830, 56-5-5850, 56-5-5860, 56-5-5870, 56-5-6140, 56-7-10, 56-7-20, 56-7-30, 56-7-50, 56-9-20, 56-10-10, 56-10-20, 56-10-40, 56-10-45, 56-10-210, 56-10-220, 56-10-240, 56-10-245, 56-10-280, 56-10-290, 56-15-10, 56-15-50, 56-15-320, 56-16-10, 56-16-20, 56-16-110, 56-16-150, 56-19-10, 56-19-80, 56-19-390, 56-19-425, 56-23-10, 56-23-40, 56-23-70, 56-23-85, 56-25-10, 56-27-10, 56-29-20, 56-29-50, 56-31-50, 57-1-10, 57-1-20, 57-1-30, 57-1-40, 57-1-45, 57-1-50, 57-1-60, 57-1-70, 57-1-80, 57-1-90, 57-1-100, 57-1-110, 57-1-140, 57-3-10, 57-3-20, 57-3-30, 57-3-35, 57-3-40, 57-3-50, 57-3-610, 57-3-620, 57-3-630, 57-3-640, 57-3-650, 57-3-660, 57-3-670, 57-3-680, 57-3-690, 57-3-700, 57-3-710, 57-3-720, 57-3-730, 57-3-750, 57-3-760, 57-3-770, 57-5-10, 57-5-20, 57-5-30, 57-5-40, 57-5-50, 57-5-60, 57-5-70, 57-5-80, 57-5-90, 57-5-100, 57-5-110, 57-5-120, 57-5-130, 57-5-140, 57-5-150, 57-5-160, 57-5-170, 57-5-180, 57-5-190, 57-5-310, 57-5-320, 57-5-330, 57-5-340, 57-5-350, 57-5-370, 57-5-380, 57-5-540, 57-5-550, 57-5-570, 57-5-580, 57-5-590, 57-5-600, 57-5-710, 57-5-720, 57-5-760, 57-5-1010, 57-5-1320, 57-5-1350, 57-5-1450, 57-5-1610, 57-5-1620, 57-5-1630, 57-5-1660, 57-11-210, 57-11-220, 57-11-240, 57-11-250, 57-11-270, 57-11-280, 57-11-290, 57-11-300, 57-11-320, 57-11-330, 57-11-340, 57-11-360, 57-11-370, 57-11-380, 57-11-390, 57-13-10, 57-13-40, 57-13-130, 57-15-140, 57-23-10, 57-23-20, 57-23-110, 57-23-120, 57-23-210, 57-23-220, 57-23-300, 57-23-310, 57-23-350, 57-23-360, 57-23-400, 57-23-410, 57-23-420, 57-23-500, 57-23-510, 57-23-520, 57-23-600, 57-23-610, 57-23-620, 57-23-700, 57-23-710, 57-23-720, 57-25-110, 57-25-120, 57-25-130, 57-25-140, 57-25-150, 57-25-155, 57-25-160, 57-25-170, 57-25-180, 57-25-185, 57-25-190, 57-25-195, 57-25-200, 57-25-210, 57-25-220, 57-25-430, 57-25-440, 57-25-460, 57-25-480, 57-25-490, 57-25-640, 57-25-650, 57-25-670, 57-25-690, 57-25-700, 57-27-20, 57-27-90, 58-1-30, 58-1-40, 58-3-20, 58-3-24, 58-3-100, 58-12-130, 58-15-1625, 58-15-1650, 58-15-1680, 58-15-1910, 58-15-1920, 58-15-1930, 58-15-1940, 58-15-1950, 58-15-2120, 58-15-2130, 58-17-1450, 58-23-1220, 58-25-80, 58-27-690, 58-35-50, 59-20-20(3), 59-53-10, 59-53-420(14), 59-54-40, 59-67-20, 59-67-260, 59-67-540, 59-67-570, 59-117-90, 59-137-50(B), 61-13-295, 61-13-410, 61-13-470, 61-13-500, 61-13-510, 61-13-540, 61-13-570, 61-13-620, 61-13-630, 61-13-750, 61-13-810, 61-13-835, 61-13-836, 61-13-875, 61-13-885, 62-3-203, 62-3-301, 62-3-704, 62-3-706, 62-3-1002, and 62-5-105, as amended by this act, are effective July 1, 1993.
(B) Chapter 28 of Title 40, Chapter 65 of Title 40, and Sections 6-9-60, 10-5-230, 10-5-240, 10-5-270, 10-5-300, 10-5-320, 10-9-320, 10-11-50, 23-9-10, 23-9-60, 23-9-65, 23-9-70, 23-9-155, 23-9-210, 23-10-10, 23-35-140, 23-36-160, 23-43-20, 23-43-70, 23-43-110, 23-43-140, 40-1-140, 40-1-310, 40-1-350, 40-3-40, 40-3-120, 40-3-135, 40-3-140, 40-6-40, 40-6-45, 40-6-180, 40-6-220, 40-7-60, 40-7-270, 40-9-30, 40-9-31, 40-9-36, 40-9-95, 40-11-40, 40-11-60, 40-11-90, 40-11-150, 40-11-180, 40-11-190, 40-11-300, 40-11-320, 40-11-350, 40-13-60, 40-13-80, 40-13-260, 40-13-300, 40-15-40, 40-15-50, 40-15-185, 40-15-200, 40-15-210, 40-15-215, 40-15-370, 40-15-380, 40-19-10, 40-19-70, 40-19-80, 40-19-160, 40-19-170, 40-22-150, 40-22-420, 40-22-440, 40-23-40, 40-23-127, 40-29-20, 40-29-50, 40-29-100, 40-29-110, 40-29-160, 40-29-210, 40-33-250, 40-33-931, 40-33-960, 40-35-70, 40-35-135, 40-36-160, 40-37-50, 40-37-230, 40-38-60, 40-38-230, 40-43-135, 40-43-260, 40-43-410, 40-45-260, 40-47-170, 40-47-200, 40-47-210, 40-47-570, 40-47-630, 40-47-660, 40-51-160, 40-55-140, 40-55-160, 40-56-10, 40-56-20, 40-57-170, 40-57-220, 40-59-50, 40-59-60, 40-59-90, 40-59-95, 40-59-130, 40-60-160, 40-60-170, 40-60-210, 40-61-40, 40-61-110, 40-63-10, 40-63-30, 40-63-120, 40-67-100, 40-67-170, 40-69-70, 40-69-150, 40-69-210, 40-69-420, 40-75-40, 40-75-180, 40-77-100, 40-77-110, 40-77-320, 41-1-10, 41-3-10, 41-3-30, 41-3-40, 41-3-50, 41-3-55, 41-3-60, 41-3-70, 41-3-80, 41-3-100, 41-3-110, 41-3-120, 41-3-130, 41-3-140, 41-3-510, 41-3-520, 41-3-530, 41-3-540, 41-15-600, 41-15-610, 41-15-620, 41-18-90, 48-27-70, 48-27-200, 52-7-15, 52-7-20, and 52-7-30, as amended by this act, are effective February 1, 1994.
(C) Sections 23-9-150, 23-9-170, 23-9-180, 23-36-80, 23-43-180, and 54-15-320, as amended by this act, are effective March 1, 1994.
(D) SECTION 344 is effective October 1, 1993.
(E) Chapter 3 of Title 50, Chapter 4 of Title 49, Article 5 of Chapter 9 of Title 48, Chapter 5 of Title 49, Chapter 5 of Title 50, Chapter 6 of Title 49, Article 7 of Chapter 9 of Title 48, Chapter 7 of Title 50, Article 9 of Chapter 9 of Title 48, Chapter 9 of Title 50, Chapter 11 of Title 50, Chapter 11 of Title 49, Chapter 13 of Title 50, Chapter 15 of Title 50, Chapter 16 of Title 50, Chapter 17 of Title 50, Chapter 18 of Title 48, Chapter 19 of Title 50, Chapter 20 of Title 50, Chapter 21 of Title 50, Chapter 21 of Title 49, Chapter 23 of Title 49, Chapter 23 of Title 50, Chapter 25 of Title 49, Chapter 25 of Title 50, Chapter 29 of Title 49, Chapter 39 of Title 48, Chapter 43 of Title 48, and Sections 1-1-110, 1-23-110, 1-23-115, 1-23-130, 1-23-160, 1-23-380, 2-22-20, 3-3-210, 3-5-40, 3-5-50, 3-5-60, 3-5-80, 3-5-100, 3-5-120, 3-5-130, 3-5-140, 3-5-150, 3-5-160, 3-5-170, 3-5-190, 3-5-320, 3-5-330, 3-5-340, 3-5-360, 11-37-200(A), 12-7-1225, 12-7-2415, 15-9-415, 16-23-20(1), 16-27-60, 16-27-80, 23-23-30, 23-28-120, 27-31-100(f), 40-23-20, 44-1-50, 44-1-100, 44-3-110, 44-3-150, 44-29-210, 44-30-10, 44-30-20, 44-40-30, 44-53-620, 44-53-630, 44-53-640, 44-53-650, 44-53-660, 44-53-1320, 44-53-1340, 44-53-1360, 44-53-1380, 44-53-1390, 44-53-1430, 44-53-1440, 44-53-1450, 44-53-1470, 44-55-20, 44-55-40, 44-55-45, 44-55-60, 44-55-2320, 44-55-2360, 44-56-20, 44-56-50, 44-56-130, 44-56-840, 44-61-70, 44-63-30, 44-65-80, 44-67-30, 44-67-50, 44-85-30, 44-85-50, 44-93-20, 44-93-50, 44-93-130, 44-96-170(O)(8), 44-96-250, 44-96-280, 46-13-150, 46-51-20, 47-3-310, 47-3-320, 47-3-420, 47-3-510, 47-3-550, 48-1-85(C), 48-1-110, 48-9-30(3), 48-9-40, 48-9-260, 48-9-270, 48-9-280, 48-9-290, 48-9-300, 48-9-310, 48-9-320, 48-9-1210, 48-9-1230, 48-9-1320, 48-9-1810, 48-9-1820, 48-9-1840, 48-9-1850, 48-11-10, 48-11-15, 48-11-90, 48-11-100, 48-11-185(D), 48-11-190(C), 48-11-210(D), Items (1)(4) and (6) of 48-14-20, 48-14-40(F), 48-14-50, 48-14-60, 48-14-70, 48-14-80, 48-14-85, 48-14-90, 48-14-110, 48-14-120, 48-14-130A(7), 48-14-140, 48-14-160, 48-14-170, 48-20-30, 48-20-40(3), 48-20-210, 48-20-270, 48-20-280, 48-45-40, 48-45-80, 48-55-10, 49-1-15, 49-27-10, 49-27-70, 49-27-80, 50-1-10, 50-1-20, 50-1-30, 50-1-40, 50-1-60, 50-1-70, 50-1-80, 50-1-85, 50-1-90, 50-1-95, 50-1-100, 50-1-110, 50-1-120, 50-1-125, 50-1-130, 50-1-135, 50-1-136, 50-1-137, 50-1-140, 50-1-150, 50-1-160, 50-1-170, 50-1-180, 50-1-190, 50-1-200, 50-1-210, 50-1-220, 50-1-230, 50-1-240, 50-1-250, 50-1-260, 50-1-270, 50-18-10(5), 51-3-145, 51-3-160, 51-15-540, 57-5-870 and 58-3-140 58-33-140 as amended by this act, are effective July 1, 1994.
(F) Sections 44-1-20, 44-1-40, and 48-20-110, as amended by this act, are effective February 1, 1995.
(G) Article 1, Chapter 27, Title 38, Article Articles 1 and 3, Chapter 79, Title 38, Chapter 3, Title 38, Article 3, Chapter 27, Title 38, Chapter 5, Title 38, Article 5, Chapter 37, Title 38, Article 5 of Chapter 75 of Title 38, Chapter 7 of Title 38, Chapter 9 of Title 38, Article 9 of Chapter 77 of Title 38, Chapter 11 of Title 38, Chapter 13 of Title 38, Article 13 of Chapter 37 of Title 38, Chapter 26 of Title 38, Chapter 29 of Title 38, Chapter 31 of Title 38, Chapter 33 of Title 38, Chapter 39 of Title 38, Chapter 41 of Title 38, Chapter 45 of Title 38, Chapter 47 of Title 38, Chapter 61 of Title 38, Chapter 73 of Title 38, Chapter 81 of Title 38, Chapter 83 of Title 38, Chapter 89 of Title 38, and Sections 2-7-73(A), 2-23-10, 8-13-740(A)(2)(c), 8-13-740(A)(6)(c), 12-23-310, 15-9-270, 15-9-280(c), 15-9-280(a), 15-9-280(d), 15-9-310, 17-13-80, 20-7-2640, 23-9-90, 33-37-460(3)(b), 33-39-460(3)(b), 34-29-160, 37-6-605, 38-1-20, 38-2-10, 38-15-10, 38-15-20, 38-15-30, 38-15-50, 38-17-30, 38-17-50, 38-17-60, 38-17-70, 38-17-90, 38-17-120, 38-17-140, 38-17-150, 38-17-170, 38-19-40, 38-19-50, 38-19-440, 38-19-470, 38-19-480, 38-19-490, 38-19-610, 38-19-640, 38-19-650, 38-19-825, 38-21-10(2), 38-21-20(11), 38-21-30(3), 38-21-50, 38-21-60, 38-21-70, 38-21-90, 38-21-100, 38-21-110, 38-21-120, 38-21-125, 38-21-130, 38-21-140, 38-21-160, 38-21-170, 38-21-190, 38-21-200, 38-21-210, 38-21-220, 38-21-240, 38-21-250, 38-21-260, 38-21-270, 38-21-280, 38-21-290, 38-21-300, 38-21-310, 38-21-320, 38-21-330, 38-21-340, 38-21-350, 38-21-370, 38-23-20, 38-23-40, 38-23-50, 38-23-70, 38-23-80, 38-23-100, 38-25-10, 38-25-110, 38-25-160, 38-25-310, 38-25-510, 38- 25-520, 38-25-540, 38-25-550, 38-25-570, 38-27-310, 38-27-320, 38-27-330(a), 38-27-350, 38-27-360, 38-27-370, 38-27-390, 38-27-400, 38-27-410, 38-27-500(e), 38-27-520, 38-27-640, 38-27-660, 38-27-670, 38-27-680, 38-27-910(a), 38-27-920, 38-27-930(b), 38-27-940(a), 38-27-950, 38-35-10, 38-35-40, 38-35-50, 38-37-60, 38-37-220, 38-37-230, 38-37-240, 38-37-250, 38-37-260, 38-37-300, 38-37-710, 38-37-720, 38-37-900, 38-37-910, 38-37-920, 38-37-1310, 38-37-1360, 38-43-20, 38-43-30, 38-43-40, 38-43-70, 38-43-100, 38-43-105, 38-43-106, 38-43-110, 38-43-130, 38-43-230, 38-43-250, 38-43-260, 38-44-30, 38-44-40(4), 38-44-50, 38-44-70, 38-44-80, 38-46-20(10)(c), 38-46-30, 38-46-60, 38-46-70, 38-46-90, 38-46-100, 38-46-110, 38-46-120, 38-49-20, 38-51-20, 38-51-30, 38-51-60, 38-53-10(11), 38-53-20, 38-53-80, 38-53-90, 38-53-100, 38-53-110, 38-53-130, 38-53-140, 38-53-150, 38-53-160, 38-53-170(f), 38-53-200, 38-53-210, 38-53-220, 38-53-230, 38-53-310, 38-53-320, 38-55-20, 38-55-40, 38-55-60, 38-55-80, 38-55-120, 38-55-140, 38-55-180, 38-57-150(2), 38-57-200, 38-57-210, 38-57-220, 38-57-230, 38-57-240, 38-57-250, 38-57-260, 38-57-270, 38-57-280, 38-57-290, 38-57-300, 38-57-310, 38-59-30, 38-63-220(n), 38-63-250(a), 38-63-520, 38-63-580, 38-63-590, 38-63-600(8) and (11), 38-63-610, 38-63-650, 38-65-60, 38-65-210, 38-67-10(c),(d), and (f), 38-67-30, 38-67-40, 38-69-120(11), 38-69-230, 38-69-320, 38-70-10(4) and (5), 38-70-20, 38-70-30, 38-70-40, 38-70-50, 38-70-60, 38-71-70, 38-71-190, 38-71-310, 38-71-315, 38-71-320, 38-71-325, 38-71-330(7), 38-71-335(B), 38-71-340, 38-71-370, 38-71-410, 38-71-510, 38-71-530, 38-71-540, 38-71-550(a) 38-71-550(b), 38-71-720, 38-71-730(6), 38-71-735, 38-71-750, 38-71-920(6),(11)(c), and (12), 38-71-950(B), 38-71-970, 38-71-980, 38-71-1010(6), 38-71-1020, 38-71-1110, 38-72-40, 38-72-60(A), (C)(3), and (F)(1)(a), 38-74-10(13), 38-74-20, 38-74-60(C)(2), 38-74-70, 38-75-230, 38-75-750(a)(5), 38-75-780, 38-75-930, 38-75-940, 38-75-950, 38-75-960, 38-75-980, 38-77-10(1), 38-77-30(12), 38-77-110(A), 38-77-115, 38-77-120, 38-77-150, 38-77-200, 38-77-260, 38-77-280, 38-77-320, 38-77-330, 38-77-350(A), 38-77-520, 38-77-530, 38-77-570, 38-77-580, 38-77-590(a),(b),(e),(f), and (g), 38-77-600, 38-77-610, 38-79-430, 38-85-70, 38-85-80, 38-87-20(1), (8)(h), and (11)(c)(ii), 38-87-30, 38-87-40, 38-87-50(D), 38-87-80, 38-87-110, 38-87-140, 44-2-75, 44-6-5, 44-6-10, 44-6-30, 44-6-40, 44-6-45, 44-6-50, 44-6-70, 44-6-80, 44-6-90, 44-6-100, 44-6-140, 44-6-146, 44-6-150, 44-6-155, 44-6-160, 44-6-170, 44-6-180, 44-6-190, 44-6-220, 44-6-300, 44-6-310, 44-6-320, 44-6-400, 44-6-410, 44-6-420, 44-6-430, 44-6-440, 44-6-460, 44-6-470, 44-6-500, 44-6-520, 44-6-530, and 59-53-2050, as amended by this act, are effective July 1, 1995.
(H) Articles 3, 5, 7, 9, and 11 of Chapter 1 of Title 13, Chapter 2 of Title 13, Chapter 6 of Title 23, Article 5 of Chapter 23 of Title 1, Chapter 30 of Title 1, and Sections 1-3-215, 2-47-60, 2-68-50, 12-2-5, 12-4-15, 12-4-400, 12-4-410, 12-27-35, 12-27-1265, 23-3-15, 23-3-25, 44-20-225, 51-1-300, 51-1-310, 51-1-500, 51-1-510, 56-1-3350, 56-1-3360, 56-1-3370, 56-1-3380, 56-1-3390, 56-1-3400, 56-3-4710, 56-3-4720, 56-3-4730, 56-3-4740, 56-5-4160(H), 57-1-310, 57-1-320, 57-1-325, 57-1-330, 57-1-340, 57-1-350, 57-1-410, 57-1-430, 57-1-440, 57-1-450, 57-1-490, 57-3-110, 57-3-120, 57-3-600, 57-3-780, and 58-3-26, as added by this act, are effective July 1, 1993.
(I) Sections 40-73-15 and 41-3-610, as added by this act, are effective February 1, 1994.
(J) Chapter 4 of Title 48, Chapter 22 of Title 48, and Sections 1-23-111, 47-5-30, 48-9-15, 48-9-45, 49-1-16, and 50-1-5, as added by this act, are effective July 1, 1994.
(K) Section 38-1-30, as added by this act, is effective July 1, 1995.
(L) SECTIONS 99A, 253A, 343(B), 345, 495, 784, 785, 786, 787, 813A, 815, 996, 997, 1143, 1179, 1226, 1243, 1281, 1436, 1437, 1543, 1544, 1545, 1546, 1581, 1601, 1604, 1605, 1612, 1613, 1614, 1615, 1616, 1617 and 1618 are effective July 1, 1993.
(M) Section 345 is effective February 1, 1994.
(N) SECTIONS 99B, 253B, 1144, 1180, 1227, 1244, 1273, and 1282 are effective July 1, 1994.
(O) SECTIONS 496, 502, 813B, 816, 1145, and 1587 are effective July 1, 1995."
SECTION 287. References in Titles 20 and 43 of the 1976 Code to the Director of the Department of Social Services mean the State Director of the Department of Social Services so as to distinguish the State Director from County Directors. References in Titles 20 and 43 of the 1976 Code to State Commissioner or Commissioner of the Department of Social Services mean the State Director of the Department of Social Services. The Code Commissioner shall change references in the 1976 Code to conform to this act and such changes must be included in the next printing of replacement volumes or cumulative supplements.
SECTION 288. References in the the 1976 Code to the Director of the Department of Insurance mean the Chief Insurance Commissioner and references to the deputy director of the Department of Insurance mean the designee of the Chief Insurance Commissioner. The Code Commissioner shall change references in the 1976 Code to conform with this act, and such changes must be included in the next printing of replacement volumes or cumulative supplements.
SECTION 289. References in the 1976 Code to the Board of Probation, Parole and Pardon Services mean Board of Paroles and Pardons. The Code Commissioner shall change references in the 1976 Code to conform to this act, and such changes must be included in the next printing of replacement volumes or cumulative supplements.
SECTION 290. References in the 1976 Code to Department of Revenue and Taxation mean Department of Revenue. The Code Commissioner shall change references in the 1976 Code to conform to this act, and such changes must be included in the next printing of replacement volumes or cumulative supplements.
SECTION 291. References in the 1976 Code to the Commissioner of Labor or Commissioner of the Department of Labor mean the Director of the Department of Labor, Licensing, and Regulation. The Code Commissioner shall change references in the 1976 Code to conform with this act, and such changes must be included in the next printing of replacement volumes or cumulative supplements.
SECTION 292. (A) Chapter 19 of Title 6, Chapter 61 of Title 40, Sections 41-15-310, 43-21-150, 44-6-60, 48-9-230, 49-5-130, 49-21-80, and Chapter 17 of Title 51 are repealed upon approval by the Governor.
(B) Chapter 5 of Title 12 is repealed effective February 1, 1995.
(C) Sections 43-21-120 and 43-21-140 are repealed effective July 1, 1995.
SECTION 293. Section 14-1-205 of the 1976 Code, as last amended by Section 36A, Part II, Act 497 of 1994, is further amended to read:
"Section 14-1-205. Except as provided in Sections 17-15-260, 34-11-90, 50-1-150, 50-1-170, and 56-5-4160, on January 1, 1995, 56 percent of all costs, fees, fines, penalties, forfeitures, and other revenues generated by the circuit courts and the family courts must be remitted to the county in which the proceeding is instituted and 44 percent of the revenues must be delivered to the county treasurer to be remitted monthly by the fifteenth day of each month to the State Treasurer on forms and in a manner prescribed by him. When a payment is made to the county in installments, the state's portion must be remitted to the State Treasurer by the county treasurer on a monthly basis. The 44 percent remitted to the State Treasurer must be deposited as follows:
(1) 72.93 66.93 percent to the general fund;
(2) 6.00 percent to the Law Enforcement Enhancement Account;
(3) 16.73 percent to the Department of Mental Health to be used exclusively for the treatment and rehabilitation of drug addicts within the department's addiction center facilities;
(3) (4) 10.34 percent to the State Office of Victim Assistance under the South Carolina Victim's Compensation Fund.
The Law Enforcement Enhancement Account must be maintained in the State Treasurer's Office. In expending the funds deposited to the Law Enforcement Enhancement Account, the Director of the Department of Public Safety must consider the need for (1) additional other funded troopers and officers, (2) pay shift differential for troopers and officers, and (3) continuing education and training for troopers and officers. Any unexpended balance on June 30 of the prior fiscal year may be retained and carried forward to the current fiscal year.
In any court, when sentencing a person convicted of an offense which has proximately caused physical injury or death to the victim, the court may order the defendant to pay a restitution charge commensurate with the offense committed, not to exceed ten thousand dollars, to the Victim's Compensation Fund."
SECTION 294. Section 17-5-130 of the 1976 Code, as last amended by Act 307 of 1994, is further amended to read:
"Section 17-5-130. (A) A coroner in this State must have the following qualifications:
(1) be a citizen of the United States;
(2) be a resident of the county in which he seeks the office of coroner for at least one year before qualifying for the election to the office;
(3) be a registered voter;
(4) attained the age of twenty-one years before the date of qualifying for election to the office;
(5) obtained a high school diploma or its recognized equivalent; and
(6) have not been convicted of a felony offense or any offense involving moral turpitude contrary to the laws of this State, any other state, or the United States.
(B) Each person serving as a coroner in his first term is required to complete a basic training session to be determined by the South Carolina Law Enforcement Training Council (council) Director of the South Carolina Department of Public Safety (director). This basic training session must be completed no later than the end of the calendar year following his election as coroner. A person appointed to fill the unexpired term in the office of coroner must complete a basic training session to be determined by the council director within one calendar year of the date of appointment. This section shall not be construed to require an individual to repeat the basic training session if he has successfully completed the session prior to his election or appointment as coroner. A coroner who is unable to attend this training session when offered because of an emergency or extenuating circumstances shall, within one year from the date the disability or cause terminates, complete the standard basic training session required of coroners. A coroner who does not fulfill the obligations of this subsection is subject to suspension by the Governor until the coroner completes the training session.
(C) A person holding the office of coroner or deputy coroner who was elected, appointed, or employed prior to January 1, 1994, and who has served continuously since that time must attend a minimum of sixteen hours training annually as may be selected determined by the council director on or before December 31, 1995. Each year thereafter, all coroners and deputy coroners must complete a minimum of sixteen hours training annually as may be selected by the council director. Certification or records of attendance or training shall be maintained as directed by the council Department of Public Safety.
(D)(1) The basis for the minimum annual requirement of in-service training is the calendar year. A coroner who satisfactorily completes the basic training session in accordance with the provisions of subsection (B) is excused from the minimum annual training requirements of subsection (C) for the calendar year in which the basic training session is completed.
(2) The Board of Directors of the South Carolina Coroners Association, in its discretion, may grant a waiver of the requirements of the annual in-service training upon presentation of evidence by a coroner that he was unable to complete the training due to an emergency or extenuating circumstances.
(3) A coroner who fails to complete the minimum annual in-service training required by this section may be suspended from office, without pay, by the Governor for ninety days. The Governor may continue to suspend a coroner until he completes the annual minimum in-service training required in this section. The Governor shall appoint, at the time of the coroner's suspension, a qualified person to perform as acting coroner during the suspension.
(E) The provisions of items (4) and (5) of subsection (A) do not apply to a coroner serving on the effective date of this section.
(F) The South Carolina Law Enforcement Training Council director must appoint a Coroners Training Advisory Committee to assist in the determination of training requirements for coroners and deputy coroners. The committee shall consist of no fewer than five coroners and at least one physician trained in forensic pathology as recommended by the South Carolina Coroners Association. The members of the committee shall serve without compensation.
(G) Expenses of all training authorized or required by this section must be paid by the county the coroner or deputy coroner serves, and the South Carolina Law Enforcement Training Council Department of Public Safety is authorized to set and collect fees for such training."
SECTION 295. Section 40-65-40, as last amended by Act No. 181 of 1993, is further amended to read:
"Section 40-65-40. Each member of the advisory council may receive twenty-five dollars an amount as provided for in the annual General Appropriations Act for each day actually engaged in the services of the department and shall be reimbursed for all actual travelling, incidental, and clerical expenses necessarily incurred in carrying out the provisions of this chapter. These expenses shall be paid from general appropriations of the department."
SECTION 296. Section 40-65-60, as last amended by Act No. 181 of 1993, is further amended to read:
"Section 40-65-60. The advisory council shall hold at least two regular meetings each year. Special meetings may be held as the bylaws of the council provide. The council shall elect annually a chairman and a vice-chairman. The chief soil scientist, SCLRCC State Soil Scientist, SCDNR, shall serve as secretary-treasurer of the council. A quorum of the council shall consist of three members."
SECTION 297. Section 44-1-40 of the 1976 Code, as amended by Act No. 181 of 1993 and as becomes effective February 1, 1995, is further amended to read:
"Section 44-1-40. The board shall select a director commissioner for the department who shall serve a four-year term and who shall have such authority and perform such duties as may be directed by the board. The salary of the director commissioner shall be fixed by the board, upon approval of the State Budget and Control Board. For any vacancy occurring in the office of director commissioner on or after February 1, 1995, the board, after consultation with and approval by the Governor, must submit the name of its appointee to the Senate for the Senate's advice and consent. On or after February 1, 1995, the board may remove a director commissioner only after consultation with and approval by the Governor."
SECTION 298. Section 44-53-710 of the 1976 Code is amended to read:
"Section 44-53-710. The South Carolina Department of Health and Environmental Control shall have exclusive control over the controlled substance methadone, except for the South Carolina Department of Mental Health facilities or treatment programs licensed by the South Carolina Department of Mental Health and approved by the South Carolina Department of Alcohol and Other Drug Abuse Services or the federal government."
SECTION 299. Section 44-53-730 of the 1976 Code is amended to read:
"Section 44-53-730. No supplier, distributor, or manufacturer shall sell or distribute methadone or its salts to anyone other than a facility licensed by the Department of Health and Environmental Control or the South Carolina Department of Mental Health, except as provided in Section 44-53-720."
SECTION 300. Section 44-53-740 of the 1976 Code is amended to read:
"Section 44-53-740. The Board of Health and Environmental Control shall promulgate regulations as may be necessary to carry out the provisions of this article in coordination with the Department of Alcohol and Other Drug Abuse Services. Such These regulations shall not include criteria for admission to, continuance in, or discharge from any methadone maintenance program in a facility of the South Carolina Department of Mental Health or facility licensed by the South Carolina Department of Mental Health and approved by the South Carolina Department of Alcohol and Other Drug Abuse Services or the federal government."
SECTION 301. References in the 1976 Code to the Director of the Department of Health and Environmental Control mean the Commissioner of the Department of Health and Environmental Control. The Code Commissioner shall change references in the 1976 Code to conform with this act, and such changes must be included in the next printing of replacement volumes or cumulative supplements.
SECTION 302. Title 36 of the 1976 Code is amended by adding:
In the spring of 1995, the South Carolina Senate Judiciary Committee requested the South Carolina Law Institute to appoint a committee (the "Committee") to evaluate the impact of proposed uniform Article 4A on South Carolina law and to assist the Senate Judiciary Committee in considering Article 4A for adoption in South Carolina. The Committee was comprised of lawyers, professors, bankers, corporate users of wire transfer services, and a representative of the Office of the Consumer Advocate. The Reporter and a research assistant provided support to the Committee. After review of the uniform statute and the Official Comments thereto, versions of Article 4A adopted by other states, South Carolina statutory and common law, and scholarly commentary, the Committee unanimously recommended that South Carolina adopt the uniform version of Article 4A.
Uniformity Of Article 4A.
Funds transfers are effected across state lines and often through different funds transfer systems. If participants in a funds transfer are to be certain of their obligations and liabilities, uniformity of funds transfer rules is imperative.
Virtually all jurisdictions have adopted Article 4A without change from the proposed uniform statute. The Committee reviewed all non-uniform provisions enacted by other states and determined that most of the provisions were not substantive. The Committee found no reason to vary Article 4A from the uniform version and accordingly recommended that South Carolina adopt the uniform version of Article 4A.
Like other Articles in the Uniform Commercial Code, the uniform version of Article 4A includes "Official Comments" addressing the purpose and meaning of the various sections and the policy considerations on which they are based. Because the Official Comments provide information of high value in interpreting and understanding Article 4A, the Committee recommended that they be included as part of South Carolina's Article 4A legislation. The majority of adopting states have done likewise. Only Oklahoma, one of the first states to enact Article 4A, adopted comprehensive state reporter's comments in addition to the Official Comments. See OKLA. STAT. ANN. tit. 12A Section 4A (West Supp. 1995). In order to avoid any implication of non-uniformity that might be raised by the content of Reporter's Comments, the Committee decided to include South Carolina Reporter's Comments only after sections which call for comment.
The Impact Of Article 4A On South Carolina Law.
At the time of the Committee's deliberations, no South Carolina statutory or case law dealt with funds transfers. Very few published opinions from other jurisdictions were available. Prior to the general enactment of Article 4A, courts decided funds transfer cases using various common law principles, or by analogy to Article 4 of the U.C.C. As a result, pre-Article 4A case law provides little guidance as to how a court would likely decide a funds transfer issue. For a discussion of how cases decided prior to the enactment of Article 4A might have been decided, see OKLA. STAT. ANN. tit. 12A, Section 4A (West Supp. 1995); Tony M. Davis, Comparing Article 4A with Existing Case Law on Funds Transfers: A Series of Case Studies, 42 ALA. L. REV. 823 (1991).
The enactment of Article 4A in South Carolina, although important to clarify national uniformity in regulation of funds transfers, should work little practical change in South Carolina law for two reasons. First, for funds transfer issues arising after 1989, it is likely that a South Carolina court would have looked to Article 4A for guidance. See, Manufacturas Int'l Ltda. v. Manufacturers Hanover Trust Co., 792 F.Supp. 180 (E.D.N.Y. 1992) (declining to apply Article 4A but discussing its provisions by analogy). Second, South Carolina banks using Fedwire as a funds transfer system have operated under Article 4A since January 1, 1991. Regulation J, which governs funds transfers through Fedwire, and which incorporated Article 4A as of that date, preempts inconsistent state law.[1]
[1] Note, however, that not all parties to a Fedwire are governed by Regulation J and therefore, by Article 4A. Specifically, Regulation J applies to parties in privity with a Reserve Bank, beneficiaries that maintain or use an account at a Reserve Bank, and other parties in a funds transfer that have notice of the use of Fedwire and of the applicability of Regulation J to Fedwire. 12 C.F.R. Section 210.25(b)(2)(1992).
The National Conference of Commissioners on Uniform State laws and The American Law Institute have approved a new Article 4A to the Uniform Commercial Code. Comments that follow each of the sections of the statute are intended as official comments. They explain in detail the purpose and meaning of the various sections and the policy considerations on which they are based.
Description of transaction covered by Article 4A.
There are a number of mechanisms for making payments through the banking system. Most of these mechanisms are covered in whole or part by state or federal statutes. In terms of number of transactions, payments made by check or credit card are the most common payment methods. Payment by check is covered by Articles 3 and 4 of the UCC, and some aspects of payment by credit card are covered by federal law. In recent years electronic funds transfers have been increasingly common in consumer transactions. For example, in some cases a retail customer can pay for purchases by use of an access or debit card inserted in a terminal at the retail store that allows the bank account of the customer to be instantly debited. Some aspects of these point-of-sale transactions and other consumer payments that are effected electronically are covered by a federal statute, the Electronic Fund Transfer Act (EFTA). If any part of a funds transfer is covered by EFTA, the entire funds transfer is excluded from Article 4A.
Another type of payment, commonly referred to as a wholesale wire transfer, is the primary focus of Article 4A. Payments that are covered by Article 4A are overwhelmingly between business or financial institutions. The dollar volume of payments made by wire transfer far exceeds the dollar volume of payments made by other means. The volume of payments by wire transfer over the two principal wire payment systems -- the Federal Reserve wire transfer network (Fedwire) and the New York Clearing House Interbank Payments Systems (CHIPS) -- exceeds one trillion dollars per day. Most payments carried out by use of automated clearing houses are consumer payments covered by EFTA and therefore not covered by Article 4A. There is, however, a significant volume of non-consumer ACH payments that closely resemble wholesale wire transfers. These payments are also covered by Article 4A.
There is some resemblance between payments made by wire transfer and payments made by other means such as paper-based checks and credit cards or electronically-based consumer payments, but there are also many differences. Article 4A excludes from its coverage these other payment mechanisms. Article 4A follows a policy of treating the transaction that it covers--a "funds transfer"--as a unique method of payment that is governed by unique principles of law that address the operational and policy issues presented by this kind of payment.
The funds transfer that is covered by Article 4A is not a complex transaction and can be illustrated by the following example which is used throughout the Prefatory Note as a basis for discussion. X, a debtor, wants to pay an obligation owed to Y. Instead of delivering to Y a negotiable instrument such as a check or some other writing such as a credit card slip that enables Y to obtain payment from a bank, X transmits an instruction to X's bank to credit a sum of money to the bank account of Y. In most cases X's bank and Y's bank are different banks. X's bank may carry out X's instruction by instructing Y's bank to credit Y's account in the amount that X requested. The instruction that X issues to its bank is a "payment order." X is the "sender" of the payment order and X's bank is the "receiving bank" with respect to X's order. Y is the "beneficiary" of X's order. When X's bank issues an instruction to Y's bank to carry out X's payment order, X's bank "executes" X's order. The instruction of X's bank to Y's bank is also a payment order. With respect to that order, X's bank is the sender, Y's bank is the receiving bank, and Y is the beneficiary. The entire series of transactions by which X pays Y is known as the "funds transfer." With respect to the funds transfer, X is the "originator," X's bank is the "originator's bank," Y is the "beneficiary" and Y's bank is the "beneficiary's bank." In more complex transactions there are one or more additional banks known as "intermediary banks" between X's bank and Y's bank. In the funds transfer the instruction contained in the payment order of X to its bank is carried out by a series of payment orders by each bank in the transmission chain to the next bank in the chain until Y's bank receives a payment order to make the credit to Y's account. In most cases, the payment order of each bank to the next bank in the chain is transmitted electronically, and often the payment order of X to its bank is also transmitted electronically, but the means of transmission does not have any legal significance. A payment order may be transmitted by any means, and in some cases the payment order is transmitted by a slow means such as first class mail. To reflect this fact, the broader term "funds transfer" rather than the narrower term "wire transfer" is used in Article 4A to describe the overall payment transaction.
Funds transfers are divided into two categories determined by whether the instruction to pay is given by the person making payment or the person receiving payment. If the instruction is given by the person making the payment, the transfer is commonly referred to as a "credit transfer." If the instruction is given by the person receiving payment, the transfer is commonly referred to as a "debit transfer." Article 4A governs credit transfers and excludes debit transfers.
Why is Article 4A needed?
There is no comprehensive body of law that defines the rights and obligations that arise from wire transfers. Some aspects of wire transfers are governed by rules of the principal transfer systems. Transfers made by Fedwire are governed by Federal Reserve Regulation J and transfers over CHIPS are governed by the CHIPS rules. Transfers made by means of automated clearing houses are governed by uniform rules adopted by various associations of banks in various parts of the nation or by Federal Reserve rules or operating circulars. But the various funds transfer system rules apply to only limited aspects of wire transfer transactions. The resolution of the many issues that are not covered by funds transfer system rules depends on contracts of the parties, to the extent that they exist, or principles of law applicable to other payment mechanisms that might be applied by analogy. The result is a great deal of uncertainty. There is no consensus about the juridical nature of a wire transfer and consequently of the rights and obligations that are created. Article 4A is intended to provide the comprehensive body of law that we do not have today.
Characteristics of a funds transfer.
There are a number of characteristics of funds transfers covered by Article 4A that have influenced the drafting of the statute. The typical funds transfer involves a large amount of money. Multimillion dollar transactions are commonplace. The originator of the transfer and the beneficiary are typically sophisticated business or financial organizations. High speed is another predominant characteristic. Most funds transfers are completed on the same day, even in complex transactions in which there are several intermediary banks in the transmission chain. A funds transfer is a highly efficient substitute for payments made by the delivery of paper instruments. Another characteristic is extremely low cost. A transfer that involves many millions of dollars can be made for a price of a few dollars. Price does not normally vary very much or at all with the amount of the transfer. This system of pricing may not be feasible if the bank is exposed to very large liabilities in connection with the transaction. The pricing system assumes that the price reflects primarily the cost of the mechanical operation performed by the bank, but in fact, a bank may have more or less potential liability with respect to a funds transfer depending upon the amount of the transfer. Risk of loss to banks carrying out a funds transfer may arise from a variety of causes. In some funds transfers, there may be extensions of very large amounts of credit for short periods of time by the banks that carry out a funds transfer. If a payment order is issued to the beneficiary's bank, it is normal for the bank to release funds to the beneficiary immediately. Sometimes, payment to the beneficiary's bank by the bank that issued the order to the beneficiary's bank is delayed until the end of the day. If that payment is not received because of the insolvency of the bank that is obliged to pay, the beneficiary's bank may suffer a loss. There is also risk of loss if a bank fails to execute the payment order of a customer, or if the order is executed late. There also may be an error in the payment order issued by a bank that is executing the payment order of its customer. For example, the error might relate to the amount to be paid or to the identity of the person to be paid. Because the dollar amounts involved in funds transfers are so large, the risk of loss if something goes wrong in a transaction may also be very large. A major policy issue in the drafting of Article 4A is that of determining how risk of loss is to be allocated given the price structure in the industry.
Concept of acceptance and effect of acceptance by the beneficiary's bank.
Rights and obligations under Article 4A arise as the result of "acceptance" of a payment order by the bank to which the order is addressed. Section 4A-209. The effect of acceptance varies depending upon whether the payment order is issued to the beneficiary's bank or to a bank other than the beneficiary's bank. Acceptance by the beneficiary's bank is particularly important because it defines when the beneficiary's bank becomes obligated to the beneficiary to pay the amount of the payment order. Although Article 4A follows convention in using the term "funds transfer" to identify the payment from X to Y that is described above, no money or property right of X is actually transferred to Y. X pays Y by causing Y's bank to become indebted to Y in the amount of the payment. This debt arises when Y's bank accepts the payment order that X's bank issued to Y's bank to execute X's order. If the funds transfer was carried out by use of one or more intermediary banks between X's bank and Y's bank, Y's bank becomes indebted to Y when Y's bank accepts the payment order issued to it by an intermediary bank. The funds transfer is completed when this debt is incurred. Acceptance, the event that determines when the debt of Y's bank to Y arises, occurs (i) when Y's bank pays Y or notifies Y of receipt of the payment order, or (ii) when Y's bank receives payment from the bank that issued a payment order to Y's bank.
The only obligation of the beneficiary's bank that results from acceptance of a payment order is to pay the amount of the order to the beneficiary. No obligation is owed to either the sender of the payment order accepted by the beneficiary's bank or to the originator of the funds transfer. The obligation created by acceptance by the beneficiary's bank is for the benefit of the beneficiary. The purpose of the sender's payment order is to effect payment by the originator to the beneficiary and that purpose is achieved when the beneficiary's bank accepts the payment order. Section 4A-405 states rules for determining when the obligation of the beneficiary's bank to the beneficiary has been paid.
Acceptance by a bank other than the beneficiary's bank.
In the funds transfer described above, what is the obligation of X's bank when it receives X's payment order? Funds transfers by a bank on behalf of its customer are made pursuant to an agreement or arrangement that may or may not be reduced to a formal document signed by the parties. It is probably true that in most cases there is either no express agreement or the agreement addresses only some aspects of the transaction. Substantial risk is involved in funds transfers and a bank may not be willing to give this service to all customers, and may not be willing to offer it to any customer unless certain safeguards against loss such as security procedures are in effect. Funds transfers often involve the giving of credit by the receiving bank to the customer, and that also may involve an agreement. These considerations are reflected in Article 4A by the principle that, in the absence of a contrary agreement, a receiving bank does not incur liability with respect to a payment order until it accepts it. If X and X's bank in the hypothetical case had an agreement that obliged the bank to act on X's payment orders and the bank failed to comply with the agreement, the bank can be held liable for breach of the agreement. But apart from any obligation arising by agreement, the bank does not incur any liability with respect to X's payment order until the bank accepts the order. X's payment order is treated by Article 4A as a request by X to the bank to take action that will cause X's payment order to be carried out. That request can be accepted by X's bank by "executing" X's payment order. Execution occurs when X's bank sends a payment order to Y's bank intended by X's bank to carry out the payment order of X. X's bank could also execute X's payment order by issuing a payment order to an intermediary bank instructing the intermediary bank to instruct Y's bank to make the credit to Y's account. In that case execution and acceptance of X's order occur when the payment order of X's bank is sent to the intermediary bank. When X's bank executes X's payment order the bank is entitled to receive payment from X and may debit an authorized account of X. If X's bank does not execute X's order and the amount of the order is covered by a withdrawable credit balance in X's authorized account, the bank must pay X interest on the money represented by X's order unless X is given prompt notice of rejection of the order. Section 4A-210(b).
Bank error in funds transfers.
If a bank, other than the beneficiary's bank, accepts a payment order, the obligations and liabilities are owed to the originator of the funds transfer. Assume in the example stated above, that X's bank executes X's payment order by issuing a payment order to an intermediary bank that executes the order of X's bank by issuing a payment order to Y's bank. The obligations of X's bank with respect to execution are owed to X. The obligations of the intermediary bank with respect to execution are also owed to X. Section 4A-302 states standards with respect to the time and manner of execution of payment orders. Section 4A-305 states the measure of damages for improper execution. It also states that a receiving bank is liable for damages if it fails to execute a payment order that it was obliged by express agreement to execute. In each case consequential damages are not recoverable unless an express agreement of the receiving bank provides for them. The policy basis for this limitation is discussed in Comment 2 to Section 4A-305.
Error in the consummation of a funds transfer is not uncommon. There may be a discrepancy in the amount that the originator orders to be paid to the beneficiary and the amount that the beneficiary's bank is ordered to pay. For example, if the originator's payment order instructs payment of $100,000 and the payment order of the originator's bank instructs payment of $1,000,000, the originator's bank is entitled to receive only $100,000 from the originator and has the burden of recovering the additional $900,000 paid to the beneficiary by mistake. In some cases, the originator's bank or an intermediary bank instructs payment to a beneficiary other than the beneficiary stated in the originator's payment order. If the wrong beneficiary is paid, the bank that issued the erroneous payment order is not entitled to receive payment of the payment order that it executed and has the burden of recovering the mistaken payment. The originator is not obliged to pay its payment order. Section 4A-303 and Section 4A-207 state rules for determining the rights and obligations of the various parties to the funds transfer in these cases and in other typical cases in which error is made.
Pursuant to Section 4A-402(c) the originator is excused from the obligation to pay the originator's bank if the funds transfer is not completed, i.e. payment by the originator to the beneficiary is not made. Payment by the originator to the beneficiary occurs when the beneficiary's bank accepts a payment order for the benefit of the beneficiary of the originator's payment order. Section 4A-406. If for any reason that acceptance does not occur, the originator is not required to pay the payment order that it issued or, if it already paid, is entitled to refund of the payment with interest. This "money-back guarantee" is an important protection of the originator of a funds transfer. The same rule applies to any other sender in the funds transfer. Each sender's obligation to pay is excused if the beneficiary's bank does not accept a payment order for the benefit of the beneficiary of that sender's order. There is an important exception to this rule. It is common practice for the originator of a funds transfer to designate the intermediary bank or banks through which the funds transfer is to be routed. The originator's bank is required by Section 4A-302 to follow the instruction of the originator with respect to intermediary banks. If the originator's bank sends a payment order to the intermediary bank designated in the originator's order and the intermediary bank causes the funds transfer to miscarry by failing to execute the payment order or by instructing payment to the wrong beneficiary, the originator's bank is not required to pay its payment order and if it has already paid it is entitled to recover payment from the intermediary bank. This remedy is normally adequate, but if the originator's bank has already paid its order and the intermediary bank has suspended payments or is not permitted by law to refund payment, the originator's bank will suffer a loss. Since the originator required the originator's bank to use the failed intermediary bank, Section 4A-402(e) provides that in this case the originator is obliged to pay its payment order and has a claim against the intermediary bank for the amount of the order. The same principle applies to any other sender that designates a subsequent intermediary bank.
Unauthorized payment orders.
An important issue addressed in Section 4A-202 and Section 4A-203 is how the risk of loss from unauthorized payment orders is to be allocated. In a large percentage of cases, the payment order of the originator of the funds transfer is transmitted electronically to the originator's bank. In these cases it may not be possible for the bank to know whether the electronic message has been authorized by its customer. To ensure that no unauthorized person is transmitting messages to the bank, the normal practice is to establish security procedures that usually involve the use of codes or identifying numbers or words. If the bank accepts a payment order that purports to be that of its customer after verifying its authenticity by complying with a security procedure agreed to by the customer and the bank, the customer is bound to pay the order even if it was not authorized. But there is an important limitation on this rule. The bank is entitled to payment in the case of an unauthorized order only if the court finds that the security procedure was a commercially reasonable method of providing security against unauthorized payment orders. The customer can also avoid liability if it can prove that the unauthorized order was not initiated by an employee or other agent of the customer having access to confidential security information or by a person who obtained that information from a source controlled by the customer. The policy issues are discussed in the comments following Section 4A-203. If the bank accepts an unauthorized payment order without verifying it in compliance with a security procedure, the loss falls on the bank.
Security procedures are also important in cases of error in the transmission of payment orders. There may be an error by the sender in the amount of the order, or a sender may transmit a payment order and then erroneously transmit a duplicate of the order. Normally, the sender is bound by the payment order even if it is issued by mistake. But in some cases an error of this kind can be detected by a security procedure. Although the receiving bank is not obliged to provide a security procedure for the detection of error, if such a procedure is agreed to by the bank Section 4A-205 provides that if the error is not detected because the receiving bank does not comply with the procedure, any resulting loss is borne by the bank failing to comply with the security procedure.
Insolvency losses.
Some payment orders do not involve the granting of credit to the sender by the receiving bank. In those cases, the receiving bank accepts the sender's order at the same time the bank receives payment of the order. This is true of a transfer of funds by Fedwire or of cases in which the receiving bank can debit a funded account of the sender. But in some cases the granting of credit is the norm. This is true of a payment order over CHIPS. In a CHIPS transaction the receiving bank usually will accept the order before receiving payment from the sending bank. Payment is delayed until the end of the day when settlement is made through the Federal Reserve System. If the receiving bank is an intermediary bank, it will accept by issuing a payment order to another bank and the intermediary bank is obliged to pay that payment order. If the receiving bank is the beneficiary's bank, the bank usually will accept by releasing funds to the beneficiary before the bank has received payment. If a sending bank suspends payments before settling its liabilities at the end of the day, the financial stability of banks that are net creditors of the insolvent bank may also be put into jeopardy, because the dollar volume of funds transfers between the banks may be extremely large. With respect to two banks that are dealing with each other in a series of transactions in which each bank is sometimes a receiving bank and sometimes a sender, the risk of insolvency can be managed if amounts payable as a sender and amounts receivable as a receiving bank are roughly equal. But if these amounts are significantly out of balance, a net creditor bank may have a very significant credit risk during the day before settlement occurs. The Federal Reserve System and the banking community are greatly concerned with this risk, and various measures have been instituted to reduce this credit exposure. Article 4A also addresses this problem. A receiving bank can always avoid this risk by delaying acceptance of a payment order until after the bank has received payment. For example, if the beneficiary's bank credits the beneficiary's account it can avoid acceptance by not notifying the beneficiary of the receipt of the order or by notifying the beneficiary that the credit may not be withdrawn until the beneficiary's bank receives payment. But if the beneficiary's bank releases funds to the beneficiary before receiving settlement, the result in a funds transfer other than a transfer by means of an automated clearing house or similar provisional settlement system is that the beneficiary's bank may not recover the funds if it fails to receive settlement. This rule encourages the banking system to impose credit limitations on banks that issue payment orders. These limitations are already in effect. CHIPS has also proposed a loss-sharing plan to be adopted for implementation in the second half of 1990 under which CHIPS participants will be required to provide funds necessary to complete settlement of the obligations of one or more participants that are unable to meet settlement obligations. Under this plan, it will be a virtual certainty that there will be settlement on CHIPS in the event of failure by a single bank. Section 4A-403(b) and (c) are also addressed to reducing risks of insolvency. Under these provisions, the amount owed by a failed bank with respect to payment orders it issued is the net amount owing after setting off amounts owed to the failed bank with respect to payment orders it received. This rule allows credit exposure to be managed by limitations on the net debit position of a bank.
Section 36-4A-101. Short title.
This chapter may be cited as Uniform Commercial Code--Funds Transfers.
Section 36-4A-102. Subject matter.
Except as otherwise provided in Section 36-4A-108, this chapter applies to funds transfers defined in Section 36-4A-104.
Article 4A governs a specialized method of payment referred to in the Article as a funds transfer but also commonly referred to in the commercial community as a wholesale wire transfer. A funds transfer is made by means of one or more payment orders. The scope of Article 4A is determined by the definitions of "payment order" and "funds transfer" found in Section 4A-103 and Section 4A-104.
The funds transfer governed by Article 4A is in large part a product of recent and developing technological changes. Before this Article was drafted there was no comprehensive body of law -- statutory or judicial -- that defined the juridical nature of a funds transfer or the rights and obligations flowing from payment orders. Judicial authority with respect to funds transfers is sparse, undeveloped, and not uniform. Judges have had to resolve disputes by referring to general principles of common law or equity, or they have sought guidance in statutes such as Article 4 which are applicable to other payment methods. But attempts to define rights and obligations in funds transfers by general principles or by analogy to rights and obligations in negotiable instrument law or the law of check collection have not been satisfactory.
In the drafting of Article 4A, a deliberate decision was made to write on a clean slate and to treat a funds transfer as a unique method of payment to be governed by unique rules that address the particular issues raised by this method of payment. A deliberate decision was also made to use precise and detailed rules to assign responsibility, define behavioral norms, allocate risks, and establish limits on liability, rather than to rely on broadly stated, flexible principles. In the drafting of these rules, a critical consideration was that the various parties to funds transfers need to be able to predict risk with certainty, to insure against risk, to adjust operational and security procedures, and to price funds transfer services appropriately. This consideration is particularly important given the very large amounts of money that are involved in funds transfers.
Funds transfers involve competing interests -- those of the banks that provide funds transfer services and the commercial and financial organizations that use the services, as well as the public interest. These competing interests were represented in the drafting process and they were thoroughly considered. The rules that emerged represent a careful and delicate balancing of those interests and are intended to be the exclusive means of determining the rights, duties, and liabilities of the affected parties in any situation covered by particular provisions of the Article. Consequently, resort to principles of law or equity outside of Article 4A is not appropriate to create rights, duties and liabilities inconsistent with those stated in this Article.
Section 36-4A-103. Payment order -- Definitions.
(a) In this chapter:
(1) 'Payment order' means an instruction of a sender to a receiving bank, transmitted orally, electronically, or in writing, to pay, or to cause another bank to pay, a fixed or determinable amount of money to a beneficiary if:
(i) the instruction does not state a condition to payment to the beneficiary other than time of payment;
(ii) the receiving bank is to be reimbursed by debiting an account of, or otherwise receiving payment from, the sender; and
(iii) the instruction is transmitted by the sender directly to the receiving bank or to an agent, funds-transfer system, or communication system for transmittal to the receiving bank.
(2) 'Beneficiary' means the person to be paid by the beneficiary's bank.
(3) 'Beneficiary's bank' means the bank identified in a payment order in which an account of the beneficiary is to be credited pursuant to the order or which otherwise is to make payment to the beneficiary if the order does not provide for payment to an account.
(4) 'Receiving bank' means the bank to which the sender's instruction is addressed.
(5) 'Sender' means the person giving the instruction to the receiving bank.
(b) If an instruction complying with subsection (a)(1) is to make more than one payment to a beneficiary, the instruction is a separate payment order with respect to each payment.
(c) A payment order is issued when it is sent to the receiving bank.
This section is discussed in the Comment following Section 4A-104.
Section 36-4A-104. Funds transfer -- Definitions.
In this chapter:
(a) 'Funds transfer' means the series of transactions, beginning with the originator's payment order, made for the purpose of making payment to the beneficiary of the order. The term includes any payment order issued by the originator's bank or an intermediary bank intended to carry out the originator's payment order. A funds transfer is completed by acceptance by the beneficiary's bank of a payment order for the benefit of the beneficiary of the originator's payment order.
(b) 'Intermediary bank' means a receiving bank other than the originator's bank or the beneficiary's bank.
(c) 'Originator' means the sender of the first payment order in a funds transfer.
(d) 'Originator's bank' means (i) the receiving bank to which the payment order of the originator is issued if the originator is not a bank, or (ii) the originator if the originator is a bank.
1. Article 4A governs a method of payment in which the person making payment (the "originator") directly transmits an instruction to a bank either to make payment to the person receiving payment (the "beneficiary") or to instruct some other bank to make payment to the beneficiary. The payment from the originator to the beneficiary occurs when the bank that is to pay the beneficiary becomes obligated to pay the beneficiary. There are two basic definitions: "Payment order" stated in Section 4A-103 and "Funds transfer" stated in Section 4A-104. These definitions, other related definitions, and the scope of Article 4A can best be understood in the context of specific fact situations. Consider the following cases:
Case #1. X, which has an account in Bank A, instructs that bank to pay $1,000,000 to Y's account in Bank A. Bank A carries out X's instruction by making a credit of $1,000,000 to Y's account and notifying Y that the credit is available for immediate withdrawal. The instruction by X to Bank A is a "payment order" which was issued when it was sent to Bank A. Section 4A-103(a)(1) and (c). X is the "sender" of the payment order and Bank A is the "receiving bank." Section 4A-103(a)(5) and (a)(4). Y is the "beneficiary" of the payment order and Bank A is the "beneficiary's bank." Section 4A-103(a)(2) and (a)(3). When Bank A notified Y of receipt of the payment order, Bank A "accepted" the payment order. Section 4A-209(b)(1). When Bank A accepted the order, it incurred an obligation to Y to pay the amount of the order. Section 4A-404(a). When Bank A accepted X's order, X incurred an obligation to pay Bank A the amount of the order. Section 4A-402(b). Payment from X to Bank A would normally be made by a debit to X's account in Bank A. Section 4A-403(a)(3). At the time Bank A incurred the obligation to pay Y, payment of $1,000,000 by X to Y was also made. Section 4A-406(a). Bank A paid Y when it gave notice to Y of a withdrawable credit of $1,000,000 to Y's account. Section 4A-405(a). The overall transaction, which comprises the acts of X and Bank A, in which the payment by X to Y is accomplished is referred to as the "funds transfer." Section 4A-104(a). In this case only one payment order was involved in the funds transfer. A one-payment-order funds transfer is usually referred to as a "book transfer" because the payment is accomplished by the receiving bank's debiting the account of the sender and crediting the account of the beneficiary in the same bank. X, in addition to being the sender of the payment order to Bank A, is the "originator" of the funds transfer. Section 4A-104(c). Bank A is the "originator's bank" in the funds transfer as well as the beneficiary's bank. Section 4A-104(d).
Case #2. Assume the same facts as in Case #1 except that X instructs Bank A to pay $1,000,000 to Y's account in Bank B. With respect to this payment order, X is the sender, Y is the beneficiary, and Bank A is the receiving bank. Bank A carries out X's order by instructing Bank B to pay $1,000,000 to Y's account. This instruction is a payment order in which Bank A is the sender, Bank B is the receiving bank, and Y is the beneficiary. When Bank A issued its payment order to Bank B, Bank A "executed" X's order. Section 4A-301(a). In the funds transfer, X is the originator, Bank A is the originator's bank, and Bank B is the beneficiary's bank. When Bank A executed X's order, X incurred an obligation to pay Bank A the amount of the order. Section 4A-402(c). When Bank B accepts the payment order issued to it by Bank A, Bank B incurs an obligation to Y to pay the amount of the order (Section 4A-404 (a)) and Bank A incurs an obligation to pay Bank B. Section 4A-402(b). Acceptance by Bank B also results in payment of $1,000,000 by X to Y. Section 4A-406(a). In this case two payment orders are involved in the funds transfer.
Case #3. Assume the same facts as in Case #2 except that Bank A does not execute X's payment order by issuing a payment order to Bank B. One bank will not normally act to carry out a funds transfer for another bank unless there is a preexisting arrangement between the banks for transmittal of payment orders and settlement of accounts. For example, if Bank B is a foreign bank with which Bank A has no relationship, Bank A can utilize a bank that is a correspondent of both Bank A and Bank B. Assume Bank A issues a payment order to Bank C to pay $1,000,000 to Y's account in Bank B. With respect to this order, Bank A is the sender, Bank C is the receiving bank, and Y is the beneficiary. Bank C will execute the payment order of Bank A by issuing a payment order to Bank B to pay $1,000,000 to Y's account in Bank B. With respect to Bank C's payment order, Bank C is the sender, Bank B is the receiving bank, and Y is the beneficiary. Payment of $1,000,000 by X to Y occurs when Bank B accepts the payment order issued to it by Bank C. In this case the funds transfer involves three payment orders. In the funds transfer, X is the originator, Bank A is the originator's bank, Bank B is the beneficiary's bank, and Bank C is an "intermediary bank." Section 4A-104 (b). In some cases there may be more than one intermediary bank, and in those cases each intermediary bank is treated like Bank C in Case #3.
As the three cases demonstrate, a payment under Article 4A involves an overall transaction, the funds transfer, in which the originator, X, is making payment to the beneficiary, Y, but the funds transfer may encompass a series of payment orders that are issued in order to effect the payment initiated by the originator's payment order.
In some cases the originator and the beneficiary may be the same person. This will occur, for example, when a corporation orders a bank to transfer funds from an account of the corporation in that bank to another account of the corporation in that bank or in some other bank. In some funds transfers the first bank to issue a payment order is a bank that is executing a payment order of a customer that is not a bank. In this case the customer is the originator. In other cases, the first bank to issue a payment order is not acting for a customer, but is making a payment for its own account. In that event the first bank to issue a payment order is the originator as well as the originator's bank.
2. "Payment order" is defined in Section 4A-103(a)(1) as an instruction to a bank to pay, or to cause another bank to pay, a fixed or determinable amount of money. The bank to which the instruction is addressed is known as the "receiving bank." Section 4A-103(a)(4). "Bank" is defined in Section 4A-105(a)(2). The effect of this definition is to limit Article 4A to payments made through the banking system. A transfer of funds made by an entity outside the banking system is excluded. A transfer of funds through an entity other than a bank is usually a consumer transaction involving relatively small amounts of money and a single contract carried out by transfers of cash or a cash equivalent such as a check. Typically, the transferor delivers cash or a check to the company making the transfer, which agrees to pay a like amount to a person designated by the transferor. Transactions covered by Article 4A typically involve very large amounts of money in which several transactions involving several banks may be necessary to carry out the payment. Payments are normally made by debits or credits to bank accounts. Originators and beneficiaries are almost always business organizations and the transfers are usually made to pay obligations. Moreover, these transactions are frequently done on the basis of very short-term credit granted by the receiving bank to the sender of the payment order. Wholesale wire transfers involve policy questions that are distinct from those involved in consumer-based transactions by nonbanks.
3. Further limitations on the scope of Article 4A are found in the three requirements found in subparagraphs (i), (ii), and (iii) of Section 4A-103(a)(1). Subparagraph (i) states that the instruction to pay is a payment order only if it "does not state a condition to payment to the beneficiary other than time of payment." An instruction to pay a beneficiary sometimes is subject to a requirement that the beneficiary perform some act such as delivery of documents. For example, a New York bank may have issued a letter of credit in favor of X, a California seller of goods to be shipped to the New York bank's customer in New York. The terms of the letter of credit provide for payment to X if documents are presented to prove shipment of the goods. Instead of providing for presentment of the documents to the New York bank, the letter of credit states that they may be presented to a California bank that acts as an agent for payment. The New York bank sends an instruction to the California bank to pay X upon presentation of the required documents. The instruction is not covered by Article 4A because payment to the beneficiary is conditional upon receipt of shipping documents. The function of banks in a funds transfer under Article 4A is comparable to the role of banks in the collection and payment of checks in that it is essentially mechanical in nature. The low price and high speed that characterize funds transfers reflect this fact. Conditions to payment by the California bank other than time of payment impose responsibilities on that bank that go beyond those in Article 4A funds transfers. Although the payment by the New York bank to X under the letter of credit is not covered by Article 4A, if X is paid by the California bank, payment of the obligation of the New York bank to reimburse the California bank could be made by an Article 4A funds transfer. In such a case there is a distinction between the payment by the New York bank to X under the letter of credit and the payment by the New York bank to the California bank. For example, if the New York bank pays its reimbursement obligation to the California bank by a Fedwire naming the California bank as beneficiary (see Comment 1 to Section 4A-107), payment is made to the California bank rather than to X. That payment is governed by Article 4A and it could be made either before or after payment by the California bank to X. The payment by the New York bank to X under the letter of credit is not governed by Article 4A and it occurs when the California bank, as agent of the New York bank, pays X. No payment order was involved in that transaction. In this example, if the New York bank had erroneously sent an instruction to the California bank unconditionally instructing payment to X, the instruction would have been an Article 4A payment order. If the payment order was accepted (Section 4A-209(b)) by the California bank, a payment by the New York bank to X would have resulted (Section 4A-406(a)). But Article 4A would not prevent recovery of funds from X on the basis that X was not entitled to retain the funds under the law of mistake and restitution, letter of credit law, or other applicable law.
4. Transfers of funds made through the banking system are commonly referred to as either "credit" transfers or "debit" transfers. In a credit transfer the instruction to pay is given by the person making payment. In a debit transfer the instruction to pay is given by the person receiving payment. The purpose of subparagraph (ii) of subsection (a)(1) of Section 4A-103 is to include credit transfers in Article 4A and to exclude debit transfers. All of the instructions to pay in the three cases described in Comment 1 fall within subparagraph (ii). Take Case #2 as an example. With respect to X's instruction given to Bank A, Bank A will be reimbursed by debiting X's account or otherwise receiving payment from X. With respect to Bank A's instruction to Bank B, Bank B will be reimbursed by receiving payment from Bank A. In a debit transfer, a creditor, pursuant to authority from the debtor, is enabled to draw on the debtor's bank account by issuing an instruction to pay to the debtor's bank. If the debtor's bank pays, it will be reimbursed by the debtor rather than by the person giving the instruction. For example, the holder of an insurance policy may pay premiums by authorizing the insurance company to order the policyholder's bank to pay the insurance company. The order to pay may be in the form of a draft covered by Article 3, or it might be an instruction to pay that is not an instrument under that Article. The bank receives reimbursement by debiting the policyholder's account. Or, a subsidiary corporation may make payments to its parent by authorizing the parent to order the subsidiary's bank to pay the parent from the subsidiary's account. These transactions are not covered by Article 4A because subparagraph (2) is not satisfied. Article 4A is limited to transactions in which the account to be debited by the receiving bank is that of the person in whose name the instruction is given.
If the beneficiary of a funds transfer is the originator of the transfer, the transfer is governed by Article 4A if it is a credit transfer in form. If it is in the form of a debit transfer it is not governed by Article 4A. For example, Corporation has accounts in Bank A and Bank B. Corporation instructs Bank A to pay to Corporation's account in Bank B. The funds transfer is governed by Article 4A. Sometimes, Corporation will authorize Bank B to draw on Corporation's account in Bank A for the purpose of transferring funds into Corporation's account in Bank B. If Corporation also makes an agreement with Bank A under which Bank A is authorized to follow instructions of Bank B, as agent of Corporation, to transfer funds from Customer's account in Bank A, the instruction of Bank B is a payment order of Customer and is governed by Article 4A. This kind of transaction is known in the wire-transfer business as a "drawdown transfer." If Corporation does not make such an agreement with Bank A and Bank B instructs Bank A to make the transfer, the order is in form a debit transfer and is not governed by Article 4A. These debit transfers are normally ACH transactions in which Bank A relies on Bank B's warranties pursuant to ACH rules, including the warranty that the transfer is authorized.
5. The principal effect of subparagraph (iii) of subsection (a) of Section 4A-103 is to exclude from Article 4A payments made by check or credit card. In those cases the instruction of the debtor to the bank on which the check is drawn or to which the credit card slip is to be presented is contained in the check or credit card slip signed by the debtor. The instruction is not transmitted by the debtor directly to the debtor's bank. Rather, the instruction is delivered or otherwise transmitted by the debtor to the creditor who then presents it to the bank either directly or through bank collection channels. These payments are governed by Articles 3 and 4 and federal law. There are, however, limited instances in which the paper on which a check is printed can be used as the means of transmitting a payment order that is covered by Article 4A. Assume that Originator instructs Originator's Bank to pay $10,000 to the account of Beneficiary in Beneficiary's Bank. Since the amount of Originator's payment order is small, if Originator's Bank and Beneficiary's Bank do not have an account relationship, Originator's Bank may execute Originator's order by issuing a teller's check payable to Beneficiary's Bank for $10,000 along with instructions to credit Beneficiary's account in that amount. The instruction to Beneficiary's Bank to credit Beneficiary's account is a payment order. The check is the means by which Originator's Bank pays its obligation as sender of the payment order. The instruction of Originator's Bank to Beneficiary's Bank might be given in a letter accompanying the check or it may be written on the check itself. In either case the instruction to Beneficiary's Bank is a payment order but the check itself (which is an order to pay addressed to the drawee rather than to Beneficiary's Bank) is an instrument under Article 3 and is not a payment order. The check can be both the means by which Originator's Bank pays its obligation under Section 4A-402(b) to Beneficiary's Bank and the means by which the instruction to Beneficiary's Bank is transmitted.
6. Most payments covered by Article 4A are commonly referred to as wire transfers and usually involve some kind of electronic transmission, but the applicability of Article 4A does not depend upon the means used to transmit the instruction of the sender. Transmission may be by letter or other written communication, oral communication, or electronic communication. An oral communication is normally given by telephone. Frequently the message is recorded by the receiving bank to provide evidence of the transaction, but apart from problems of proof there is no need to record the oral instruction. Transmission of an instruction may be a direct communication between the sender and the receiving bank or through an intermediary such as an agent of the sender, a communication system such as international cable, or a funds transfer system such as CHIPS, SWIFT, or an automated clearing house.
Section 36-4A-105. Other definitions.
(a) In this chapter:
(1) 'Authorized account' means a deposit account of a customer in a bank designated by the customer as a source of payment of payment orders issued by the customer to the bank. If a customer does not so designate an account, any account of the customer is an authorized account if payment of a payment order from that account is not inconsistent with a restriction on the use of that account.
(2) 'Bank' means a person engaged in the business of banking and includes a savings bank, savings and loan association, credit union, and trust company. A branch or separate office of a bank is a separate bank for purposes of this chapter.
(3) 'Customer' means a person, including a bank, having an account with a bank or from whom a bank has agreed to receive payment orders.
(4) 'Funds-transfer business day' of a receiving bank means the part of a day during which the receiving bank is open for the receipt, processing, and transmittal of payment orders and cancellations and amendments of payment orders.
(5) 'Funds-transfer system' means a wire transfer network, automated clearing house, or other communication system of a clearing house or other association of banks through which a payment order by a bank may be transmitted to the bank to which the order is addressed.
(6) 'Good faith' means honesty in fact and the observance of reasonable commercial standards of fair dealing.
(7) 'Prove' with respect to a fact means to meet the burden of establishing the fact (Section 36-1-201(8)).
(b) Other definitions applying to this chapter and the sections in which they appear are:
'Acceptance' Section 36-4A-209
'Beneficiary' Section 36-4A-103
'Beneficiary's bank' Section 36-4A-103
'Executed' Section 36-4A-301
'Execution date' Section 36-4A-301
'Funds transfer' Section 36-4A-104
'Funds-transfer system rule' Section 36-4A-501
'Intermediary bank' Section 36-4A-104
'Originator' Section 36-4A-104
'Originator's bank' Section 36-4A-104
'Payment by beneficiary's bank
to beneficiary' Section 36-4A-405
'Payment by originator to
beneficiary' Section 36-4A-406
'Payment by sender
to receiving bank' Section 36-4A-403
'Payment date' Section 36-4A-401
'Payment order' Section 36-4A-103
'Receiving bank' Section 36-4A-103
'Security procedure' Section 36-4A-201
'Sender' Section 36-4A-103
(c) The following definitions in Chapter 4 apply to this chapter:
'Clearing house' Section 36-4-104
'Item' Section 36-4-104
'Suspends payments' Section 36-4-104
(d) In addition, Chapter 1 contains general definitions and principles of construction and interpretation applicable throughout this chapter.
1. The definition of "bank" in subsection (a)(2) includes some institutions that are not commercial banks. The definition reflects the fact that many financial institutions now perform functions previously restricted to commercial banks, including acting on behalf of customers in funds transfers. Since many funds transfers involve payment orders to or from foreign countries, the definition also covers foreign banks. The definition also includes Federal Reserve Banks. Funds transfers carried out by Federal Reserve Banks are described in Comments 1 and 2 to Section 4A-107.
2. Funds transfer business is frequently transacted by banks outside of general banking hours. Thus, the definition of banking day in Section 4-104(1)(c) cannot be used to describe when a bank is open for funds transfer business. Subsection (a)(4) defines a new term, "funds transfer business day," which is applicable to Article 4A. The definition states, "is open for the receipt, processing, and transmittal of payment orders and cancellations and amendments of payment orders." In some cases it is possible to electronically transmit payment orders and other communications to a receiving bank at any time. If the receiving bank is not open for the processing of an order when it is received, the communication is stored in the receiving bank's computer for retrieval when the receiving bank is open for processing. The use of the conjunctive makes clear that the defined term is limited to the period during which all functions of the receiving bank can be performed, i.e., receipt, processing, and transmittal of payment orders, cancellations, and amendments.
3. Subsection (a)(5) defines "funds transfer system." The term includes a system such as CHIPS which provides for transmission of a payment order as well as settlement of the obligation of the sender to pay the order. It also includes automated clearing houses, operated by a clearing house or other association of banks, which process and transmit payment orders of banks to other banks. In addition the term includes organizations that provide only transmission services such as SWIFT. The definition also includes the wire transfer network and automated clearing houses of Federal Reserve Banks. Systems of the Federal Reserve Banks, however, are treated differently from systems of other associations of banks. Funds transfer systems other than systems of the Federal Reserve Banks are treated in Article 4A as a means of communication of payment orders between participating banks. Section 4A-206. The Comment to that section and the Comment to Section 4A-107 explain how Federal Reserve Banks function under Article 4A. Funds transfer systems are also able to promulgate rules binding on participating banks that, under Section 4A-501, may supplement or in some cases may even override provisions of Article 4A.
4. Subsection (d) incorporates definitions stated in Article 1 as well as principles of construction and interpretation stated in that Article. Included is Section 1-103. The last paragraph of the Comment to Section 4A-102 is addressed to the issue of the extent to which general principles of law and equity should apply to situations covered by provisions of Article 4A.
Section 36-4A-106. Time payment order is received.
(a) The time of receipt of a payment order or communication canceling or amending a payment order is determined by the rules applicable to receipt of a notice stated in Section 36-1-201(27). A receiving bank may fix a cut-off time or times on a funds-transfer business day for the receipt and processing of payment orders and communications canceling or amending payment orders. Different cut-off times may apply to payment orders, cancellations, or amendments, or to different categories of payment orders, cancellations, or amendments. A cut-off time may apply to senders generally or different cut-off times may apply to different senders or categories of payment orders. If a payment order or communication canceling or amending a payment order is received after the close of a funds-transfer business day or after the appropriate cut-off time on a funds-transfer business day, the receiving bank may treat the payment order or communication as received at the opening of the next funds-transfer business day.
(b) If this chapter refers to an execution date or payment date or states a day on which a receiving bank is required to take action, and the date or day does not fall on a funds-transfer business day, the next day that is a funds-transfer business day is treated as the date or day stated, unless the contrary is stated in this chapter.
The time that a payment order is received by a receiving bank usually defines the payment date or the execution date of a payment order. Section 4A-401 and Section 4A-301. The time of receipt of a payment order, or communication canceling or amending a payment order is defined in subsection (a) by reference to the rules stated in Section 1-201(27). Thus, time of receipt is determined by the same rules that determine when a notice is received. Time of receipt, however, may be altered by a cut-off time.
Section 36-4A-107. Federal reserve regulations and operating circulars.
Regulations of the Board of Governors of the Federal Reserve System and operating circulars of the Federal Reserve Banks supersede any inconsistent provision of this chapter to the extent of the inconsistency.
1. Funds transfers under Article 4A may be made, in whole or in part, by payment orders through a Federal Reserve Bank in what is usually referred to as a transfer by Fedwire. If Bank A, which has an account in Federal Reserve Bank X, wants to pay $1,000,000 to Bank B, which has an account in Federal Reserve Bank Y, Bank A can issue an instruction to Reserve Bank X requesting a debit of $1,000,000 to Bank A's Reserve account and an equal credit to Bank B's Reserve account. Reserve Bank X will debit Bank A's account and will credit the account of Reserve Bank Y. Reserve Bank X will issue an instruction to Reserve Bank Y requesting a debit of $1,000,000 to the account of Reserve Bank X and an equal credit to Bank B's account in Reserve Bank Y. Reserve Bank Y will make the requested debit and credit and will give Bank B an advice of credit. The definition of "bank" in Section 4A-105(a)(2) includes both Reserve Bank X and Reserve Bank Y. Bank A's instruction to Reserve Bank X to pay money to Bank B is a payment order under Section 4A-103(a)(1). Bank A is the sender and Reserve Bank X is the receiving bank. Bank B is the beneficiary of Bank A's order and of the funds transfer. Bank A is the originator of the funds transfer and is also the originator's bank. Section 4A-104(c) and (d). Reserve Bank X, an intermediary bank under Section 4A-104(b), executes Bank A's order by sending a payment order to Reserve Bank Y instructing that bank to credit the Federal Reserve account of Bank B. Reserve Bank Y is the beneficiary's bank.
Suppose the transfer of funds from Bank A to Bank B is part of a larger transaction in which Originator, a customer of Bank A, wants to pay Beneficiary, a customer of Bank B. Originator issues a payment order to Bank A to pay $1,000,000 to the account of Beneficiary in Bank B. Bank A may execute Originator's order by means of Fedwire which simultaneously transfers $1,000,000 from Bank A to Bank B and carries a message instructing Bank B to pay $1,000,000 to the account of Y. The Fedwire transfer is carried out as described in the previous paragraph, except that the beneficiary of the funds transfer is Beneficiary rather than Bank B. Reserve Bank X and Reserve Bank Y are intermediary banks. When Reserve Bank Y advises Bank B of the credit to its Federal Reserve account, it will also instruct Bank B to pay to the account of Beneficiary. The instruction is a payment order to Bank B which is the beneficiary's bank. When Reserve Bank Y advises Bank B of the credit to its Federal Reserve account Bank B receives payment of the payment order issued to it by Reserve Bank Y. Section 4A-403(a)(1). The payment order is automatically accepted by Bank B at the time it receives the payment order of Reserve Bank Y. Section 4A-209(b)(2). At the time of acceptance by Bank B payment by Originator to Beneficiary also occurs. Thus, in a Fedwire transfer, payment to the beneficiary's bank, acceptance by the beneficiary's bank, and payment by the originator to the beneficiary all occur simultaneously by operation of law at the time the payment order to the beneficiary's bank is received.
If Originator orders payment to the account of Beneficiary in Bank C rather than Bank B, the analysis is somewhat modified. Bank A may not have any relationship with Bank C and may not be able to make payment directly to Bank C. In that case, Bank A could send a Fedwire instructing Bank B to instruct Bank C to pay Beneficiary. The analysis is the same as the previous case except that Bank B is an intermediary bank and Bank C is the beneficiary's bank.
2. A funds transfer can also be made through a Federal Reserve Bank in an automated clearing house transaction. In a typical case, Originator instructs Originator's Bank to pay to the account of Beneficiary in Beneficiary's Bank. Originator's instruction to pay a particular beneficiary is transmitted to Originator's Bank along with many other instructions for payment to other beneficiaries by many different beneficiary's banks. All of these instructions are contained in a magnetic tape or other electronic device. Transmission of instructions to the various beneficiary's banks requires that Originator's instructions be processed and repackaged with instructions of other originators so that all instructions to a particular beneficiary's bank are transmitted together to that bank. The repackaging is done in processing centers usually referred to as automated clearing houses. Automated clearing houses are operated either by Federal Reserve Banks or by other associations of banks. If Originator's Bank chooses to execute Originator's instructions by transmitting them to a Federal Reserve Bank for processing by the Federal Reserve Bank, the transmission to the Federal Reserve Bank results in the issuance of payment orders by Originator's Bank to the Federal Reserve Bank, which is an intermediary bank. Processing by the Federal Reserve Bank will result in the issuance of payment orders by the Federal Reserve Bank to Beneficiary's Bank as well as payment orders to other beneficiary's banks making payments to carry out Originator's instructions.
3. Although the terms of Article 4A apply to funds transfers involving Federal Reserve Banks, federal preemption would make ineffective any Article 4A provision that conflicts with federal law. The payments activities of the Federal Reserve Banks are governed by regulations of the Federal Reserve Board and by operating circulars issued by the Reserve Banks themselves. In some instances, the operating circulars are issued pursuant to a Federal Reserve Board regulation. In other cases, the Reserve Bank issues the operating circular under its own authority under the Federal Reserve Act, subject to review by the Federal Reserve Board. Section 4A-107 states that Federal Reserve Board regulations and operating circulars of the Federal Reserve Banks supersede any inconsistent provision of Article 4A to the extent of the inconsistency. Federal Reserve Board regulations, being valid exercises of regulatory authority pursuant to a federal statute, take precedence over state law if there is an inconsistency. Childs v. Federal Reserve Bank of Dallas, 719 F.2d 812 (5th Cir. 1983), reh. den. 724 F.2d 127 (5th Cir. 1984). Section 4A-107 treats operating circulars as having the same effect whether issued under the Reserve Bank's own authority or under a Federal Reserve Board regulation.
Section 36-4A-108. Exclusion of consumer transactions governed by federal law.
This chapter does not apply to a funds transfer any part of which is governed by the Electronic Fund Transfer Act of 1978 (Title XX, Public Law 95-630, 92 Stat. 3728, 15 U.S.C. Section 1693 et seq.) as amended from time to time.
The Electronic Fund Transfer Act of 1978 is a federal statute that covers a wide variety of electronic funds transfers involving consumers. The types of transfers covered by the federal statute are essentially different from the wholesale wire transfers that are the primary focus of Article 4A. Section 4A-108 excludes a funds transfer from Article 4A if any part of the transfer is covered by the federal law. Existing procedures designed to comply with federal law will not be affected by Article 4A. The effect of Section 4A-108 is to make Article 4A and EFTA mutually exclusive. For example, if a funds transfer is to a consumer account in the beneficiary's bank and the funds transfer is made in part by use of Fedwire and in part by means of an automated clearing house, EFTA applies to the ACH part of the transfer but not to the Fedwire part. Under Section 4A-108, Article 4A does not apply to any part of the transfer. However, in the absence of any law to govern the part of the funds transfer that is not subject to EFTA, a court might apply appropriate principles from Article 4A by analogy.
Section 36-4A-201. Security procedure.
'Security procedure' means a procedure established by agreement of a customer and a receiving bank for the purpose of (i) verifying that a payment order or communication amending or canceling a payment order is that of the customer, or (ii) detecting error in the transmission or the content of the payment order or communication. A security procedure may require the use of algorithms or other codes, identifying words or numbers, encryption, callback procedures, or similar security devices. Comparison of a signature on a payment order or communication with an authorized specimen signature of the customer is not by itself a security procedure.
A large percentage of payment orders and communications amending or canceling payment orders are transmitted electronically, and it is standard practice to use security procedures that are designed to assure the authenticity of the message. Security procedures can also be used to detect error in the content of messages or to detect payment orders that are transmitted by mistake as in the case of multiple transmission of the same payment order. Security procedures might also apply to communications that are transmitted by telephone or in writing. Section 4A-201 defines these security procedures. The definition of security procedure limits the term to a procedure "established by agreement of a customer and a receiving bank." The term does not apply to procedures that the receiving bank may follow unilaterally in processing payment orders. The question of whether loss that may result from the transmission of a spurious or erroneous payment order will be borne by the receiving bank or the sender or purported sender is affected by whether a security procedure was or was not in effect and whether there was or was not compliance with the procedure. Security procedures are referred to in Sections 4A-202 and 4A-203, which deal with authorized and verified payment orders, and Section 4A-205, which deals with erroneous payment orders.
Section 36-4A-202. Authorized and verified payment orders.
(a) A payment order received by the receiving bank is the authorized order of the person identified as sender if that person authorized the order or is otherwise bound by it under the law of agency.
(b) If a bank and its customer have agreed that the authenticity of payment orders issued to the bank in the name of the customer as sender will be verified pursuant to a security procedure, a payment order received by the receiving bank is effective as the order of the customer, whether or not authorized, if (i) the security procedure is a commercially reasonable method of providing security against unauthorized payment orders, and (ii) the bank proves that it accepted the payment order in good faith and in compliance with the security procedure and any written agreement or instruction of the customer restricting acceptance of payment orders issued in the name of the customer. The bank is not required to follow an instruction that violates a written agreement with the customer or notice of which is not received at a time and in a manner affording the bank a reasonable opportunity to act on it before the payment order is accepted.
(c) Commercial reasonableness of a security procedure is a question of law to be determined by considering the wishes of the customer expressed to the bank, the circumstances of the customer known to the bank, including the size, type, and frequency of payment orders normally issued by the customer to the bank, alternative security procedures offered to the customer, and security procedures in general use by customers and receiving banks similarly situated. A security procedure is deemed to be commercially reasonable if (i) the security procedure was chosen by the customer after the bank offered, and the customer refused, a security procedure that was commercially reasonable for that customer, and (ii) the customer expressly agreed in writing to be bound by any payment order, whether or not authorized, issued in its name and accepted by the bank in compliance with the security procedure chosen by the customer.
(d) The term 'sender' in this chapter includes the customer in whose name a payment order is issued if the order is the authorized order of the customer under subsection (a), or it is effective as the order of the customer under subsection (b).
(e) This section applies to amendments and cancellations of payment orders to the same extent it applies to payment orders.
(f) Except as provided in this section and in Section 36-4A-203(a)(1), rights and obligations arising under this section or Section 36-4A-203 may not be varied by agreement.
This section is discussed in the Comment following Section 4A-203.
Section 36-4A-203. Unenforceability of certain verified payment orders.
(a) If an accepted payment order is not, under Section 36-4A-202(a), an authorized order of a customer identified as sender, but is effective as an order of the customer pursuant to Section 36-4A-202(b), the following rules apply:
(1) By express written agreement, the receiving bank may limit the extent to which it is entitled to enforce or retain payment of the payment order.
(2) The receiving bank is not entitled to enforce or retain payment of the payment order if the customer proves that the order was not caused, directly or indirectly, by a person (i) entrusted at any time with duties to act for the customer with respect to payment orders or the security procedure, or (ii) who obtained access to transmitting facilities of the customer or who obtained, from a source controlled by the customer and without authority of the receiving bank, information facilitating breach of the security procedure, regardless of how the information was obtained or whether the customer was at fault. Information includes any access device, computer software, or the like.
(b) This section applies to amendments of payment orders to the same extent it applies to payment orders.
1. Some person will always be identified as the sender of a payment order. Acceptance of the order by the receiving bank is based on a belief by the bank that the order was authorized by the person identified as the sender. If the receiving bank is the beneficiary's bank acceptance means that the receiving bank is obliged to pay the beneficiary. If the receiving bank is not the beneficiary's bank, acceptance means that the receiving bank has executed the sender's order and is obliged to pay the bank that accepted the order issued in execution of the sender's order. In either case the receiving bank may suffer a loss unless it is entitled to enforce payment of the payment order that it accepted. If the person identified as the sender of the order refuses to pay on the ground that the order was not authorized by that person, what are the rights of the receiving bank? In the absence of a statute or agreement that specifically addresses the issue, the question usually will be resolved by the law of agency. In some cases, the law of agency works well. For example, suppose the receiving bank executes a payment order given by means of a letter apparently written by a corporation that is a customer of the bank and apparently signed by an officer of the corporation. If the receiving bank acts solely on the basis of the letter, the corporation is not bound as the sender of the payment order unless the signature was that of the officer and the officer was authorized to act for the corporation in the issuance of payment orders, or some other agency doctrine such as apparent authority or estoppel causes the corporation to be bound. Estoppel can be illustrated by the following example. Suppose P is aware that A, who is unauthorized to act for P, has fraudulently misrepresented to T that A is authorized to act for P. T believes A and is about to rely on the misrepresentation. If P does not notify T of the true facts although P could easily do so, P may be estopped from denying A's lack of authority. A similar result could follow if the failure to notify T is the result of negligence rather than a deliberate decision. Restatement, Second, Agency Section 8B. Other equitable principles such as subrogation or restitution might also allow a receiving bank to recover with respect to an unauthorized payment order that it accepted. In Gatoil (U.S.A.), Inc. v. Forest Hill State Bank, 1 U.C.C. Rep. Serv. 2d 171 (D.Md. 1986), a joint venturer not authorized to order payments from the account of the joint venture, ordered a funds transfer from the account. The transfer paid a bona fide debt of the joint venture. Although the transfer was unauthorized, the court refused to require recredit of the account because the joint venture suffered no loss. The result can be rationalized on the basis of subrogation of the receiving bank to the right of the beneficiary of the funds transfer to receive the payment from the joint venture.
But in most cases these legal principles give the receiving bank very little protection in the case of an authorized payment order. Cases like those just discussed are not typical of the way that most payment orders are transmitted and accepted, and such cases are likely to become even less common. Given the large amount of the typical payment order, a prudent receiving bank will be unwilling to accept a payment order unless it has assurance that the order is what it purports to be. This assurance is normally provided by security procedures described in Section 4A-201.
In a very large percentage of cases covered by Article 4A, transmission of the payment order is made electronically. The receiving bank may be required to act on the basis of a message that appears on a computer screen. Common law concepts of authority of agent to bind principal are not helpful. There is no way of determining the identity or the authority of the person who caused the message to be sent. The receiving bank is not relying on the authority of any particular person to act for the purported sender. The case is not comparable to payment of a check by the drawee bank on the basis of a signature that is forged. Rather, the receiving bank relies on a security procedure pursuant to which the authenticity of the message can be "tested" by various devices which are designed to provide certainty that the message is that of the sender identified in the payment order. In the wire transfer business the concept of "authorized" is different from that found in agency law. In that business a payment order is treated as the order of the person in whose name it is issued if it is properly tested pursuant to a security procedure and the order passes the test.
Section 4A-202 reflects the reality of the wire transfer business. A person in whose name a payment order is issued is considered to be the sender of the order if the order is "authorized" as stated in subsection (a) or if the order is "verified" pursuant to a security procedure in compliance with subsection (b). If subsection (b) does not apply, the question of whether the customer is responsible for the order is determined by the law of agency. The issue is one of actual or apparent authority of the person who caused the order to be issued in the name of the customer. In some cases the law of agency might allow the customer to be bound by an unauthorized order if conduct of the customer can be used to find an estoppel against the customer to deny that the order was unauthorized. If the customer is bound by the order under any of these agency doctrines, subsection (a) treats the order as authorized and thus the customer is deemed to be the sender of the order. In most cases, however, subsection (b) will apply. In that event there is no need to make an agency law analysis to determine authority. Under Section 4A-202, the issue of liability of the purported sender of the payment order will be determined by agency law only if the receiving bank did not comply with subsection (b).
2. The scope of Section 4A-202 can be illustrated by the following cases. Case #1. A payment order purporting to be that of Customer is received by Receiving Bank, but the order was fraudulently transmitted by a person who had no authority to act for Customer. Case #2. An authentic payment order was sent by Customer, but before the order was received by Receiving Bank the order was fraudulently altered by an unauthorized person to change the beneficiary. Case #3. An authentic payment order was received by Receiving Bank, but before the order was executed by Receiving Bank a person who had no authority to act for Customer fraudulently sent a communication purporting to amend the order by changing the beneficiary. In each case Receiving Bank acted on the fraudulent communication by accepting the payment order. These cases are all essentially similar and they are treated identically by Section 4A-202. In each case Receiving Bank acted on a communication that it thought was authorized by Customer when in fact the communication was fraudulent. No distinction is made between Case #1 in which Customer took no part at all in the transaction and Case #2 and Case #3 in which an authentic order was fraudulently altered or amended by an unauthorized person. If subsection (b) does not apply, each case is governed by subsection (a). If there are no additional facts on which an estoppel might be found, Customer is not responsible in Case #1 for the fraudulently issued payment order, in Case #2 for the fraudulent alteration, or in Case #3 for the fraudulent amendment. Thus, in each case Customer is not liable to pay the order and Receiving Bank takes the loss. The only remedy of Receiving Bank is to seek recovery from the person who received payment as beneficiary of the fraudulent order. If there was verification in compliance with subsection (b), Customer will take the loss unless Section 4A-203 applies.
3. Subsection (b) of Section 4A-202 is based on the assumption that losses due to fraudulent payment orders can best be avoided by the use of commercially reasonable security procedures, and that the use of such procedures should be encouraged. The subsection is designed to protect both the customer and the receiving bank. A receiving bank needs to be able to rely on objective criteria to determine whether it can safely act on a payment order. Employees of the bank can be trained to "test" a payment order according to the various steps specified in the security procedure. The bank is responsible for the acts of these employees. Subsection (b)(ii) requires the bank to prove that it accepted the payment order in good faith and "in compliance with the security procedure." If the fraud was not detected because the bank's employee did not perform the acts required by the security procedure, the bank has not complied. Subsection (b)(ii) also requires the bank to prove that it complied with any agreement or instruction that restricts acceptance of payment orders issued in the name of the customer. A customer may want to protect itself by imposing limitations on acceptance of payment orders by the bank. For example, the customer may prohibit the bank from accepting a payment order that is not payable from an authorized account, that exceeds the credit balance in specified accounts of the customer, or that exceeds some other amount. Another limitation may relate to the beneficiary. The customer may provide the bank with a list of authorized beneficiaries and prohibit acceptance of any payment order to a beneficiary not appearing on the list. Such limitations may be incorporated into the security procedure itself or they may be covered by a separate agreement or instruction. In either case, the bank must comply with the limitations if the conditions stated in subsection (b) are met. Normally limitations on acceptance would be incorporated into an agreement between the customer and the receiving bank, but in some cases the instruction might be unilaterally given by the customer. If standing instructions or an agreement state limitations on the ability of the receiving bank to act, provision must be made for later modification of the limitations. Normally, this would be done by an agreement that specifies particular procedures to be followed. Thus, subsection (b) states that the receiving bank is not required to follow an instruction that violates a written agreement. The receiving bank is not bound by an instruction unless it has adequate notice of it. Subsections (25), (26) and (27) of Section 1-201 apply.
Subsection (b)(i) assures that the interests of the customer will be protected by providing an incentive to a bank to make available to the customer a security procedure that is commercially reasonable. If a commercially reasonable security procedure is not made available to the customer, subsection (b) does not apply. The result is that subsection (a) applies and the bank acts at its peril in accepting a payment order that may be unauthorized. Prudent banking practice may require that security procedures be utilized in virtually all cases except for those in which personal contact between the customer and the bank eliminates the possibility of an unauthorized order. The burden of making available commercially reasonable security procedures is imposed on receiving banks because they generally determine what security procedures can be used and are in the best position to evaluate the efficacy of procedures offered to customers to combat fraud. The burden on the customer is to supervise its employees to assure compliance with the security procedure and to safeguard confidential security information and access to transmitting facilities so that the security procedure cannot be breached.
4. The principal issue that is likely to arise in litigation involving subsection (b) is whether the security procedure in effect when a fraudulent payment order was accepted was commercially reasonable. The concept of what is commercially reasonable in a given case is flexible. Verification entails labor and equipment costs that can vary greatly depending upon the degree of security that is sought. A customer that transmits very large numbers of payment orders in very large amounts may desire and may reasonably expect to be provided with state-of-the-art procedures that provide maximum security. But the expense involved may make use of a state-of-the-art procedure infeasible for a customer that normally transmits payment orders infrequently or in relatively low amounts. Another variable is the type of receiving bank. It is reasonable to require large money center banks to make available state-of-the-art security procedures. On the other hand, the same requirement may not be reasonable for a small country bank. A receiving bank might have several security procedures that are designed to meet the varying needs of different customers. The type of payment order is another variable. For example, in a wholesale wire transfer, each payment order is normally transmitted electronically and individually. A testing procedure will be individually applied to each payment order. In funds transfers to be made by means of an automated clearing house, many payment orders are incorporated into an electronic device such as a magnetic tape that is physically delivered. Testing of the individual payment orders is not feasible. Thus, a different kind of security procedure must be adopted to take into account the different mode of transmission.
The issue of whether a particular security procedure is commercially reasonable is a question of law. Whether the receiving bank complied with the procedure is a question of fact. It is appropriate to make the finding concerning commercial reasonability a matter of law because security procedures are likely to be standardized in the banking industry and a question of law standard leads to more predictability concerning the level of security that a bank must offer to its customers. The purpose of subsection (b) is to encourage banks to institute reasonable safeguards against fraud but not to make them insurers against fraud. A security procedure is not commercially unreasonable simply because another procedure might have been better or because the judge deciding the question would have opted for a more stringent procedure. The standard is not whether the security procedure is the best available. Rather it is whether the procedure is reasonable for the particular customer and the particular bank, which is a lower standard. On the other hand, a security procedure that fails to meet prevailing standards of good banking practice applicable to the particular bank should not be held to be commercially reasonable. Subsection (c) states factors to be considered by the judge in making the determination of commercial reasonableness. Sometimes an informed customer refuses a security procedure that is commercially reasonable and suitable for that customer and insists on using a higher-risk procedure because it is more convenient or cheaper. In that case, under the last sentence of subsection (c), the customer has voluntarily assumed the risk of failure of the procedure and cannot shift the loss to the bank. But this result follows only if the customer expressly agrees in writing to assume that risk. It is implicit in the last sentence of subsection (c) that a bank that accedes to the wishes of its customer in this regard is not acting in bad faith by so doing so long as the customer is made aware of the risk. In all cases, however, a receiving bank cannot get the benefit of subsection (b) unless it has made available to the customer a security procedure that is commercially reasonable and suitable for use by that customer. In most cases, the mutual interest of bank and customer to protect against fraud should lead to agreement to a security procedure which is commercially reasonable.
5. The effect of Section 4A-202(b) is to place the risk of loss on the customer if an unauthorized payment order is accepted by the receiving bank after verification by the bank in compliance with a commercially reasonable security procedure. An exception to this result is provided by Section 4A-203(a)(2). The customer may avoid the loss resulting from such a payment order if the customer can prove that the fraud was not committed by a person described in that subsection. Breach of a commercially reasonable security procedure requires that the person committing the fraud have knowledge of how the procedure works and knowledge of codes, identifying devices, and the like. That person may also need access to transmitting facilities through an access device or other software in order to breach the security procedure. This confidential information must be obtained either from a source controlled by the customer or from a source controlled by the receiving bank. If the customer can prove that the person committing the fraud did not obtain the confidential information from an agent or former agent of the customer or from a source controlled by the customer, the loss is shifted to the bank. "Prove" is defined in Section 4A-105(a)(7). Because of bank regulation requirements, in this kind of case there will always be a criminal investigation as well as an internal investigation of the bank to determine the probable explanation for the breach of security. Because a funds transfer fraud usually will involve a very large amount of money, both the criminal investigation and the internal investigation are likely to be thorough. In some cases there may be an investigation by bank examiners as well. Frequently, these investigations will develop evidence of who is at fault and the cause of the loss. The customer will have access to evidence developed in these investigations and that evidence can be used by the customer in meeting its burden of proof.
6. The effect of Section 4A-202(b) may also be changed by an agreement meeting the requirements of Section 4A-203(a)(1). Some customers may be unwilling to take all or part of the risk of loss with respect to unauthorized payment orders even if all of the requirements of Section 4A-202(b) are met. By virtue of Section 4A-203(a)(1), a receiving bank may assume all of the risk of loss with respect to unauthorized payment orders, or the customer and bank may agree that losses from unauthorized payment orders are to be divided as provided in the agreement.
7. In a large majority of cases the sender of a payment order is a bank. In many cases in which there is a bank sender, both the sender and the receiving bank will be members of a funds transfer system over which the payment order is transmitted. Since Section 4A-202(f) does not prohibit a funds transfer system rule from varying rights and obligations under Section 4A-202, a rule of the funds transfer system can determine how loss due to an unauthorized payment order from a participating bank to another participating bank is to be allocated. A funds transfer system rule, however, cannot change the rights of a customer that is not a participating bank. Section 4A-501(b). Section 4A-202(f) also prevents variation by agreement except to the extent stated.
Section 36-4A-204. Refund of payment and duty of customer to report with respect to unauthorized payment order.
(a) If a receiving bank accepts a payment order issued in the name of its customer as sender which is (i) not authorized and not effective as the order of the customer under Section 36-4A-202, or (ii) not enforceable, in whole or in part, against the customer under Section 36-4A-203, the bank shall refund any payment of the payment order received from the customer to the extent the bank is not entitled to enforce payment and shall pay interest on the refundable amount calculated from the date the bank received payment to the date of the refund. However, the customer is not entitled to interest from the bank on the amount to be refunded if the customer fails to exercise ordinary care to determine that the order was not authorized by the customer and to notify the bank of the relevant facts within a reasonable time not exceeding ninety days after the date the customer received notification from the bank that the order was accepted or that the customer's account was debited with respect to the order. The bank is not entitled to any recovery from the customer on account of a failure by the customer to give notification as stated in this section.
(b) Reasonable time under subsection (a) may be fixed by agreement as stated in Section 36-1-204(1), but the obligation of a receiving bank to refund payment as stated in subsection (a) may not otherwise be varied by agreement.
1. With respect to unauthorized payment orders, in a very large percentage of cases a commercially reasonable security procedure will be in effect. Section 4A-204 applies only to cases in which (i) no commercially reasonable security procedure is in effect, (ii) the bank did not comply with a commercially reasonable security procedure that was in effect, (iii) the sender can prove, pursuant to Section 4A-203(a)(2), that the culprit did not obtain confidential security information controlled by the customer, or (iv) the bank, pursuant to Section 4A-203(a)(1) agreed to take all or part of the loss resulting from an unauthorized payment order. In each of these cases the bank takes the risk of loss with respect to an unauthorized payment order because the bank is not entitled to payment from the customer with respect to the order. The bank normally debits the customer's account or otherwise receives payment from the customer shortly after acceptance of the payment order. Subsection (a) of Section 4A-204 states that the bank must recredit the account or refund payment to the extent the bank is not entitled to enforce payment.
2. Section 4A-204 is designed to encourage a customer to promptly notify the receiving bank that it has accepted an unauthorized payment order. Since cases of unauthorized payment orders will almost always involve fraud, the bank's remedy is normally to recover from the beneficiary of the unauthorized order if the beneficiary was party to the fraud. This remedy may not be worth very much and it may not make any difference whether or not the bank promptly learns about the fraud. But in some cases prompt notification may make it easier for the bank to recover some part of its loss from the culprit. The customer will routinely be notified of the debit to its account with respect to an unauthorized order or will otherwise be notified of acceptance of the order. The customer has a duty to exercise ordinary care to determine that the order was unauthorized after it has received notification from the bank, and to advise the bank of the relevant facts within a reasonable time not exceeding ninety days after receipt of notification. Reasonable time is not defined and it may depend on the facts of the particular case. If a payment order for $1,000,000 is wholly unauthorized, the customer should normally discover it in far less than ninety days. If a $1,000,000 payment order was authorized but the name of the beneficiary was fraudulently changed, a much longer period may be necessary to discover the fraud. But in any event, if the customer delays more than ninety days, the customer's duty has not been met. The only consequence of a failure of the customer to perform this duty is a loss of interest on the refund payable by the bank. A customer that acts promptly is entitled to interest from the time the customer's account was debited or the customer otherwise made payment. The rate of interest is stated in Section 4A-506. If the customer fails to perform the duty, no interest is recoverable for any part of the period before the bank learns that it accepted an unauthorized order. But the bank is not entitled to any recovery from the customer based on negligence for failure to inform the bank. Loss of interest is in the nature of a penalty on the customer designed to provide an incentive for the customer to police its account. There is no intention to impose a duty on the customer that might result in shifting loss from the unauthorized order to the customer.
Section 36-4A-205. Erroneous payment orders.
(a) If an accepted payment order was transmitted pursuant to a security procedure for the detection of error and the payment order (i) erroneously instructed payment to a beneficiary not intended by the sender, (ii) erroneously instructed payment in an amount greater than the amount intended by the sender, or (iii) was an erroneously transmitted duplicate of a payment order previously sent by the sender, the following rules apply:
(1) If the sender proves that the sender or a person acting on behalf of the sender pursuant to Section 36-4A-206 complied with the security procedure and that the error would have been detected if the receiving bank had also complied, the sender is not obliged to pay the order to the extent stated in paragraphs (2) and (3).
(2) If the funds transfer is completed on the basis of an erroneous payment order described in clause (i) or (iii) of subsection (a), the sender is not obliged to pay the order and the receiving bank is entitled to recover from the beneficiary any amount paid to the beneficiary to the extent allowed by the law governing mistake and restitution.
(3) If the funds transfer is completed on the basis of a payment order described in clause (ii) of subsection (a), the sender is not obliged to pay the order to the extent the amount received by the beneficiary is greater than the amount intended by the sender. In that case, the receiving bank is entitled to recover from the beneficiary the excess amount received to the extent allowed by the law governing mistake and restitution.
(b) If (i) the sender of an erroneous payment order described in subsection (a) is not obliged to pay all or part of the order, and (ii) the sender receives notification from the receiving bank that the order was accepted by the bank or that the sender's account was debited with respect to the order, the sender has a duty to exercise ordinary care, on the basis of information available to the sender, to discover the error with respect to the order and to advise the bank of the relevant facts within a reasonable time, not exceeding ninety days, after the bank's notification was received by the sender. If the bank proves that the sender failed to perform that duty, the sender is liable to the bank for the loss the bank proves it incurred as a result of the failure, but the liability of the sender may not exceed the amount of the sender's order.
(c) This section applies to amendments to payment orders to the same extent it applies to payment orders.
1. This section concerns error in the content or in the transmission of payment orders. It deals with three kinds of error. Case #1. The order identifies a beneficiary not intended by the sender. For example, Sender intends to wire funds to a beneficiary identified only by an account number. The wrong account number is stated in the order. Case #2. The error is in the amount of the order. For example, Sender intends to wire $1,000 to Beneficiary. Through error, the payment order instructs payment of $1,000,000. Case #3. A payment order is sent to the receiving bank and then, by mistake, the same payment order is sent to the receiving bank again. In Case #3, the receiving bank may have no way of knowing whether the second order is a duplicate of the first or is another order. Similarly, in Case #1 and Case #2, the receiving bank may have no way of knowing that the error exists. In each case, if this section does not apply and the funds transfer is completed, Sender is obliged to pay the order. Section 4A-402. Sender's remedy, based on payment by mistake, is to recover from the beneficiary that received payment.
Sometimes, however, transmission of payment orders of the sender to the receiving bank is made pursuant to a security procedure designed to detect one or more of the errors described above. Since "security procedure" is defined by Section 4A-201 as "a procedure established by agreement of a customer and a receiving bank for the purpose of * * * detecting error * * *," Section 4A-205 does not apply if the receiving bank and the customer did not agree to the establishment of a procedure for detecting error. A security procedure may be designed to detect an account number that is not one to which Sender normally makes payment. In that case, the security procedure may require a special verification that payment to the stated account number was intended. In the case of dollar amounts, the security procedure may require different codes for different dollar amounts. If a $1,000,000 payment order contains a code that is inappropriate for that amount, the error in amount should be detected. In the case of duplicate orders, the security procedure may require that each payment order be identified by a number or code that applies to no other order. If the number or code of each payment order received is registered in a computer base, the receiving bank can quickly identify a duplicate order. The three cases covered by this section are essentially similar. In each, if the error is not detected, some beneficiary will receive funds that the beneficiary was not intended to receive. If this section applies, the risk of loss with respect to the error of the sender is shifted to the bank which has the burden of recovering the funds from the beneficiary. The risk of loss is shifted to the bank only if the sender proves that the error would have been detected if there had been compliance with the procedure and that the sender (or an agent under Section 4A-206) complied. In the case of a duplicate order or a wrong beneficiary, the sender doesn't have to pay the order. In the case of an overpayment, the sender does not have to pay the order to the extent of the overpayment. If subsection (a)(1) applies, the position of the receiving bank is comparable to that of a receiving bank that erroneously executes a payment order as stated in Section 4A-303. However, failure of the sender to timely report the error is covered by Section 4A-205(b) rather than by Section 4A-304 which applies only to erroneous execution under Section 4A-303. A receiving bank to which the risk of loss is shifted by subsection (a)(1) or (2) is entitled to recover the amount erroneously paid to the beneficiary to the extent allowed by the law of mistake and restitution. Rights of the receiving bank against the beneficiary are similar to those of a receiving bank that erroneously executes a payment order as stated in Section 4A-303. Those rights are discussed in Comment 2 to Section 4A-303.
2. A security procedure established for the purpose of detecting error is not effective unless both sender and receiving bank comply with the procedure. Thus, the bank undertakes a duty of complying with the procedure for the benefit of the sender. This duty is recognized in subsection (a)(1). The loss with respect to the sender's error is shifted to the bank if the bank fails to comply with the procedure and the sender (or an agent under Section 4A-206) does comply. Although the customer may have been negligent in transmitting the erroneous payment order, the loss is put on the bank on a last-clear-chance theory. A similar analysis applies to subsection (b). If the loss with respect to an error is shifted to the receiving bank and the sender is notified by the bank that the erroneous payment order was accepted, the sender has a duty to exercise ordinary care to discover the error and notify the bank of the relevant facts within a reasonable time not exceeding 90 days. If the bank can prove that the sender failed in this duty it is entitled to compensation for the loss incurred as a result of the failure. Whether the bank is entitled to recover from the sender depends upon whether the failure to give timely notice would have made any difference. If the bank could not have recovered from the beneficiary that received payment under the erroneous payment order even if timely notice had been given, the sender's failure to notify did not cause any loss of the bank.
3. Section 4A-205 is subject to variation by agreement under Section 4A-501. Thus, if a receiving bank and its customer have agreed to a security procedure for detection of error, the liability of the receiving bank for failing to detect an error of the customer as provided in Section 4A-205 may be varied as provided in an agreement of the bank and the customer.
Section 36-4A-206. Transmission of payment order through funds-transfer or other communication system.
(a) If a payment order addressed to a receiving bank is transmitted to a funds-transfer system or other third-party communication system for transmittal to the bank, the system is deemed to be an agent of the sender for the purpose of transmitting the payment order to the bank. If there is a discrepancy between the terms of the payment order transmitted to the system and the terms of the payment order transmitted by the system to the bank, the terms of the payment order of the sender are those transmitted by the system. This section does not apply to a funds-transfer system of the Federal Reserve Banks.
(b) This section applies to cancellations and amendments of payment orders to the same extent it applies to payment orders.
1. A payment order may be issued to a receiving bank directly by delivery of a writing or electronic device or by an oral or electronic communication. If an agent of the sender is employed to transmit orders on behalf of the sender, the sender is bound by the order transmitted by the agent on the basis of agency law. Section 4A-206 is an application of that principle to cases in which a funds transfer or communication system acts as an intermediary in transmitting the sender's order to the receiving bank. The intermediary is deemed to be an agent of the sender for the purpose of transmitting payment orders and related messages for the sender. Section 4A-206 deals with error by the intermediary.
2. Transmission by an automated clearing house of an association of banks other than the Federal Reserve Banks is an example of a transaction covered by Section 4A-206. Suppose Originator orders Originator's Bank to cause a large number of payments to be made to many accounts in banks in various parts of the country. These payment orders are electronically transmitted to Originator's Bank and stored in an electronic device that is held by Originator's Bank. Or, transmission of the various payment orders is made by delivery to Originator's Bank of an electronic device containing the instruction to the bank. In either case the terms of the various payment orders by Originator are determined by the information contained in the electronic device. In order to execute the various orders, the information in the electronic device must be processed. For example, if some of the orders are for payments to accounts in Bank X and some to accounts in Bank Y, Originator's Bank will execute these orders of Originator by issuing a series of payment orders to Bank X covering all payments to accounts in that bank, and by issuing a series of payment orders to Bank Y covering all payments to accounts in that bank. The orders to Bank X may be transmitted together by means of an electronic device, and those to Bank Y may be included in another electronic device. Typically, this processing is done by an automated clearing house acting for a group of banks including Originator's Bank. The automated clearing house is a funds transfer system. Section 4A-105(a)(5). Originator's Bank delivers Originator's electronic device or transmits the information contained in the device to the funds transfer system for processing into payment orders of Originator's Bank to the appropriate beneficiary's banks. The processing may result in an erroneous payment order. Originator's Bank, by use of Originator's electronic device, may have given information to the funds transfer system instructing payment of $100,000 to an account in Bank X, but because of human error or an equipment malfunction the processing may have converted that instruction into an instruction to Bank X to make a payment of $1,000,000. Under Section 4A-206, Originator's Bank issued a payment order for $1,000,000 to Bank X when the erroneous information was sent to Bank X. Originator's Bank is responsible for the error of the automated clearing house. The liability of the funds transfer system that made the error is not governed by Article 4A. It is left to the law of contract, a funds transfer system rule, or other applicable law.
In the hypothetical case just discussed, if the automated clearing house is operated by a Federal Reserve Bank, the analysis is different. Section 4A-206 does not apply. Originator's Bank will execute Originator's payment orders by delivery or transmission of the electronic information to the Federal Reserve Bank for processing. The result is that Originator's Bank has issued payment orders to the Federal Reserve Bank which, in this case, is acting as an intermediary bank. When the Federal Reserve Bank has processed the information given to it by Originator's Bank, it will issue payment orders to the various beneficiary's banks. If the processing results in an erroneous payment order, the Federal Reserve Bank has erroneously executed the payment order of Originator's Bank and the case is governed by Section 4A-303.
Section 36-4A-207. Misdescription of beneficiary.
(a) Subject to subsection (b), if, in a payment order received by the beneficiary's bank, the name, bank account number, or other identification of the beneficiary refers to a nonexistent or unidentifiable person or account, no person has rights as a beneficiary of the order and acceptance of the order cannot occur.
(b) If a payment order received by the beneficiary's bank identifies the beneficiary both by name and by an identifying or bank account number and the name and number identify different persons, the following rules apply:
(1) Except as otherwise provided in subsection (c), if the beneficiary's bank does not know that the name and number refer to different persons, it may rely on the number as the proper identification of the beneficiary of the order. The beneficiary's bank need not determine whether the name and number refer to the same person.
(2) If the beneficiary's bank pays the person identified by name or knows that the name and number identify different persons, no person has rights as beneficiary except the person paid by the beneficiary's bank if that person was entitled to receive payment from the originator of the funds transfer. If no person has rights as beneficiary, acceptance of the order cannot occur.
(c) If (i) a payment order described in subsection (b) is accepted, (ii) the originator's payment order described the beneficiary inconsistently by name and number, and (iii) the beneficiary's bank pays the person identified by number as permitted by subsection (b)(1), the following rules apply:
(1) If the originator is a bank, the originator is obliged to pay its order.
(2) If the originator is not a bank and proves that the person identified by number was not entitled to receive payment from the originator, the originator is not obliged to pay its order unless the originator's bank proves that the originator, before acceptance of the originator's order, had notice that payment of a payment order issued by the originator might be made by the beneficiary's bank on the basis of an identifying or bank account number even if it identifies a person different from the named beneficiary. Proof of notice may be made by any admissible evidence. The originator's bank satisfies the burden of proof if it proves that the originator, before the payment order was accepted, signed a writing stating the information to which the notice relates.
(d) In a case governed by subsection (b)(1), if the beneficiary's bank rightfully pays the person identified by number and that person was not entitled to receive payment from the originator, the amount paid may be recovered from that person to the extent allowed by the law governing mistake and restitution as follows:
(1) If the originator is obliged to pay its payment order as stated in subsection (c), the originator has the right to recover.
(2) If the originator is not a bank and is not obliged to pay its payment order, the originator's bank has the right to recover.
1. Subsection (a) deals with the problem of payment orders issued to the beneficiary's bank for payment to nonexistent or unidentifiable persons or accounts. Since it is not possible in that case for the funds transfer to be completed, subsection (a) states that the order cannot be accepted. Under Section 4A-402(c), a sender of a payment order is not obliged to pay its order unless the beneficiary's bank accepts a payment order instructing payment to the beneficiary of that sender's order. Thus, if the beneficiary of a funds transfer is nonexistent or unidentifiable, each sender in the funds transfer that has paid its payment order is entitled to get its money back.
2. Subsection (b), which takes precedence over subsection (a), deals with the problem of payment orders in which the description of the beneficiary does not allow identification of the beneficiary because the beneficiary is described by name and by an identifying number or an account number and the name and number refer to different persons. A very large percentage of payment orders issued to the beneficiary's bank by another bank are processed by automated means using machines capable of reading orders on standard formats that identify the beneficiary by an identifying number or the number of a bank account. The processing of the order by the beneficiary's bank and the crediting of the beneficiary's account are done by use of the identifying or bank account number without human reading of the payment order itself. The process is comparable to that used in automated payment of checks. The standard format, however, may also allow the inclusion of the name of the beneficiary and other information which can be useful to the beneficiary's bank and the beneficiary but which plays no part in the process of payment. If the beneficiary's bank has both the account number and name of the beneficiary supplied by the originator of the funds transfer, it is possible for the beneficiary's bank to determine whether the name and number refer to the same person, but if a duty to make that determination is imposed on the beneficiary's bank the benefits of automated payment are lost. Manual handling of payment orders is both expensive and subject to human error. If payment orders can be handled on an automated basis there are substantial economies of operation and the possibility of clerical error is reduced. Subsection (b) allows banks to utilize automated processing by allowing banks to act on the basis of the number without regard to the name if the bank does not know that the name and number refer to different persons. "Know" is defined in Section 1-201(25) to mean actual knowledge, and Section 1-201(27) states rules for determining when an organization has knowledge of information received by the organization. The time of payment is the pertinent time at which knowledge or lack of knowledge must be determined.
Although the clear trend is for beneficiary's banks to process payment orders by automated means, Section 4A-207 is not limited to cases in which processing is done by automated means. A bank that processes by semi-automated means or even manually may rely on number as stated in Section 4A-207.
In cases covered by subsection (b) the erroneous identification would in virtually all cases be the identifying or bank account number. In the typical case the error is made by the originator of the funds transfer. The originator should know the name of the person who is to receive payment and can further identify that person by an address that would normally be known to the originator. It is not unlikely, however, that the originator may not be sure whether the identifying or account number refers to the person the originator intends to pay. Subsection (b)(1) deals with the typical case in which the beneficiary's bank pays on the basis of the account number and is not aware at the time of payment that the named beneficiary is not the holder of the account which was paid. In some cases the false number will be the result of error by the originator. In other cases fraud is involved. For example, Doe is the holder of shares in Mutual Fund. Thief, impersonating Doe, requests redemption of the shares and directs Mutual Fund to wire the redemption proceeds to Doe's account #12345 in Beneficiary's Bank. Mutual Fund originates a funds transfer by issuing a payment order to Originator's Bank to make the payment to Doe's account #12345 in Beneficiary's Bank. Originator's Bank executes the order by issuing a conforming payment order to Beneficiary's Bank which makes payment to account #12345. That account is the account of Roe rather than Doe. Roe might be a person acting in concert with Thief or Roe might be an innocent third party. Assume that Roe is a gem merchant that agreed to sell gems to Thief who agreed to wire the purchase price to Roe's account in Beneficiary's Bank. Roe believed that the credit to Roe's account was a transfer of funds from Thief and released the gems to Thief in good faith in reliance on the payment. The case law is unclear on the responsibility of a beneficiary's bank in carrying out a payment order in which the identification of the beneficiary by name and number is conflicting. See Securities Fund Services, Inc. v. American National Bank, 542 F.Supp. 323 (N.D.Ill. 1982) and Bradford Trust Co. v. Texas American Bank, 790 F.2d 407 (5th Cir. 1986). Section 4A-207 resolves the issue.
If Beneficiary's Bank did not know about the conflict between the name and number, subsection (b)(1) applies. Beneficiary's Bank has no duty to determine whether there is a conflict and it may rely on the number as the proper identification of the beneficiary of the order. When it accepts the order, it is entitled to payment from Originator's Bank. Section 4A-402(b). On the other hand, if Beneficiary's Bank knew about the conflict between the name and number and nevertheless paid Roe, subsection (b)(2) applies. Under that provision, acceptance of the payment order of Originator's Bank did not occur because there is no beneficiary of that order. Since acceptance did not occur Originator's Bank is not obliged to pay Beneficiary's Bank. Section 4A-402(b). Similarly, Mutual Fund is excused from its obligation to pay Originator's Bank. Section 4A-402(c). Thus, Beneficiary's Bank takes the loss. Its only cause of action is against Thief. Roe is not obliged to return the payment to the beneficiary's bank because Roe received the payment in good faith and for value. Article 4A makes irrelevant the issue of whether Mutual Fund was or was not negligent in issuing its payment order.
3. Normally, subsection (b)(1) will apply to the hypothetical case discussed in Comment 2. Beneficiary's Bank will pay on the basis of the number without knowledge of the conflict. In that case subsection (c) places the loss on either Mutual Fund or Originator's Bank. It is not unfair to assign the loss to Mutual Fund because it is the person who dealt with the impostor and it supplied the wrong account number. It could have avoided the loss if it had not used an account number that it was not sure was that of Doe. Mutual Fund, however, may not have been aware of the risk involved in giving both name and number. Subsection (c) is designed to protect the originator, Mutual Fund, in this case. Under that subsection, the originator is responsible for the inconsistent description of the beneficiary if it had notice that the order might be paid by the beneficiary's bank on the basis of the number. If the originator is a bank, the originator always has that responsibility. The rationale is that any bank should know how payment orders are processed and paid. If the originator is not a bank, the originator's bank must prove that its customer, the originator, had notice. Notice can be proved by any admissible evidence, but the bank can always prove notice by providing the customer with a written statement of the required information and obtaining the customer's signature to the statement. That statement will then apply to any payment order accepted by the bank thereafter. The information need not be supplied more than once.
In the hypothetical case if Originator's Bank made the disclosure stated in the last sentence of subsection (c)(2), Mutual Fund must pay Originator's Bank. Under subsection (d)(1), Mutual Fund has an action to recover from Roe if recovery from Roe is permitted by the law governing mistake and restitution. Under the assumed facts Roe should be entitled to keep the money as a person who took it in good faith and for value since it was taken as payment for the gems. In that case, Mutual Fund's only remedy is against Thief. If Roe was not acting in good faith, Roe has to return the money to Mutual Fund. If Originator's Bank does not prove that Mutual Fund had notice as stated in subsection (c)(2), Mutual Fund is not required to pay Originator's Bank. Thus, the risk of loss falls on Originator's Bank whose remedy is against Roe or Thief as stated above. Subsection (d)(2).
Section 36-4A-208. Misdescription of intermediary bank or beneficiary's bank.
(a) This subsection applies to a payment order identifying an intermediary bank or the beneficiary's bank only by an identifying number.
(1) The receiving bank may rely on the number as the proper identification of the intermediary or beneficiary's bank and need not determine whether the number identifies a bank.
(2) The sender is obliged to compensate the receiving bank for any loss and expenses incurred by the receiving bank as a result of its reliance on the number in executing or attempting to execute the order.
(b) This subsection applies to a payment order identifying an intermediary bank or the beneficiary's bank both by name and an identifying number if the name and number identify different persons.
(1) If the sender is a bank, the receiving bank may rely on the number as the proper identification of the intermediary or beneficiary's bank if the receiving bank, when it executes the sender's order, does not know that the name and number identify different persons. The receiving bank need not determine whether the name and number refer to the same person or whether the number refers to a bank. The sender is obliged to compensate the receiving bank for any loss and expenses incurred by the receiving bank as a result of its reliance on the number in executing or attempting to execute the order.
(2) If the sender is not a bank and the receiving bank proves that the sender, before the payment order was accepted, had notice that the receiving bank might rely on the number as the proper identification of the intermediary or beneficiary's bank even if it identifies a person different from the bank identified by name, the rights and obligations of the sender and the receiving bank are governed by subsection (b)(1), as though the sender were a bank. Proof of notice may be made by any admissible evidence. The receiving bank satisfies the burden of proof if it proves that the sender, before the payment order was accepted, signed a writing stating the information to which the notice relates.
(3) Regardless of whether the sender is a bank, the receiving bank may rely on the name as the proper identification of the intermediary or beneficiary's bank if the receiving bank, at the time it executes the sender's order, does not know that the name and number identify different persons. The receiving bank need not determine whether the name and number refer to the same person.
(4) If the receiving bank knows that the name and number identify different persons, reliance on either the name or the number in executing the sender's payment order is a breach of the obligation stated in Section 36-4A-302(a)(1).
1. This section addresses an issue similar to that addressed by Section 4A-207. Because of automation in the processing of payment orders, a payment order may identify the beneficiary's bank or an intermediary bank by an identifying number. The bank identified by number might or might not also be identified by name. The following two cases illustrate Section 4A-208(a) and (b):
Case #1. Originator's payment order to Originator's Bank identifies the beneficiary's bank as Bank A and instructs payment to Account #12345 in that bank. Originator's Bank executes Originator's order by issuing a payment order to Intermediary Bank. In the payment order of Originator's Bank, the beneficiary's bank is identified as Bank A but is also identified by number, #67890. The identifying number refers to Bank B rather than Bank A. If processing by Intermediary Bank of the payment order of Originator's Bank is done by automated means, Intermediary Bank, in executing the order, will rely on the identifying number and will issue a payment order to Bank B rather than Bank A. If there is an Account #12345 in Bank B, the payment order of Intermediary Bank would normally be accepted and payment would be made to a person not intended by Originator. In this case, Section 4A-208(b)(1) puts the risk of loss on Originator's Bank. Intermediary Bank may rely on the number #67890 as the proper identification of the beneficiary's bank. Intermediary Bank has properly executed the payment order of Originator's Bank. By using the wrong number to describe the beneficiary's bank, Originator's Bank has improperly executed Originator's payment order because the payment order of Originator's Bank provides for payment to the wrong beneficiary, the holder of Account #12345 in Bank B rather than the holder of Account #12345 in Bank A. Section 4A-302(a) (1) and Section 4A-303(c). Originator's Bank is not entitled to payment from Originator but is required to pay Intermediary Bank. Section 4A-303(c) and Section 4A-402(c). Intermediary Bank is also entitled to compensation for any loss and expenses resulting from the error by Originator's Bank.
If there is no Account #12345 in Bank B, the result is that there is no beneficiary of the payment order issued by Originator's Bank and the funds transfer will not be completed. Originator's Bank is not entitled to payment from Originator and Intermediary Bank is not entitled to payment from Originator's Bank. Section 4A-402(c). Since Originator's Bank improperly executed Originator's payment order, it may be liable for damages under Section 4A-305. As stated above, Intermediary Bank is entitled to compensation for loss and expenses resulting from the error by Originator's Bank.
Case #2. Suppose the same payment order by Originator to Originator's Bank as in Case #1. In executing the payment order Originator's Bank issues a payment order to Intermediary Bank in which the beneficiary's bank is identified only by number, #67890. That number does not refer to Bank A. Rather, it identifies a person that is not a bank. If processing by Intermediary Bank of the payment order of Originator's Bank is done by automated means, Intermediary Bank will rely on the number #67890 to identify the beneficiary's bank. Intermediary Bank has no duty to determine whether the number identifies a bank. The funds transfer cannot be completed in this case because no bank is identified as the beneficiary's bank. Subsection (a) puts the risk of loss on Originator's Bank. Originator's Bank is not entitled to payment from Originator. Section 4A-402(c). Originator's Bank has improperly executed Originator's payment order and may be liable for damages under Section 4A-305. Originator's Bank is obliged to compensate Intermediary Bank for loss and expenses resulting from the error by Originator's Bank.
Subsection (a) also applies if #67890 identifies a bank, but the bank is not Bank A. Intermediary Bank may rely on the number as the proper identification of the beneficiary's bank. If the bank to which Intermediary Bank sends its payment order accepts the order, Intermediary Bank is entitled to payment from Originator's Bank, but Originator's Bank is not entitled to payment from Originator. The analysis is similar to that in Case #1.
2. Subsection (b)(2) of Section 4A-208 addresses cases in which an erroneous identification of a beneficiary's bank or intermediary bank by name and number is made in a payment order of a sender that is not a bank. Suppose Originator issues a payment order to Originator's Bank that instructs that bank to use an intermediary bank identified as Bank A and by an identifying number, #67890. The identifying number refers to Bank B. Originator intended to identify Bank A as intermediary bank. If Originator's Bank relied on the number and issued a payment order to Bank B, the rights of Originator's Bank depend upon whether the proof of notice stated in subsection (b)(2) is made by Originator's Bank. If proof is made, Originator's Bank's rights are governed by subsection (b)(1) of Section 4A-208. Originator's Bank is not liable for breach of Section 4A-302(a)(1) and is entitled to compensation from Originator for any loss and expenses resulting from Originator's error. If notice is not proved, Originator's Bank may not rely on the number in executing Originator's payment order. Since Originator's Bank does not get the benefit of subsection (b)(1) in that case, Originator's Bank improperly executed Originator's payment order and is in breach of the obligation stated in Section 4A-302(a)(1). If notice is not given, Originator's Bank can rely on the name if it is not aware of the conflict in name and number. Subsection (b)(3).
3. Although the principal purpose of Section 4A-208 is to accommodate automated processing of payment orders, Section 4A-208 applies regardless of whether processing is done by automation, semi-automated means, or manually.
Section 36-4A-209. Acceptance of payment order.
(a) Subject to subsection (d), a receiving bank other than the beneficiary's bank accepts a payment order when it executes the order.
(b) Subject to subsections (c) and (d), a beneficiary's bank accepts a payment order at the earliest of the following times:
(1) when the bank (i) pays the beneficiary as stated in Section 36-4A-405(a) or 36-4A-405(b), or (ii) notifies the beneficiary of receipt of the order or that the account of the beneficiary has been credited with respect to the order unless the notice indicates that the bank is rejecting the order or that funds with respect to the order may not be withdrawn or used until receipt of payment from the sender of the order;
(2) when the bank receives payment of the entire amount of the sender's order pursuant to Section 36-4A-403(a)(1) or 36-4A-403(a)(2); or
(3) the opening of the next funds-transfer business day of the bank following the payment date of the order if, at that time, the amount of the sender's order is fully covered by a withdrawable credit balance in an authorized account of the sender or the bank has otherwise received full payment from the sender, unless the order was rejected before that time or is rejected within (i) one hour after that time, or (ii) one hour after the opening of the next business day of the sender following the payment date if that time is later. If notice of rejection is received by the sender after the payment date and the authorized account of the sender does not bear interest, the bank is obliged to pay interest to the sender on the amount of the order for the number of days elapsing after the payment date to the day the sender receives notice or learns that the order was not accepted, counting that day as an elapsed day. If the withdrawable credit balance during that period falls below the amount of the order, the amount of interest payable is reduced accordingly.
(c) Acceptance of a payment order cannot occur before the order is received by the receiving bank. Acceptance does not occur under subsection (b)(2) or (b)(3) if the beneficiary of the payment order does not have an account with the receiving bank, the account has been closed, or the receiving bank is not permitted by law to receive credits for the beneficiary's account.
(d) A payment order issued to the originator's bank cannot be accepted until the payment date if the bank is the beneficiary's bank, or the execution date if the bank is not the beneficiary's bank. If the originator's bank executes the originator's payment order before the execution date or pays the beneficiary of the originator's payment order before the payment date and the payment order is subsequently canceled pursuant to Section 36-4A-211(b), the bank may recover from the beneficiary any payment received to the extent allowed by the law governing mistake and restitution.
1. This section treats the sender's payment order as a request by the sender to the receiving bank to execute or pay the order and that request can be accepted or rejected by the receiving bank. Section 4A-209 defines when acceptance occurs. Section 4A-210 covers rejection. Acceptance of the payment order imposes an obligation on the receiving bank to the sender if the receiving bank is not the beneficiary's bank, or to the beneficiary if the receiving bank is the beneficiary's bank. These obligations are stated in Section 4A-302 and Section 4A-404.
2. Acceptance by a receiving bank other than the beneficiary's bank is defined in Section 4A-209(a). That subsection states the only way that a bank other than the beneficiary's bank can accept a payment order. A payment order to a bank other than the beneficiary's bank is, in effect, a request that the receiving bank execute the sender's order by issuing a payment order to the beneficiary's bank or to an intermediary bank. Normally, acceptance occurs at the time of execution, but there is an exception stated in subsection (d) and discussed in Comment 9. Execution occurs when the receiving bank "issues a payment order intended to carry out" the sender's order. Section 4A-301(a). In some cases the payment order issued by the receiving bank may not conform to the sender's order. For example, the receiving bank might make a mistake in the amount of its order, or the order might be issued to the wrong beneficiary's bank or for the benefit of the wrong beneficiary. In all of these cases there is acceptance of the sender's order by the bank when the receiving bank issues its order intended to carry out the sender's order, even though the bank's payment order does not in fact carry out the instruction of the sender. Improper execution of the sender's order may lead to liability to the sender for damages or it may mean that the sender is not obliged to pay its payment order. These matters are covered in Section 4A-303, Section 4A-305, and Section 4A-402.
3. A receiving bank has no duty to accept a payment order unless the bank makes an agreement, either before or after issuance of the payment order, to accept it, or acceptance is required by a funds transfer system rule. If the bank makes such an agreement it incurs a contractual obligation based on the agreement and may be held liable for breach of contract if a failure to execute violates the agreement. In many cases a bank will enter into an agreement with its customer to govern the rights and obligations of the parties with respect to payment orders issued to the bank by the customer or, in cases in which the sender is also a bank, there may be a funds transfer system rule that governs the obligations of a receiving bank with respect to payment orders transmitted over the system. Such agreements or rules can specify the circumstances under which a receiving bank is obliged to execute a payment order and can define the extent of liability of the receiving bank for breach of the agreement or rule. Section 4A-305(d) states the liability for breach of an agreement to execute a payment order.
4. In the case of a payment order issued to the beneficiary's bank, acceptance is defined in Section 4A-209(b). The function of a beneficiary's bank that receives a payment order is different from that of a receiving bank that receives a payment order for execution. In the typical case, the beneficiary's bank simply receives payment from the sender of the order, credits the account of the beneficiary and notifies the beneficiary of the credit. Acceptance by the beneficiary's bank does not create any obligation to the sender. Acceptance by the beneficiary's bank means that the bank is liable to the beneficiary for the amount of the order. Section 4A-404(a). There are three ways in which the beneficiary's bank can accept a payment order which are described in the following comments.
5. Under Section 4A-209(b)(1), the beneficiary's bank can accept a payment order by paying the beneficiary. In the normal case of crediting an account of the beneficiary, payment occurs when the beneficiary is given notice of the right to withdraw the credit, the credit is applied to a debt of the beneficiary, or "funds with respect to the order" are otherwise made available to the beneficiary. Section 4A-405(a). The quoted phrase covers cases in which funds are made available to the beneficiary as a result of receipt of a payment order for the benefit of the beneficiary but the release of funds is not expressed as payment of the order. For example, the beneficiary's bank might express a release of funds equal to the amount of the order as a "loan" that will be automatically repaid when the beneficiary's bank receives payment by the sender of the order. If the release of funds is designated as a loan pursuant to a routine practice of the bank, the release is conditional payment of the order rather than a loan, particularly if normal incidents of a loan such as the signing of a loan agreement or note and the payment of interest are not present. Such a release of funds is payment to the beneficiary under Section 4A-405(a). Under Section 4A-405(c) the bank cannot recover the money from the beneficiary if the bank does not receive payment from the sender of the payment order that it accepted. Exceptions to this rule are stated in Section 4A-405(d) and (e). The beneficiary's bank may also accept by notifying the beneficiary that the order has been received. "Notifies" is defined in Section 1-201(26). In some cases a beneficiary's bank will receive a payment order during the day but settlement of the sender's obligation to pay the order will not occur until the end of the day. If the beneficiary's bank wants to defer incurring liability to the beneficiary until the beneficiary's bank receives payment, it can do so. The beneficiary's bank incurs no liability to the beneficiary with respect to a payment order that it receives until it accepts the order. If the bank does not accept pursuant to subsection (b)(1), acceptance does not occur until the end of the day when the beneficiary's bank receives settlement. If the sender settles, the payment order will be accepted under subsection (b)(2) and the funds will be released to the beneficiary the next morning. If the sender doesn't settle, no acceptance occurs. In either case the beneficiary's bank suffers no loss.
6. In most cases the beneficiary's bank will receive a payment order from another bank. If the sender is a bank and the beneficiary's bank receives payment from the sender by final settlement through the Federal Reserve System or a funds transfer system (Section 4A-403(a)(1)) or, less commonly, through credit to an account of the beneficiary's bank with the sender or another bank (Section 4A-403(a)(2)), acceptance by the beneficiary's bank occurs at the time payment is made. Section 4A-209(b)(2). A minor exception to this rule is stated in Section 4A-209(c). Section 4A-209(b)(2) results in automatic acceptance of payment orders issued to a beneficiary's bank by means of Fedwire because the Federal Reserve account of the beneficiary's bank is credited and final payment is made to that bank when the payment order is received.
Subsection (b)(2) would also apply to cases in which the beneficiary's bank mistakenly pays a person who is not the beneficiary of the payment order issued to the beneficiary's bank. For example, suppose the payment order provides for immediate payment to Account #12345. The beneficiary's bank erroneously credits Account #12346 and notifies the holder of that account of the credit. No acceptance occurs in this case under subsection (b)(1) because the beneficiary of the order has not been paid or notified. The holder of Account #12345 is the beneficiary of the order issued to the beneficiary's bank. But acceptance will normally occur if the beneficiary's bank takes no other action, because the bank will normally receive settlement with respect to the payment order. At that time the bank has accepted because the sender paid its payment order. The bank is liable to pay the holder of Account #12345. The bank has paid the holder of Account #12346 by mistake, and has a right to recover the payment if the credit is withdrawn, to the extent provided in the law governing mistake and restitution.
7. Subsection (b)(3) covers cases of inaction by the beneficiary's bank. It applies whether or not the sender is a bank and covers a case in which the sender and the beneficiary both have accounts with the receiving bank and payment will be made by debiting the account of the sender and crediting the account of the beneficiary. Subsection (b)(3) is similar to subsection (b)(2) in that it bases acceptance by the beneficiary's bank on payment by the sender. Payment by the sender is effected by a debit to the sender's account if the account balance is sufficient to cover the amount of the order. On the payment date (Section 4A-401) of the order the beneficiary's bank will normally credit the beneficiary's account and notify the beneficiary of receipt of the order if it is satisfied that the sender's account balance covers the order or is willing to give credit to the sender. In some cases, however, the bank may not be willing to give credit to the sender and it may not be possible for the bank to determine until the end of the day on the payment date whether there are sufficient good funds in the sender's account. There may be various transactions during the day involving funds going into and out of the account. Some of these transactions may occur late in the day or after the close of the banking day. To accommodate this situation, subsection (b)(3) provides that the status of the account is determined at the opening of the next funds transfer business day of the beneficiary's bank after the payment date of the order. If the sender's account balance is sufficient to cover the order, the beneficiary's bank has a source of payment and the result in almost all cases is that the bank accepts the order at that time if it did not previously accept under subsection (b)(1). In rare cases, a bank may want to avoid acceptance under subsection (b)(3) by rejecting the order as discussed in Comment 8.
8. Section 4A-209 is based on a general principle that a receiving bank is not obliged to accept a payment order unless it has agreed or is bound by a funds transfer system rule to do so. Thus, provision is made to allow the receiving bank to prevent acceptance of the order. This principle is consistently followed if the receiving bank is not the beneficiary's bank. If the receiving bank is not the beneficiary's bank, acceptance is in the control of the receiving bank because it occurs only if the order is executed. But in the case of the beneficiary's bank acceptance can occur by passive receipt of payment under subsection (b)(2) or (3). In the case of a payment made by Fedwire acceptance cannot be prevented. In other cases the beneficiary's bank can prevent acceptance by giving notice of rejection to the sender before payment occurs under Section 4A-403(a)(1) or (2). A minor exception to the ability of the beneficiary's bank to reject is stated in Section 4A-502(c)(3).
Under subsection (b)(3) acceptance occurs at the opening of the next funds transfer business day of the beneficiary's bank following the payment date unless the bank rejected the order before that time or it rejects within one hour after that time. In some cases the sender and the beneficiary's bank may not be in the same time zone or the beginning of the business day of the sender and the funds transfer business day of the beneficiary's bank may not coincide. For example, the sender may be located in California and the beneficiary's bank in New York. Since in most cases notice of rejection would be communicated electronically or by telephone, it might not be feasible for the bank to give notice before one hour after the opening of the funds transfer business day in New York because at that hour, the sender's business day may not have started in California. For that reason, there are alternative deadlines stated in subsection (b)(3). In the case stated, the bank acts in time if it gives notice within one hour after the opening of the business day of the sender. But if the notice of rejection is received by the sender after the payment date, the bank is obliged to pay interest to the sender if the sender's account does not bear interest. In that case the bank had the use of funds of the sender that the sender could reasonably assume would be used to pay the beneficiary. The rate of interest is stated in Section 4A-506. If the sender receives notice on the day after the payment date the sender is entitled to one day's interest. If receipt of notice is delayed for more than one day, the sender is entitled to interest for each additional day of delay.
9. Subsection (d) applies only to a payment order by the originator of a funds transfer to the originator's bank and it refers to the following situation. On April 1, Originator instructs Bank A to make a payment on April 15 to the account of Beneficiary in Bank B. By mistake, on April 1, Bank A executes Originator's payment order by issuing a payment order to Bank B instructing immediate payment to Beneficiary. Bank B credited Beneficiary's account and immediately released the funds to Beneficiary. Under subsection (d) no acceptance by Bank A occurred on April 1 when Originator's payment order was executed because acceptance cannot occur before the execution date which in this case would be April 15 or shortly before that date. Section 4A-301(b). Under Section 4A-402(c), Originator is not obliged to pay Bank A until the order is accepted and that can't occur until the execution date. But Bank A is required to pay Bank B when Bank B accepted Bank A's order on April 1. Unless Originator and Beneficiary are the same person, in almost all cases Originator is paying a debt owed to Beneficiary and early payment does not injure Originator because Originator does not have to pay Bank A until the execution date. Section 4A-402(c). Bank A takes the interest loss. But suppose that on April 3, Originator concludes that no debt was owed to Beneficiary or that the debt was less than the amount of the payment order. Under Section 4A-211(b) Originator can cancel its payment order if Bank A has not accepted. If early execution of Originator's payment order is acceptance, Originator can suffer a loss because cancellation after acceptance is not possible without the consent of Bank A and Bank B. Section 4A-211(c). If Originator has to pay Bank A, Originator would be required to seek recovery of the money from Beneficiary. Subsection (d) prevents this result and puts the risk of loss on Bank A by providing that the early execution does not result in acceptance until the execution date. Since on April 3 Originator's order was not yet accepted, Originator can cancel it under Section 4A-211(b). The result is that Bank A is not entitled to payment from Originator but is obliged to pay Bank B. Bank A has paid Beneficiary by mistake. If Originator's payment order is cancelled, Bank A becomes the originator of an erroneous funds transfer to Beneficiary. Bank A has the burden of recovering payment from Beneficiary on the basis of a payment by mistake. If Beneficiary received the money in good faith in payment of a debt owed to Beneficiary by Originator, the law of mistake and restitution may allow Beneficiary to keep all or part of the money received. If Originator owed money to Beneficiary, Bank A has paid Originator's debt and, under the law of restitution, which applies pursuant to Section 1-103, Bank A is subrogated to Beneficiary's rights against Originator on the debt.
If Bank A is the Beneficiary's bank and Bank A credited Beneficiary's account and released the funds to Beneficiary on April 1, the analysis is similar. If Originator's order is cancelled, Bank A has paid Beneficiary by mistake. The right of Bank A to recover the payment from Beneficiary is similar to Bank A's rights in the preceding paragraph.
Section 36-4A-210. Rejection of payment order.
(a) A payment order is rejected by the receiving bank by a notice of rejection transmitted to the sender orally, electronically, or in writing. A notice of rejection need not use any particular words and is sufficient if it indicates that the receiving bank is rejecting the order or will not execute or pay the order. Rejection is effective when the notice is given if transmission is by a means that is reasonable in the circumstances. If notice of rejection is given by a means that is not reasonable, rejection is effective when the notice is received. If an agreement of the sender and receiving bank establishes the means to be used to reject a payment order, (i) any means complying with the agreement is reasonable and (ii) any means not complying is not reasonable unless no significant delay in receipt of the notice resulted from the use of the noncomplying means.
(b) This subsection applies if a receiving bank other than the beneficiary's bank fails to execute a payment order despite the existence on the execution date of a withdrawable credit balance in an authorized account of the sender sufficient to cover the order. If the sender does not receive notice of rejection of the order on the execution date and the authorized account of the sender does not bear interest, the bank is obliged to pay interest to the sender on the amount of the order for the number of days elapsing after the execution date to the earlier of the day the order is canceled pursuant to Section 36-4A-211(d) or the day the sender receives notice or learns that the order was not executed, counting the final day of the period as an elapsed day. If the withdrawable credit balance during that period falls below the amount of the order, the amount of interest is reduced accordingly.
(c) If a receiving bank suspends payments, all unaccepted payment orders issued to it are deemed rejected at the time the bank suspends payments.
(d) Acceptance of a payment order precludes a later rejection of the order. Rejection of a payment order precludes a later acceptance of the order.
1. With respect to payment orders issued to a receiving bank other than the beneficiary's bank, notice of rejection is not necessary to prevent acceptance of the order. Acceptance can occur only if the receiving bank executes the order. Section 4A-209(a). But notice of rejection will routinely be given by such a bank in cases in which the bank cannot or is not willing to execute the order for some reason. There are many reasons why a bank doesn't execute an order. The payment order may not clearly instruct the receiving bank because of some ambiguity in the order or an internal inconsistency. In some cases, the receiving bank may not be able to carry out the instruction because of equipment failure, credit limitations on the receiving bank, or some other factor which makes proper execution of the order infeasible. In those cases notice of rejection is a means of informing the sender of the facts so that a corrected payment order can be transmitted or the sender can seek alternate means of completing the funds transfer. The other major reason for not executing an order is that the sender's account is insufficient to cover the order and the receiving bank is not willing to give credit to the sender. If the sender's account is sufficient to cover the order and the receiving bank chooses not to execute the order, notice of rejection is necessary to prevent liability to pay interest to the sender if the case falls within Section 4A-210(b) which is discussed in Comment 3.
2. A payment order to the beneficiary's bank can be accepted by inaction of the bank. Section 4A-209(b)(2) and (3). To prevent acceptance under those provisions it is necessary for the receiving bank to send notice of rejection before acceptance occurs. Subsection (a) of Section 4A-210 states the rule that rejection is accomplished by giving notice of rejection. This incorporates the definitions in Section 1-201(26). Rejection is effective when notice is given if it is given by a means that is reasonable in the circumstances. Otherwise it is effective when the notice is received. The question of when rejection is effective is important only in the relatively few cases under subsection (b)(2) and (3) in which a notice of rejection is necessary to prevent acceptance. The question of whether a particular means is reasonable depends on the facts in a particular case. In a very large percentage of cases the sender and the receiving bank will be in direct electronic contact with each other and in those cases a notice of rejection can be transmitted instantaneously. Since time is of the essence in a large proportion of funds transfers, some quick means of transmission would usually be required, but this is not always the case. The parties may specify by agreement the means by which communication between the parties is to be made.
3. Subsection (b) deals with cases in which a sender does not learn until after the execution date that the sender's order has not been executed. It applies only to cases in which the receiving bank was assured of payment because the sender's account was sufficient to cover the order. Normally, the receiving bank will accept the sender's order if it is assured of payment, but there may be some cases in which the bank chooses to reject. Unless the receiving bank had obligated itself by agreement to accept, the failure to accept is not wrongful. There is no duty of the receiving bank to accept the payment order unless it is obliged to accept by express agreement. Section 4A-212. But even if the bank has not acted wrongfully, the receiving bank had the use of the sender's money that the sender could reasonably assume was to be the source of payment of the funds transfer. Until the sender learns that the order was not accepted the sender is denied the use of that money. Subsection (b) obliges the receiving bank to pay interest to the sender as restitution unless the sender receives notice of rejection on the execution date. The time of receipt of notice is determined pursuant to Section 1-201(27). The rate of interest is stated in Section 4A-506. If the sender receives notice on the day after the execution date, the sender is entitled to one day's interest. If receipt of notice is delayed for more than one day, the sender is entitled to interest for each additional day of delay.
4. Subsection (d) treats acceptance and rejection as mutually exclusive. If a payment order has been accepted, rejection of that order becomes impossible. If a payment order has been rejected it cannot be accepted later by the receiving bank. Once notice of rejection has been given, the sender may have acted on the notice by making the payment through other channels. If the receiving bank wants to act on a payment order that it has rejected it has to obtain the consent of the sender. In that case the consent of the sender would amount to the giving of a second payment order that substitutes for the rejected first order. If the receiving bank suspends payments (Section 4-104(1)(k)), subsection (c) provides that unaccepted payment orders are deemed rejected at the time suspension of payments occurs. This prevents acceptance by passage of time under Section 4A-209(b)(3).
Section 36-4A-211. Cancellation and amendment of payment order.
(a) A communication of the sender of a payment order canceling or amending the order may be transmitted to the receiving bank orally, electronically, or in writing. If a security procedure is in effect between the sender and the receiving bank, the communication is not effective to cancel or amend the order unless the communication is verified pursuant to the security procedure or the bank agrees to the cancellation or amendment.
(b) Subject to subsection (a), a communication by the sender canceling or amending a payment order is effective to cancel or amend the order if notice of the communication is received at a time and in a manner affording the receiving bank a reasonable opportunity to act on the communication before the bank accepts the payment order.
(c) After a payment order has been accepted, cancellation or amendment of the order is not effective unless the receiving bank agrees or a funds-transfer system rule allows cancellation or amendment without agreement of the bank.
(1) With respect to a payment order accepted by a receiving bank other than the beneficiary's bank, cancellation or amendment is not effective unless a conforming cancellation or amendment of the payment order issued by the receiving bank is also made.
(2) With respect to a payment order accepted by the beneficiary's bank, cancellation or amendment is not effective unless the order was issued in execution of an unauthorized payment order, or because of a mistake by a sender in the funds transfer which resulted in the issuance of a payment order (i) that is a duplicate of a payment order previously issued by the sender, (ii) that orders payment to a beneficiary not entitled to receive payment from the originator, or (iii) that orders payment in an amount greater than the amount the beneficiary was entitled to receive from the originator. If the payment order is canceled or amended, the beneficiary's bank is entitled to recover from the beneficiary any amount paid to the beneficiary to the extent allowed by the law governing mistake and restitution.
(d) An unaccepted payment order is canceled by operation of law at the close of the fifth funds-transfer business day of the receiving bank after the execution date or payment date of the order.
(e) A canceled payment order cannot be accepted. If an accepted payment order is canceled, the acceptance is nullified and no person has any right or obligation based on the acceptance. Amendment of a payment order is deemed to be cancellation of the original order at the time of amendment and issue of a new payment order in the amended form at the same time.
(f) Unless otherwise provided in an agreement of the parties or in a funds-transfer system rule, if the receiving bank, after accepting a payment order, agrees to cancellation or amendment of the order by the sender or is bound by a funds-transfer system rule allowing cancellation or amendment without the bank's agreement, the sender, whether or not cancellation or amendment is effective, is liable to the bank for any loss and expenses, including reasonable attorney's fees, incurred by the bank as a result of the cancellation or amendment or attempted cancellation or amendment.
(g) A payment order is not revoked by the death or legal incapacity of the sender unless the receiving bank knows of the death or of an adjudication of incapacity by a court of competent jurisdiction and has reasonable opportunity to act before acceptance of the order.
(h) A funds-transfer system rule is not effective to the extent it conflicts with subsection (c)(2).
1. This section deals with cancellation and amendment of payment orders. It states the conditions under which cancellation or amendment is both effective and rightful. There is no concept of wrongful cancellation or amendment of a payment order. If the conditions stated in this section are not met the attempted cancellation or amendment is not effective. If the stated conditions are met the cancellation or amendment is effective and rightful. The sender of a payment order may want to withdraw or change the order because the sender has had a change of mind about the transaction or because the payment order was erroneously issued or for any other reason. One common situation is that of multiple transmission of the same order. The sender that mistakenly transmits the same order twice wants to correct the mistake by canceling the duplicate order. Or, a sender may have intended to order a payment of $1,000,000 but mistakenly issued an order to pay $10,000,000. In this case the sender might try to correct the mistake by canceling the order and issuing another order in the proper amount. Or, the mistake could be corrected by amending the order to change it to the proper amount. Whether the error is corrected by amendment or cancellation and reissue the net result is the same. This result is stated in the last sentence of subsection (e).
2. Subsection (a) allows a cancellation or amendment of a payment order to be communicated to the receiving bank "orally, electronically, or in writing." The quoted phrase is consistent with the language of Section 4A-103(a) applicable to payment orders. Cancellations and amendments are normally subject to verification pursuant to security procedures to the same extent as payment orders. Subsection (a) recognizes this fact by providing that in cases in which there is a security procedure in effect between the sender and the receiving bank the bank is not bound by a communication canceling or amending an order unless verification has been made. This is necessary to protect the bank because under subsection (b) a cancellation or amendment can be effective by unilateral action of the sender. Without verification the bank cannot be sure whether the communication was or was not effective to cancel or amend a previously verified payment order.
3. If the receiving bank has not yet accepted the order, there is no reason why the sender should not be able to cancel or amend the order unilaterally so long as the requirements of subsections (a) and (b) are met. If the receiving bank has accepted the order, it is possible to cancel or amend but only if the requirements of subsection (c) are met.
First consider the case of a receiving bank other than the beneficiary's bank. If the bank has not yet accepted the order, the sender can unilaterally cancel or amend. The communication amending or canceling the payment order must be received in time to allow the bank to act on it before the bank issues its payment order in execution of the sender's order. The time that the sender's communication is received is governed by Section 4A-106. If a payment order does not specify a delayed payment date or execution date, the order will normally be executed shortly after receipt. Thus, as a practical matter, the sender will have very little time in which to instruct cancellation or amendment before acceptance. In addition, a receiving bank will normally have cut-off times for receipt of such communications, and the receiving bank is not obliged to act on communications received after the cut-off hour. Cancellation by the sender after execution of the order by the receiving bank requires the agreement of the bank unless a funds transfer rule otherwise provides. Subsection (c). Although execution of the sender's order by the receiving bank does not itself impose liability on the receiving bank (under Section 4A-402 no liability is incurred by the receiving bank to pay its order until it is accepted), it would commonly be the case that acceptance follows shortly after issuance. Thus, as a practical matter, a receiving bank that has executed a payment order will incur a liability to the next bank in the chain before it would be able to act on the cancellation request of its customer. It is unreasonable to impose on the receiving bank a risk of loss with respect to a cancellation request without the consent of the receiving bank.
The statute does not state how or when the agreement of the receiving bank must be obtained for cancellation after execution. The receiving bank's consent could be obtained at the time cancellation occurs or it could be based on a preexisting agreement. Or, a funds transfer system rule could provide that cancellation can be made unilaterally by the sender. By virtue of that rule any receiving bank covered by the rule is bound. Section 4A-501. If the receiving bank has already executed the sender's order, the bank would not consent to cancellation unless the bank to which the receiving bank has issued its payment order consents to cancellation of that order. It makes no sense to allow cancellation of a payment order unless all subsequent payment orders in the funds transfer that were issued because of the cancelled payment order are also cancelled. Under subsection (c)(1), if a receiving bank consents to cancellation of the payment order after it is executed, the cancellation is not effective unless the receiving bank also cancels the payment order issued by the bank.
4. With respect to a payment order issued to the beneficiary's bank, acceptance is particularly important because it creates liability to pay the beneficiary, it defines when the originator pays its obligation to the beneficiary, and it defines when any obligation for which the payment is made is discharged. Since acceptance affects the rights of the originator and the beneficiary it is not appropriate to allow the beneficiary's bank to agree to cancellation or amendment except in unusual cases. Except as provided in subsection (c)(2), cancellation or amendment after acceptance by the beneficiary's bank is not possible unless all parties affected by the order agree. Under subsection (c)(2), cancellation or amendment is possible only in the four cases stated. The following examples illustrate subsection (c)(2):
Case #1. Originator's Bank executed a payment order issued in the name of its customer as sender. The order was not authorized by the customer and was fraudulently issued. Beneficiary's Bank accepted the payment order issued by Originator's Bank. Under subsection (c)(2) Originator's Bank can cancel the order if Beneficiary's Bank consents. It doesn't make any difference whether the payment order that Originator's Bank accepted was or was not enforceable against the customer under Section 4A-202(b). Verification under that provision is important in determining whether Originator's Bank or the customer has the risk of loss, but it has no relevance under Section 4A-211(c)(2). Whether or not verified, the payment order was not authorized by the customer. Cancellation of the payment order to Beneficiary's Bank causes the acceptance of Beneficiary's Bank to be nullified. Subsection (e). Beneficiary's Bank is entitled to recover payment from the beneficiary to the extent allowed by the law of mistake and restitution. In this kind of case the beneficiary is usually a party to the fraud who has no right to receive or retain payment of the order.
Case #2. Originator owed Beneficiary $1,000,000 and ordered Bank A to pay that amount to the account of Beneficiary in Bank B. Bank A issued a complying order to Bank B, but by mistake issued a duplicate order as well. Bank B accepted both orders. Under subsection (c)(2)(i) cancellation of the duplicate order could be made by Bank A with the consent of Bank B. Beneficiary has no right to receive or retain payment of the duplicate payment order if only $1,000,000 was owed by Originator to Beneficiary. If Originator owed $2,000,000 to Beneficiary, the law of restitution might allow Beneficiary to retain the $1,000,000 paid by Bank B on the duplicate order. In that case Bank B is entitled to reimbursement from Bank A under subsection (f).
Case #3. Originator owed $1,000,000 to X. Intending to pay X, Originator ordered Bank A to pay $1,000,000 to Y's account in Bank B. Bank A issued a complying payment order to Bank B which Bank B accepted by releasing the $1,000,000 to Y. Under subsection (c)(2)(ii) Bank A can cancel its payment order to Bank B with the consent of Bank B if Y was not entitled to receive payment from Originator. Originator can also cancel its order to Bank A with Bank A's consent. Subsection (c) (1). Bank B may recover the $1,000,000 from Y unless the law of mistake and restitution allows Y to retain some or all of the amount paid. If no debt was owed to Y, Bank B should have a right of recovery.
Case #4. Originator owed Beneficiary $10,000. By mistake Originator ordered Bank A to pay $1,000,000 to the account of Beneficiary in Bank B. Bank A issued a complying order to Bank B which accepted by notifying Beneficiary of its right to withdraw $1,000,000. Cancellation is permitted in this case under subsection (c)(2)(iii). If Bank B paid Beneficiary it is entitled to recover the payment except to the extent the law of mistake and restitution allows Beneficiary to retain payment. In this case Beneficiary might be entitled to retain $10,000, the amount of the debt owed to Beneficiary. If Beneficiary may retain $10,000, Bank B would be entitled to $10,000 from Bank A pursuant to subsection (f). In this case Originator also cancelled its order. Thus Bank A would be entitled to $10,000 from Originator pursuant to subsection (f).
5. Unless constrained by a funds transfer system rule, a receiving bank may agree to cancellation or amendment of the payment order under subsection (c) but is not required to do so regardless of the circumstances. If the receiving bank has incurred liability as a result of its acceptance of the sender's order, there are substantial risks in agreeing to cancellation or amendment. This is particularly true for a beneficiary's bank. Cancellation or amendment after acceptance by the beneficiary's bank can be made only in the four cases stated and the beneficiary's bank may not have any way of knowing whether the requirements of subsection (c) have been met or whether it will be able to recover payment from the beneficiary that received payment. Even with indemnity the beneficiary's bank may be reluctant to alienate its customer, the beneficiary, by denying the customer the funds. Subsection (c) leaves the decision to the beneficiary's bank unless the consent of the beneficiary's bank is not required under a funds transfer system rule or other interbank agreement. If a receiving bank agrees to cancellation or amendment under subsection (c)(1) or (2), it is automatically entitled to indemnification from the sender under subsection (f). The indemnification provision recognizes that a sender has no right to cancel a payment order after it is accepted by the receiving bank. If the receiving bank agrees to cancellation, it is doing so as an accommodation to the sender and it should not incur a risk of loss in doing so.
6. Acceptance by the receiving bank of a payment order issued by the sender is comparable to acceptance of an offer under the law of contracts. Under that law the death or legal incapacity of an offeror terminates the offer even though the offeree has no notice of the death or incapacity. Restatement Second, Contracts Section 48. Comment a. to that section states that the "rule seems to be a relic of the obsolete view that a contract requires a 'meeting of minds,' and it is out of harmony with the modern doctrine that a manifestation of assent is effective without regard to actual mental assent." Subsection (g), which reverses the Restatement rule in the case of a payment order, is similar to Section 4-405(1) which applies to checks. Subsection (g) does not address the effect of the bankruptcy of the sender of a payment order before the order is accepted, but the principle of subsection (g) has been recognized in Bank of Marin v. England, 385 U.S. 99 (1966). Although Bankruptcy Code Section 542(c) may not have been drafted with wire transfers in mind, its language can be read to allow the receiving bank to charge the sender's account for the amount of the payment order if the receiving bank executed it in ignorance of the bankruptcy.
7. Subsection (d) deals with stale payment orders. Payment orders normally are executed on the execution date or the day after. An order issued to the beneficiary's bank is normally accepted on the payment date or the day after. If a payment order is not accepted on its execution or payment date or shortly thereafter, it is probable that there was some problem with the terms of the order or the sender did not have sufficient funds or credit to cover the amount of the order. Delayed acceptance of such an order is normally not contemplated, but the order may not have been cancelled by the sender. Subsection (d) provides for cancellation by operation of law to prevent an unexpected delayed acceptance.
8. A funds transfer system rule can govern rights and obligations between banks that are parties to payment orders transmitted over the system even if the rule conflicts with Article 4A. In some cases, however, a rule governing a transaction between two banks can affect a third party in an unacceptable way. Subsection (h) deals with such a case. A funds transfer system rule cannot allow cancellation of a payment order accepted by the beneficiary's bank if the rule conflicts with subsection (c)(2). Because rights of the beneficiary and the originator are directly affected by acceptance, subsection (c)(2) severely limits cancellation. These limitations cannot be altered by funds transfer system rule.
Section 36-4A-212. Liability and duty of receiving bank regarding unaccepted payment order.
If a receiving bank fails to accept a payment order that it is obliged by express agreement to accept, the bank is liable for breach of the agreement to the extent provided in the agreement or in this chapter, but does not otherwise have any duty to accept a payment order or, before acceptance, to take any action, or refrain from taking action, with respect to the order except as provided in this chapter or by express agreement. Liability based on acceptance arises only when acceptance occurs as stated in Section 36-4A-209, and liability is limited to that provided in this chapter. A receiving bank is not the agent of the sender or beneficiary of the payment order it accepts, or of any other party to the funds transfer, and the bank owes no duty to any party to the funds transfer except as provided in this chapter or by express agreement.
With limited exceptions stated in this Article, the duties and obligations of receiving banks that carry out a funds transfer arise only as a result of acceptance of payment orders or of agreements made by receiving banks. Exceptions are stated in Section 4A-209(b)(3) and Section 4A-210(b). A receiving bank is not like a collecting bank under Article 4. No receiving bank, whether it be an originator's bank, an intermediary bank, or a beneficiary's bank, is an agent for any other party in the funds transfer.
Section 36-4A-301. Execution and execution date.
(a) A payment order is 'executed' by the receiving bank when it issues a payment order intended to carry out the payment order received by the bank. A payment order received by the beneficiary's bank can be accepted but cannot be executed.
(b) 'Execution date' of a payment order means the day on which the receiving bank may properly issue a payment order in execution of the sender's order. The execution date may be determined by instruction of the sender but cannot be earlier than the day the order is received and, unless otherwise determined, is the day the order is received. If the sender's instruction states a payment date, the execution date is the payment date or an earlier date on which execution is reasonably necessary to allow payment to the beneficiary on the payment date.
1. The terms "executed," "execution" and "execution date" are used only with respect to a payment order to a receiving bank other than the beneficiary's bank. The beneficiary's bank can accept the payment order that it receives, but it does not execute the order. Execution refers to the act of the receiving bank in issuing a payment order "intended to carry out" the payment order that the bank received. A receiving bank has executed an order even if the order issued by the bank does not carry out the order received by the bank. For example, the bank may have erroneously issued an order to the wrong beneficiary, or in the wrong amount or to the wrong beneficiary's bank. In each of these cases execution has occurred but the execution is erroneous. Erroneous execution is covered in Section 4A-303.
2. "Execution date" refers to the time a payment order should be executed rather than the day it is actually executed. Normally the sender will not specify an execution date, but most payment orders are meant to be executed immediately. Thus, the execution date is normally the day the order is received by the receiving bank. It is common for the sender to specify a "payment date" which is defined in Section 4A-401 as "the day on which the amount of the order is payable to the beneficiary by the beneficiary's bank." Except for automated clearing house transfers, if a funds transfer is entirely within the United States and the payment is to be carried out electronically, the execution date is the payment date unless the order is received after the payment date. If the payment is to be carried out through an automated clearing house, execution may occur before the payment date. In an ACH transfer the beneficiary is usually paid one or two days after issue of the originator's payment order. The execution date is determined by the stated payment date and is a date before the payment date on which execution is reasonably necessary to allow payment on the payment date. A funds transfer system rule could also determine the execution date of orders received by the receiving bank if both the sender and the receiving bank are participants in the funds transfer system. The execution date can be determined by the payment order itself or by separate instructions of the sender or an agreement of the sender and the receiving bank. The second sentence of subsection (b) must be read in the light of Section 4A-106 which states that if a payment order is received after the cut-off time of the receiving bank it may be treated by the bank as received at the opening of the next funds transfer business day.
3. Execution on the execution date is timely, but the order can be executed before or after the execution date. Section 4A-209(d) and Section 4A-402(c) state the consequences of early execution and Section 4A-305(a) states the consequences of late execution.
Section 36-4A-302. Obligations of receiving bank in execution of payment order.
(a) Except as provided in subsections (b) through (d), if the receiving bank accepts a payment order pursuant to Section 36-4A-209(a), the bank has the following obligations in executing the order:
(1) The receiving bank is obliged to issue, on the execution date, a payment order complying with the sender's order and to follow the sender's instructions concerning (i) any intermediary bank or funds-transfer system to be used in carrying out the funds transfer, or (ii) the means by which payment orders are to be transmitted in the funds transfer. If the originator's bank issues a payment order to an intermediary bank, the originator's bank is obliged to instruct the intermediary bank according to the instruction of the originator. An intermediary bank in the funds transfer is similarly bound by an instruction given to it by the sender of the payment order it accepts.
(2) If the sender's instruction states that the funds transfer is to be carried out telephonically or by wire transfer or otherwise indicates that the funds transfer is to be carried out by the most expeditious means, the receiving bank is obliged to transmit its payment order by the most expeditious available means, and to instruct any intermediary bank accordingly. If a sender's instruction states a payment date, the receiving bank is obliged to transmit its payment order at a time and by means reasonably necessary to allow payment to the beneficiary on the payment date or as soon thereafter as is feasible.
(b) Unless otherwise instructed, a receiving bank executing a payment order may (i) use any funds-transfer system if use of that system is reasonable in the circumstances, and (ii) issue a payment order to the beneficiary's bank or to an intermediary bank through which a payment order conforming to the sender's order can expeditiously be issued to the beneficiary's bank if the receiving bank exercises ordinary care in the selection of the intermediary bank. A receiving bank is not required to follow an instruction of the sender designating a funds-transfer system to be used in carrying out the funds transfer if the receiving bank, in good faith, determines that it is not feasible to follow the instruction or that following the instruction would unduly delay completion of the funds transfer.
(c) Unless subsection (a)(2) applies or the receiving bank is otherwise instructed, the bank may execute a payment order by transmitting its payment order by first-class mail or by any means reasonable in the circumstances. If the receiving bank is instructed to execute the sender's order by transmitting its payment order by a particular means, the receiving bank may issue its payment order by the means stated or by any means as expeditious as the means stated.
(d) Unless instructed by the sender, (i) the receiving bank may not obtain payment of its charges for services and expenses in connection with the execution of the sender's order by issuing a payment order in an amount equal to the amount of the sender's order less the amount of the charges, and (ii) may not instruct a subsequent receiving bank to obtain payment of its charges in the same manner.
1. In the absence of agreement, the receiving bank is not obliged to execute an order of the sender. Section 4A-212. Section 4A-302 states the manner in which the receiving bank may execute the sender's order if execution occurs. Subsection (a)(1) states the residual rule. The payment order issued by the receiving bank must comply with the sender's order and, unless some other rule is stated in the section, the receiving bank is obliged to follow any instruction of the sender concerning which funds transfer system is to be used, which intermediary banks are to be used, and what means of transmission is to be used. The instruction of the sender may be incorporated in the payment order itself or may be given separately. For example, there may be a master agreement between the sender and receiving bank containing instructions governing payment orders to be issued from time to time by the sender to the receiving bank. In most funds transfers, speed is a paramount consideration. A sender that wants assurance that the funds transfer will be expeditiously completed can specify the means to be used. The receiving bank can follow the instructions literally or it can use an equivalent means. For example, if the sender instructs the receiving bank to transmit by telex, the receiving bank could use telephone instead. Subsection (c). In most cases the sender will not specify a particular means but will use a general term such as "by wire" or "wire transfer" or "as soon as possible." These words signify that the sender wants a same-day transfer. In these cases the receiving bank is required to use a telephonic or electronic communication to transmit its order and is also required to instruct any intermediary bank to which it issues its order to transmit by similar means. Subsection (a)(2). In other cases, such as an automated clearing house transfer, a same-day transfer is not contemplated. Normally the sender's instruction or the context in which the payment order is received makes clear the type of funds transfer that is appropriate. If the sender states a payment date with respect to the payment order, the receiving bank is obliged to execute the order at a time and in a manner to meet the payment date if that is feasible. Subsection (a)(2). This provision would apply to many ACH transfers made to pay recurring debts of the sender. In other cases, involving relatively small amounts, time may not be an important factor and cost may be a more important element. Fast means, such as telephone or electronic transmission, are more expensive than slow means such as mailing. Subsection (c) states that in the absence of instructions the receiving bank is given discretion to decide. It may issue its payment order by first-class mail or by any means reasonable in the circumstances. Section 4A-305 states the liability of a receiving bank for breach of the obligations stated in Section 4A-302.
2. Subsection (b) concerns the choice of intermediary banks to be used in completing the funds transfer, and the funds transfer system to be used. If the receiving bank is not instructed about the matter, it can issue an order directly to the beneficiary's bank or can issue an order to an intermediary bank. The receiving bank also has discretion concerning use of a funds transfer system. In some cases it may be reasonable to use either an automated clearing house system or a wire transfer system such as Fedwire or CHIPS. Normally, the receiving bank will follow the instruction of the sender in these matters, but in some cases it may be prudent for the bank not to follow instructions. The sender may have designated a funds transfer system to be used in carrying out the funds transfer, but it may not be feasible to use the designated system because of some impediment such as a computer breakdown which prevents prompt execution of the order. The receiving bank is permitted to use an alternate means of transmittal in a good faith effort to execute the order expeditiously. The same leeway is not given to the receiving bank if the sender designates an intermediary bank through which the funds transfer is to be routed. The sender's designation of that intermediary bank may mean that the beneficiary's bank is expecting to obtain a credit from that intermediary bank and may have relied on that anticipated credit. If the receiving bank uses another intermediary bank the expectations of the beneficiary's bank may not be realized. The receiving bank could choose to route the transfer to another intermediary bank and then to the designated intermediary bank if there were some reason such as a lack of a correspondent-bank relationship or a bilateral credit limitation, but the designated intermediary bank cannot be circumvented. To do so violates the sender's instructions.
3. The normal rule, under subsection (a)(1), is that the receiving bank, in executing a payment order, is required to issue a payment order that complies as to amount with that of the sender's order. In most cases the receiving bank issues an order equal to the amount of the sender's order and makes a separate charge for services and expenses in executing the sender's order. In some cases, particularly if it is an intermediary bank that is executing an order, charges are collected by deducting them from the amount of the payment order issued by the executing bank. If that is done, the amount of the payment order accepted by the beneficiary's bank will be slightly less than the amount of the originator's payment order. For example, Originator, in order to pay an obligation of $1,000,000 owed to Beneficiary, issues a payment order to Originator's Bank to pay $1,000,000 to the account of Beneficiary in Beneficiary's Bank. Originator's Bank issues a payment order to Intermediary Bank for $1,000,000 and debits Originator's account for $1,000,010. The extra $10 is the fee of Originator's Bank. Intermediary Bank executes the payment order of Originator's Bank by issuing a payment order to Beneficiary's Bank for $999,990, but under Section 4A-402(c) is entitled to receive $1,000,000 from Originator's Bank. The $10 difference is the fee of Intermediary Bank. Beneficiary's Bank credits Beneficiary's account for $999,990. When Beneficiary's Bank accepts the payment order of Intermediary Bank the result is a payment of $999,990 from Originator to Beneficiary. Section 4A-406(a). If that payment discharges the $1,000,000 debt, the effect is that Beneficiary has paid the charges of Intermediary Bank and Originator has paid the charges of Originator's Bank. Subsection (d) of Section 4A-302 allows Intermediary Bank to collect its charges by deducting them from the amount of the payment order, but only if instructed to do so by Originator's Bank. Originator's Bank is not authorized to give that instruction to Intermediary Bank unless Originator authorized the instruction. Thus, Originator can control how the charges of Originator's Bank and Intermediary Bank are to be paid. Subsection (d) does not apply to charges of Beneficiary's Bank to Beneficiary.
In the case discussed in the preceding paragraph the $10 charge is trivial in relation to the amount of the payment and it may not be important to Beneficiary how the charge is paid. But it may be very important if the $1,000,000 obligation represented the price of exercising a right such as an option favorable to Originator and unfavorable to Beneficiary. Beneficiary might well argue that it was entitled to receive $1,000,000. If the option was exercised shortly before its expiration date, the result could be loss of the option benefit because the required payment of $1,000,000 was not made before the option expired. Section 4A-406(c) allows Originator to preserve the option benefit. The amount received by Beneficiary is deemed to be $1,000,000 unless Beneficiary demands the $10 and Originator does not pay it.
Section 36-4A-303. Erroneous execution of payment order.
(a) A receiving bank that (i) executes the payment order of the sender by issuing a payment order in an amount greater than the amount of the sender's order, or (ii) issues a payment order in execution of the sender's order and then issues a duplicate order, is entitled to payment of the amount of the sender's order under Section 36-4A-402(c) if that subsection is otherwise satisfied. The bank is entitled to recover from the beneficiary of the erroneous order the excess payment received to the extent allowed by the law governing mistake and restitution.
(b) A receiving bank that executes the payment order of the sender by issuing a payment order in an amount less than the amount of the sender's order is entitled to payment of the amount of the sender's order under Section 36-4A-402(c) if (i) that subsection is otherwise satisfied and (ii) the bank corrects its mistake by issuing an additional payment order for the benefit of the beneficiary of the sender's order. If the error is not corrected, the issuer of the erroneous order is entitled to receive or retain payment from the sender of the order it accepted only to the extent of the amount of the erroneous order. This subsection does not apply if the receiving bank executes the sender's payment order by issuing a payment order in an amount less than the amount of the sender's order for the purpose of obtaining payment of its charges for services and expenses pursuant to instruction of the sender.
(c) If a receiving bank executes the payment order of the sender by issuing a payment order to a beneficiary different from the beneficiary of the sender's order and the funds transfer is completed on the basis of that error, the sender of the payment order that was erroneously executed and all previous senders in the funds transfer are not obliged to pay the payment orders they issued. The issuer of the erroneous order is entitled to recover from the beneficiary of the order the payment received to the extent allowed by the law governing mistake and restitution.
1. Section 4A-303 states the effect of erroneous execution of a payment order by the receiving bank. Under Section 4A-402(c) the sender of a payment order is obliged to pay the amount of the order to the receiving bank if the bank executes the order, but the obligation to pay is excused if the beneficiary's bank does not accept a payment order instructing payment to the beneficiary of the sender's order. If erroneous execution of the sender's order causes the wrong beneficiary to be paid, the sender is not required to pay. If erroneous execution causes the wrong amount to be paid the sender is not obliged to pay the receiving bank an amount in excess of the amount of the sender's order. Section 4A-303 takes precedence over Section 4A-402(c) and states the liability of the sender and the rights of the receiving bank in various cases of erroneous execution.
2. Subsections (a) and (b) deal with cases in which the receiving bank executes by issuing a payment order in the wrong amount. If Originator ordered Originator's Bank to pay $1,000,000 to the account of Beneficiary in Beneficiary's Bank, but Originator's Bank erroneously instructed Beneficiary's Bank to pay $2,000,000 to Beneficiary's account, subsection (a) applies. If Beneficiary's Bank accepts the order of Originator's Bank, Beneficiary's Bank is entitled to receive $2,000,000 from Originator's Bank, but Originator's Bank is entitled to receive only $1,000,000 from Originator. Originator's Bank is entitled to recover the overpayment from Beneficiary to the extent allowed by the law governing mistake and restitution. Originator's Bank would normally have a right to recover the overpayment from Beneficiary, but in unusual cases the law of restitution might allow Beneficiary to keep all or part of the overpayment. For example, if Originator owed $2,000,000 to Beneficiary and Beneficiary received the extra $1,000,000 in good faith in discharge of the debt, Beneficiary may be allowed to keep it. In this case Originator's Bank has paid an obligation of Originator and under the law of restitution, which applies through Section 1-103, Originator's Bank would be subrogated to Beneficiary's rights against Originator on the obligation paid by Originator's Bank.
If Originator's Bank erroneously executed Originator's order by instructing Beneficiary's Bank to pay less than $1,000,000, subsection (b) applies. If Originator's Bank corrects its error by issuing another payment order to Beneficiary's Bank that results in payment of $1,000,000 to Beneficiary, Originator's Bank is entitled to payment of $1,000,000 from Originator. If the mistake is not corrected, Originator's Bank is entitled to payment from Originator only in the amount of the order issued by Originator's Bank.
3. Subsection (a) also applies to duplicate payment orders. Assume Originator's Bank properly executes Originator's $1,000,000 payment order and then by mistake issues a second $1,000,000 payment order in execution of Originator's order. If Beneficiary's Bank accepts both orders issued by Originator's Bank, Beneficiary's Bank is entitled to receive $2,000,000 from Originator's Bank but Originator's Bank is entitled to receive only $1,000,000 from Originator. The remedy of Originator's Bank is the same as that of a receiving bank that executes by issuing an order in an amount greater than the sender's order. It may recover the overpayment from Beneficiary to the extent allowed by the law governing mistake and restitution and in a proper case as stated in Comment 2 may have subrogation rights if it is not entitled to recover from Beneficiary.
4. Suppose Originator instructs Originator's Bank to pay $1,000,000 to Account #12345 in Beneficiary's Bank. Originator's Bank erroneously instructs Beneficiary's Bank to pay $1,0000,000 to Account #12346 and Beneficiary's Bank accepted. Subsection (c) covers this case. Originator is not obliged to pay its payment order, but Originator's Bank is required to pay $1,000,000 to Beneficiary's Bank. The remedy of Originator's Bank is to recover $1,000,000 from the holder of Account #12346 that received payment by mistake. Recovery based on the law of mistake and restitution is described in Comment 2.
Section 36-4A-304. Duty of sender to report erroneously executed payment order.
If the sender of a payment order that is erroneously executed as stated in Section 36-4A-303 receives notification from the receiving bank that the order was executed or that the sender's account was debited with respect to the order, the sender has a duty to exercise ordinary care to determine, on the basis of information available to the sender, that the order was erroneously executed and to notify the bank of the relevant facts within a reasonable time not exceeding ninety days after the notification from the bank was received by the sender. If the sender fails to perform that duty, the bank is not obliged to pay interest on any amount refundable to the sender under Section 36-4A-402(d) for the period before the bank learns of the execution error. The bank is not entitled to any recovery from the sender on account of a failure by the sender to perform the duty stated in this section.
This section is identical in effect to Section 4A-204 which applies to unauthorized orders issued in the name of a customer of the receiving bank. The rationale is stated in Comment 2 to Section 4A-204.
Section 36-4A-305. Liability for late or improper execution or failure to execute payment order.
(a) If a funds transfer is completed but execution of a payment order by the receiving bank in breach of Section 36-4A-302 results in delay in payment to the beneficiary, the bank is obliged to pay interest to either the originator or the beneficiary of the funds transfer for the period of delay caused by the improper execution. Except as provided in subsection (c), additional damages are not recoverable.
(b) If execution of a payment order by a receiving bank in breach of Section 36-4A-302 results in (i) noncompletion of the funds transfer, (ii) failure to use an intermediary bank designated by the originator, or (iii) issuance of a payment order that does not comply with the terms of the payment order of the originator, the bank is liable to the originator for its expenses in the funds transfer and for incidental expenses and interest losses, to the extent not covered by subsection (a), resulting from the improper execution. Except as provided in subsection (c), additional damages are not recoverable.
(c) In addition to the amounts payable under subsections (a) and (b), damages, including consequential damages, are recoverable to the extent provided in an express written agreement of the receiving bank.
(d) If a receiving bank fails to execute a payment order it was obliged by express agreement to execute, the receiving bank is liable to the sender for its expenses in the transaction and for incidental expenses and interest losses resulting from the failure to execute. Additional damages, including consequential damages, are recoverable to the extent provided in an express written agreement of the receiving bank, but are not otherwise recoverable.
(e) Reasonable attorney's fees are recoverable if demand for compensation under subsection (a) or (b) is made and refused before an action is brought on the claim. If a claim is made for breach of an agreement under subsection (d) and the agreement does not provide for damages, reasonable attorney's fees are recoverable if demand for compensation under subsection (d) is made and refused before an action is brought on the claim.
(f) Except as stated in this section, the liability of a receiving bank under subsections (a) and (b) may not be varied by agreement.
1. Subsection (a) covers cases of delay in completion of a funds transfer resulting from an execution by a receiving bank in breach of Section 4A-302(a). The receiving bank is obliged to pay interest on the amount of the order for the period of the delay. The rate of interest is stated in Section 4A-506. With respect to wire transfers (other than ACH transactions) within the United States, the expectation is that the funds transfer will be completed the same day. In those cases, the originator can reasonably expect that the originator's account will be debited on the same day as the beneficiary's account is credited. If the funds transfer is delayed, compensation can be paid either to the originator or to the beneficiary. The normal practice is to compensate the beneficiary's bank to allow that bank to compensate the beneficiary by back-valuing the payment by the number of days of delay. Thus, the beneficiary is in the same position that it would have been in if the funds transfer had been completed on the same day. Assume on Day 1, Originator's Bank issues its payment order to Intermediary Bank which is received on that day. Intermediary Bank does not execute that order until Day 2 when it issues an order to Beneficiary's Bank which is accepted on that day. Intermediary Bank complies with subsection (a) by paying one day's interest to Beneficiary's Bank for the account of Beneficiary.
2. Subsection (b) applies to cases of breach of Section 4A-302 involving more than mere delay. In those cases the bank is liable for damages for improper execution but they are limited to compensation for interest losses and incidental expenses of the sender resulting from the breach, the expenses of the sender in the funds transfer and attorney's fees. This subsection reflects the judgment that imposition of consequential damages on a bank for commission of an error is not justified.
The leading common law case on the subject of consequential damages is Evra Corp. v. Swiss Bank Corp., 673 F.2d 951 (7th Cir. 1982), in which Swiss Bank, an intermediary bank, failed to execute a payment order. Because the beneficiary did not receive timely payment the originator lost a valuable ship charter. The lower court awarded the originator $2.1 million for lost profits even though the amount of the payment order was only $27,000. The Seventh Circuit reversed, in part on the basis of the common law rule of Hadley v. Baxendale that consequential damages may not be awarded unless the defendant is put on notice of the special circumstances giving rise to them. Swiss Bank may have known that the originator was paying the shipowner for the hire of a vessel but did not know that a favorable charter would be lost if the payment was delayed. "Electronic payments are not so unusual as to automatically place a bank on notice of extraordinary consequences if such a transfer goes awry. Swiss Bank did not have enough information to infer that if it lost a $27,000 payment order it would face liability in excess of $2 million." 673 F.2d at 956.
If Evra means that consequential damages can be imposed if the culpable bank has notice of particular circumstances giving rise to the damages, it does not provide an acceptable solution to the problem of bank liability for consequential damages. In the typical case transmission of the payment order is made electronically. Personnel of the receiving bank that process payment orders are not the appropriate people to evaluate the risk of liability for consequential damages in relation to the price charged for the wire transfer service. Even if notice is received by higher level management personnel who could make an appropriate decision whether the risk is justified by the price, liability based on notice would require evaluation of payment orders on an individual basis. This kind of evaluation is inconsistent with the high-speed, low-price, mechanical nature of the processing system that characterizes wire transfers. Moreover, in Evra the culpable bank was an intermediary bank with which the originator did not deal. Notice to the originator's bank would not bind the intermediary bank, and it seems impractical for the originator's bank to convey notice of this kind to intermediary banks in the funds transfer. The success of the wholesale wire transfer industry has largely been based on its ability to effect payment at low cost and great speed. Both of these essential aspects of the modern wire transfer system would be adversely affected by a rule that imposed on banks liability for consequential damages. A banking industry amicus brief in Evra stated: "Whether banks can continue to make EFT services available on a widespread basis, by charging reasonable rates, depends on whether they can do so without incurring unlimited consequential risks. Certainly, no bank would handle for $3.25 a transaction entailing potential liability in the millions of dollars."
As the court in Evra also noted, the originator of the funds transfer is in the best position to evaluate the risk that a funds transfer will not be made on time and to manage that risk by issuing a payment order in time to allow monitoring of the transaction. The originator, by asking the beneficiary, can quickly determine if the funds transfer has been completed. If the originator has sent the payment order at a time that allows a reasonable margin for correcting error, no loss is likely to result if the transaction is monitored. The other published cases on this issue reach the Evra result. Central Coordinates, Inc. v. Morgan Guaranty Trust Co., 40 U.C.C. Rep. Serv. 1340 (N.Y.Sup.Ct. 1985), and Gatoil (U.S.A.), Inc. v. Forest Hill State Bank, 1 U.C.C. Rep. Serv. 2d 171 (D.Md. 1986).
Subsection (c) allows the measure of damages in subsection (b) to be increased by an express written agreement of the receiving bank. An originator's bank might be willing to assume additional responsibilities and incur additional liability in exchange for a higher fee.
3. Subsection (d) governs cases in which a receiving bank has obligated itself by express agreement to accept payment orders of a sender. In the absence of such an agreement there is no obligation by a receiving bank to accept a payment order. Section 4A-212. The measure of damages for breach of an agreement to accept a payment order is the same as that stated in subsection (b). As in the case of subsection (b), additional damages, including consequential damages, may be recovered to the extent stated in an express written agreement of the receiving bank.
4. Reasonable attorney's fees are recoverable only in cases in which damages are limited to statutory damages stated in subsection (a), (b) and (d). If additional damages are recoverable because provided for by an express written agreement, attorney's fees are not recoverable. The rationale is that there is no need for statutory attorney's fees in the latter case, because the parties have agreed to a measure of damages which may or may not provide for attorney's fees.
5. The effect of subsection (f) is to prevent reduction of a receiving bank's liability under Section 4A-305.
No South Carolina case has applied the rule in Hadley v. Baxendale, relating to the availability of consequential damages in contract, to a funds transfer. Adoption of this section [Section 36-4A-305] modifies the potential common-law applicability of the rule in Hadley in the funds transfer context. For a discussion of this effect and the policies underlying Section 36-4A-305, see the Official Comment to this section.
Section 36-4A-401. Payment date.
'Payment date' of a payment order means the day on which the amount of the order is payable to the beneficiary by the beneficiary's bank. The payment date may be determined by instruction of the sender but cannot be earlier than the day the order is received by the beneficiary's bank and, unless otherwise determined, is the day the order is received by the beneficiary's bank.
"Payment date" refers to the day the beneficiary's bank is to pay the beneficiary. The payment date may be expressed in various ways so long as it indicates the day the beneficiary is to receive payment. For example, in ACH transfers the payment date is the equivalent of "settlement date" or "effective date." Payment date applies to the payment order issued to the beneficiary's bank, but a payment order issued to a receiving bank other than the beneficiary's bank may also state a date for payment to the beneficiary. In the latter case, the statement of a payment date is to instruct the receiving bank concerning time of execution of the sender's order. Section 4A-301(b).
Section 36-4A-402. Obligation of sender to pay receiving bank.
(a) This section is subject to Sections 36-4A-205 and 36-4A-207.
(b) With respect to a payment order issued to the beneficiary's bank, acceptance of the order by the bank obliges the sender to pay the bank the amount of the order, but payment is not due until the payment date of the order.
(c) This subsection is subject to subsection (e) and to Section 36-4A-303. With respect to a payment order issued to a receiving bank other than the beneficiary's bank, acceptance of the order by the receiving bank obliges the sender to pay the bank the amount of the sender's order. Payment by the sender is not due until the execution date of the sender's order. The obligation of that sender to pay its payment order is excused if the funds transfer is not completed by acceptance by the beneficiary's bank of a payment order instructing payment to the beneficiary of that sender's payment order.
(d) If the sender of a payment order pays the order and was not obliged to pay all or part of the amount paid, the bank receiving payment is obliged to refund payment to the extent the sender was not obliged to pay. Except as provided in Sections 36-4A-204 and 36-4A-304, interest is payable on the refundable amount from the date of payment.
(e) If a funds transfer is not completed as stated in subsection (c) and an intermediary bank is obliged to refund payment as stated in subsection (d) but is unable to do so because not permitted by applicable law or because the bank suspends payments, a sender in the funds transfer that executed a payment order in compliance with an instruction, as stated in Section 36-4A-302(a)(1), to route the funds transfer through that intermediary bank is entitled to receive or retain payment from the sender of the payment order that it accepted. The first sender in the funds transfer that issued an instruction requiring routing through that intermediary bank is subrogated to the right of the bank that paid the intermediary bank to refund as stated in subsection (d).
(f) The right of the sender of a payment order to be excused from the obligation to pay the order as stated in subsection (c) or to receive refund under subsection (d) may not be varied by agreement.
1. Subsection (b) states that the sender of a payment order to the beneficiary's bank must pay the order when the beneficiary's bank accepts the order. At that point the beneficiary's bank is obliged to pay the beneficiary. Section 4A-404(a). The last clause of subsection (b) covers a case of premature acceptance by the beneficiary's bank. In some funds transfers, notably automated clearing house transfers, a beneficiary's bank may receive a payment order with a payment date after the day the order is received. The beneficiary's bank might accept the order before the payment date by notifying the beneficiary of receipt of the order. Although the acceptance obliges the beneficiary's bank to pay the beneficiary, payment is not due until the payment date. The last clause of subsection (b) is consistent with that result. The beneficiary's bank is also not entitled to payment from the sender until the payment date.
2. Assume that Originator instructs Bank A to order immediate payment to the account of Beneficiary in Bank B. Execution of Originator's payment order by Bank A is acceptance under Section 4A-209(a). Under the second sentence of Section 4A-402(c) the acceptance creates an obligation of Originator to pay Bank A the amount of the order. The last clause of that sentence deals with attempted funds transfers that are not completed. In that event the obligation of the sender to pay its payment order is excused. Originator makes payment to Beneficiary when Bank B, the beneficiary's bank, accepts a payment order for the benefit of Beneficiary. Section 4A-406(a). If that acceptance by Bank B does not occur, the funds transfer has miscarried because Originator has not paid Beneficiary. Originator doesn't have to pay its payment order, and if it has already paid it is entitled to refund of the payment with interest. The rate of interest is stated in Section 4A-506. This "money-back guarantee" is an important protection of Originator. Originator is assured that it will not lose its money if something goes wrong in the transfer. For example, risk of loss resulting from payment to the wrong beneficiary is borne by some bank, not by Originator. The most likely reason for noncompletion is a failure to execute or an erroneous execution of a payment order by Bank A or an intermediary bank. Bank A may have issued its payment order to the wrong bank or it may have identified the wrong beneficiary in its order. The money-back guarantee is particularly important to Originator if noncompletion of the funds transfer is due to the fault of an intermediary bank rather than Bank A. In that case Bank A must refund payment to Originator, and Bank A has the burden of obtaining refund from the intermediary bank that it paid.
Subsection (c) can result in loss if an intermediary bank suspends payments. Suppose Originator instructs Bank A to pay to Beneficiary's account in Bank B and to use Bank C as an intermediary bank. Bank A executes Originator's order by issuing a payment order to Bank C. Bank A pays Bank C. Bank C fails to execute the order of Bank A and suspends payments. Under subsections (c) and (d), Originator is not obliged to pay Bank A and is entitled to refund from Bank A of any payment that it may have made. Bank A is entitled to a refund from Bank C, but Bank C is insolvent. Subsection (e) deals with this case. Bank A was required to issue its payment order to Bank C because Bank C was designated as an intermediary bank by Originator. Section 4A-302(a)(1). In this case Originator takes the risk of insolvency of Bank C. Under subsection (e), Bank A is entitled to payment from Originator and Originator is subrogated to the right of Bank A under subsection (d) to refund of payment from Bank C.
3. A payment order is not like a negotiable instrument on which the drawer or maker has liability. Acceptance of the order by the receiving bank creates an obligation of the sender to pay the receiving bank the amount of the order. That is the extent of the sender's liability to the receiving bank and no other person has any rights against the sender with respect to the sender's order.
Section 36-4A-403. Payment by sender to receiving bank.
(a) Payment of the sender's obligation under Section 36-4A-402 to pay the receiving bank occurs as follows:
(1) If the sender is a bank, payment occurs when the receiving bank receives final settlement of the obligation through a Federal Reserve Bank or through a funds-transfer system.
(2) If the sender is a bank and the sender (i) credited an account of the receiving bank with the sender, or (ii) caused an account of the receiving bank in another bank to be credited, payment occurs when the credit is withdrawn or, if not withdrawn, at midnight of the day on which the credit is withdrawable and the receiving bank learns of that fact.
(3) If the receiving bank debits an account of the sender with the receiving bank, payment occurs when the debit is made to the extent the debit is covered by a withdrawable credit balance in the account.
(b) If the sender and receiving bank are members of a funds-transfer system that nets obligations multilaterally among participants, the receiving bank receives final settlement when settlement is complete in accordance with the rules of the system. The obligation of the sender to pay the amount of a payment order transmitted through the funds-transfer system may be satisfied, to the extent permitted by the rules of the system, by setting off and applying against the sender's obligation the right of the sender to receive payment from the receiving bank of the amount of any other payment order transmitted to the sender by the receiving bank through the funds-transfer system. The aggregate balance of obligations owed by each sender to each receiving bank in the funds-transfer system may be satisfied, to the extent permitted by the rules of the system, by setting off and applying against that balance the aggregate balance of obligations owed to the sender by other members of the system. The aggregate balance is determined after the right of setoff stated in the second sentence of this subsection has been exercised.
(c) If two banks transmit payment orders to each other under an agreement that settlement of the obligations of each bank to the other under Section 36-4A-402 will be made at the end of the day or other period, the total amount owed with respect to all orders transmitted by one bank shall be set off against the total amount owed with respect to all orders transmitted by the other bank. To the extent of the setoff, each bank has made payment to the other.
(d) In a case not covered by subsection (a), the time when payment of the sender's obligation under Section 36-4A-402(b) or 36-4A-402(c) occurs is governed by applicable principles of law that determine when an obligation is satisfied.
1. This section defines when a sender pays the obligation stated in Section 4A-402. If a group of two or more banks engage in funds transfers with each other, the participating banks will sometimes be senders and sometimes receiving banks. With respect to payment orders other than Fedwires, the amounts of the various payment orders may be credited and debited to accounts of one bank with another or to a clearing house account of each bank and amounts owed and amounts due are netted. Settlement is made through a Federal Reserve Bank by charges to the Federal Reserve accounts of the net debtor banks and credits to the Federal Reserve accounts of the net creditor banks. In the case of Fedwires the sender's obligation is settled by a debit to the Federal Reserve account of the sender and a credit to the Federal Reserve account of the receiving bank at the time the receiving bank receives the payment order. Both of these cases are covered by subsection (a)(1). When the Federal Reserve settlement becomes final the obligation of the sender under Section 4A-402 is paid.
2. In some cases a bank does not settle an obligation owed to another bank through a Federal Reserve Bank. This is the case if one of the banks is a foreign bank without access to the Federal Reserve payment system. In this kind of case, payment is usually made by credits or debits to accounts of the two banks with each other or to accounts of the two banks in a third bank. Suppose Bank B has an account in Bank A. Bank A advises Bank B that its account in Bank A has been credited $1,000,000 and that the credit is immediately withdrawable. Bank A also instructs Bank B to pay $1,000,000 to the account of Beneficiary in Bank B. This case is covered by subsection (a)(2). Bank B may want to immediately withdraw this credit. For example, it might do so by instructing Bank A to debit the account and pay some third party. Payment by Bank A to Bank B of Bank A's payment order occurs when the withdrawal is made. Suppose Bank B does not withdraw the credit. Since Bank B is the beneficiary's bank, one of the effects of receipt of payment by Bank B is that acceptance of Bank A's payment order automatically occurs at the time of payment. Section 4A-209(b)(2). Acceptance means that Bank B is obliged to pay $1,000,000 to Beneficiary. Section 4A-404(a). Subsection (a)(2) of Section 4A-403 states that payment does not occur until midnight if the credit is not withdrawn. This allows Bank B an opportunity to reject the order if it does not have time to withdraw the credit to its account and it is not willing to incur the liability to Beneficiary before it has use of the funds represented by the credit.
3. Subsection (a)(3) applies to a case in which the sender (bank or nonbank) has a funded account in the receiving bank. If Sender has an account in Bank and issues a payment order to Bank, Bank can obtain payment from Sender by debiting the account of Sender, which pays its Section 4A-402 obligation to Bank when the debit is made.
4. Subsection (b) deals with multilateral settlements made through a funds transfer system and is based on the CHIPS settlement system. In a funds transfer system such as CHIPS, which allows the various banks that transmit payment orders over the system to settle obligations at the end of each day, settlement is not based on individual payment orders. Each bank using the system engages in funds transfers with many other banks using the system. Settlement for any participant is based on the net credit or debit position of that participant with all other banks using the system. Subsection (b) is designed to make clear that the obligations of any sender are paid when the net position of that sender is settled in accordance with the rules of the funds transfer system. This provision is intended to invalidate any argument, based on common-law principles, that multilateral netting is not valid because mutuality of obligation is not present. Subsection (b) dispenses with any mutuality of obligation requirements. Subsection (c) applies to cases in which two banks send payment orders to each other during the day and settle with each other at the end of the day or at the end of some other period. It is similar to subsection (b) in that it recognizes that a sender's obligation to pay a payment order is satisfied by a setoff. The obligations of each bank as sender to the other as receiving bank are obligations of the bank itself and not as representative of customers. These two sections are important in the case of insolvency of a bank. They make clear that liability under Section 4A-402 is based on the net position of the insolvent bank after setoff.
5. Subsection (d) relates to the uncommon case in which the sender doesn't have an account relationship with the receiving bank and doesn't settle through a Federal Reserve Bank. An example would be a customer that pays over the counter for a payment order that the customer issues to the receiving bank. Payment would normally be by cash, check or bank obligation. When payment occurs is determined by law outside Article 4A.
Section 36-4A-404. Obligation of beneficiary's bank to pay and give notice to beneficiary.
(a) Subject to Sections 36-4A-211(e), 36-4A-405(d), and 36-4A-405(e), if a beneficiary's bank accepts a payment order, the bank is obliged to pay the amount of the order to the beneficiary of the order. Payment is due on the payment date of the order, but if acceptance occurs on the payment date after the close of the funds-transfer business day of the bank, payment is due on the next funds-transfer business day. If the bank refuses to pay after demand by the beneficiary and receipt of notice of particular circumstances that will give rise to consequential damages as a result of nonpayment, the beneficiary may recover damages resulting from the refusal to pay to the extent the bank had notice of the damages, unless the bank proves that it did not pay because of a reasonable doubt concerning the right of the beneficiary to payment.
(b) If a payment order accepted by the beneficiary's bank instructs payment to an account of the beneficiary, the bank is obliged to notify the beneficiary of receipt of the order before midnight of the next funds-transfer business day following the payment date. If the payment order does not instruct payment to an account of the beneficiary, the bank is required to notify the beneficiary only if notice is required by the order. Notice may be given by first-class mail or any other means reasonable in the circumstances. If the bank fails to give the required notice, the bank is obliged to pay interest to the beneficiary on the amount of the payment order from the day notice should have been given until the day the beneficiary learned of receipt of the payment order by the bank. No other damages are recoverable. Reasonable attorney's fees are also recoverable if demand for interest is made and refused before an action is brought on the claim.
(c) The right of a beneficiary to receive payment and damages as stated in subsection (a) may not be varied by agreement or a funds-transfer system rule. The right of a beneficiary to be notified as stated in subsection (b) may be varied by agreement of the beneficiary or by a funds-transfer system rule if the beneficiary is notified of the rule before initiation of the funds transfer.
1. The first sentence of subsection (a) states the time when the obligation of the beneficiary's bank arises. The second and third sentences state when the beneficiary's bank must make funds available to the beneficiary. They also state the measure of damages for failure, after demand, to comply. Since the Expedited Funds Availability Act, 12 U.S.C. 4001 et seq., also governs funds availability in a funds transfer, the second and third sentences of subsection (a) may be subject to preemption by that Act.
2. Subsection (a) provides that the beneficiary of an accepted payment order may recover consequential damages if the beneficiary's bank refuses to pay the order after demand by the beneficiary if the bank at that time had notice of the particular circumstances giving rise to the damages. Such damages are recoverable only to the extent the bank had "notice of the damages." The quoted phrase requires that the bank have notice of the general type or nature of the damages that will be suffered as a result of the refusal to pay and their general magnitude. There is no requirement that the bank have notice of the exact or even the approximate amount of the damages, but if the amount of damages is extraordinary the bank is entitled to notice of that fact. For example, in Evra Corp. v. Swiss Bank Corp., 673 F.2d 951 (7th Cir. 1982), failure to complete a funds transfer of only $27,000 required to retain rights to a very favorable ship charter resulted in a claim for more than $2,000,000 of consequential damages. Since it is not reasonably foreseeable that a failure to make a relatively small payment will result in damages of this magnitude, notice is not sufficient if the beneficiary's bank has notice only that the $27,000 is necessary to retain rights on a ship charter. The bank is entitled to notice that an exceptional amount of damages will result as well. For example, there would be adequate notice if the bank had been made aware that damages of $1,000,000 or more might result.
3. Under the last clause of subsection (a) the beneficiary's bank is not liable for damages if its refusal to pay was "because of a reasonable doubt concerning the right of the beneficiary to payment." Normally there will not be any question about the right of the beneficiary to receive payment. Normally, the bank should be able to determine whether it has accepted the payment order and, if it has been accepted, the first sentence of subsection (a) states that the bank is obliged to pay. There may be uncommon cases, however, in which there is doubt whether acceptance occurred. For example, if acceptance is based on receipt of payment by the beneficiary's bank under Section 4A-403 (a)(1) or (2), there may be cases in which the bank is not certain that payment has been received. There may also be cases in which there is doubt about whether the person demanding payment is the person identified in the payment order as beneficiary of the order.
The last clause of subsection (a) does not apply to cases in which a funds transfer is being used to pay an obligation and a dispute arises between the originator and the beneficiary concerning whether the obligation is in fact owed. For example, the originator may try to prevent payment to the beneficiary by the beneficiary's bank by alleging that the beneficiary is not entitled to payment because of fraud against the originator or a breach of contract relating to the obligation. The fraud or breach of contract claim of the originator may be grounds for recovery by the originator from the beneficiary after the beneficiary is paid, but it does not affect the obligation of the beneficiary's bank to pay the beneficiary. Unless the payment order has been cancelled pursuant to Section 4A-211(c), there is no excuse for refusing to pay the beneficiary and, in a proper case, the refusal may result in consequential damages. Except in the case of a book transfer, in which the beneficiary's bank is also the originator's bank, the originator of a funds transfer cannot cancel a payment order to the beneficiary's bank, with or without the consent of that bank, because the originator is not the sender of that order. Thus, the beneficiary's bank may safely ignore any instruction by the originator to withhold payment to the beneficiary.
4. Subsection (b) states the duty of the beneficiary's bank to notify the beneficiary of receipt of the order. If acceptance occurs under Section 4A-209(b)(1) the beneficiary is normally notified. Thus, subsection (b) applies primarily to cases in which acceptance occurs under Section 4A-209(b)(2) or (3). Notice under subsection (b) is not required if the person entitled to the notice agrees or a funds transfer system rule provides that notice is not required and the beneficiary is given notice of the rule. In ACH transactions the normal practice is not to give notice to the beneficiary unless notice is requested by the beneficiary. This practice can be continued by adoption of a funds transfer system rule. Subsection (a) is not subject to variation by agreement or by a funds transfer system rule.
Section 36-4A-405. Payment by beneficiary's bank to beneficiary.
(a) If the beneficiary's bank credits an account of the beneficiary of a payment order, payment of the bank's obligation under Section 36-4A-404(a) occurs when and to the extent (i) the beneficiary is notified of the right to withdraw the credit, (ii) the bank lawfully applies the credit to a debt of the beneficiary, or (iii) funds with respect to the order are otherwise made available to the beneficiary by the bank.
(b) If the beneficiary's bank does not credit an account of the beneficiary of a payment order, the time when payment of the bank's obligation under Section 36-4A-404(a) occurs is governed by principles of law that determine when an obligation is satisfied.
(c) Except as stated in subsections (d) and (e), if the beneficiary's bank pays the beneficiary of a payment order under a condition to payment or agreement of the beneficiary giving the bank the right to recover payment from the beneficiary if the bank does not receive payment of the order, the condition to payment or agreement is not enforceable.
(d) A funds-transfer system rule may provide that payments made to beneficiaries of funds transfers made through the system are provisional until receipt of payment by the beneficiary's bank of the payment order it accepted. A beneficiary's bank that makes a payment that is provisional under the rule is entitled to refund from the beneficiary if (i) the rule requires that both the beneficiary and the originator be given notice of the provisional nature of the payment before the funds transfer is initiated, (ii) the beneficiary, the beneficiary's bank, and the originator's bank agreed to be bound by the rule, and (iii) the beneficiary's bank did not receive payment of the payment order that it accepted. If the beneficiary is obliged to refund payment to the beneficiary's bank, acceptance of the payment order by the beneficiary's bank is nullified and no payment by the originator of the funds transfer to the beneficiary occurs under Section 36-4A-406.
(e) This subsection applies to a funds transfer that includes a payment order transmitted over a funds-transfer system that (i) nets obligations multilaterally among participants, and (ii) has in effect a loss-sharing agreement among participants for the purpose of providing funds necessary to complete settlement of the obligations of one or more participants that do not meet their settlement obligations. If the beneficiary's bank in the funds transfer accepts a payment order and the system fails to complete settlement pursuant to its rules with respect to any payment order in the funds transfer, (i) the acceptance by the beneficiary's bank is nullified and no person has any right or obligation based on the acceptance, (ii) the beneficiary's bank is entitled to recover payment from the beneficiary, (iii) no payment by the originator to the beneficiary occurs under Section 36-4A-406, and (iv) subject to Section 36-4A-402(e), each sender in the funds transfer is excused from its obligation to pay its payment order under Section 36-4A-402(c) because the funds transfer has not been completed.
1. This section defines when the beneficiary's bank pays the beneficiary and when the obligation of the beneficiary's bank under Section 4A-404 to pay the beneficiary is satisfied. In almost all cases the bank will credit an account of the beneficiary when it receives a payment order. In the typical case the beneficiary is paid when the beneficiary is given notice of the right to withdraw the credit. Subsection (a)(i). In some cases payment might be made to the beneficiary not by releasing funds to the beneficiary, but by applying the credit to a debt of the beneficiary. Subsection (a)(ii). In this case the beneficiary gets the benefit of the payment order because a debt of the beneficiary has been satisfied. The two principal cases in which payment will occur in this manner are setoff by the beneficiary's bank and payment of the proceeds of the payment order to a garnishing creditor of the beneficiary. These cases are discussed in Comment 2 to Section 4A-502.
2. If a beneficiary's bank releases funds to the beneficiary before it receives payment from the sender of the payment order, it assumes the risk that the sender may not pay the sender's order because of suspension of payments or other reason. Subsection (c). As stated in Comment 5 to Section 4A-209, the beneficiary's bank can protect itself against this risk by delaying acceptance. But if the bank accepts the order it is obliged to pay the beneficiary. If the beneficiary's bank has given the beneficiary notice of the right to withdraw a credit made to the beneficiary's account, the beneficiary has received payment from the bank. Once payment has been made to the beneficiary with respect to an obligation incurred by the bank under Section 4A-404(a), the payment cannot be recovered by the beneficiary's bank unless subsection (d) or (e) applies. Thus, a right to withdraw a credit cannot be revoked if the right to withdraw constituted payment of the bank's obligation. This principle applies even if funds were released as a "loan" (see Comment 5 to Section 4A-209), or were released subject to a condition that they would be repaid in the event the bank does not receive payment from the sender of the payment order, or the beneficiary agreed to return the payment if the bank did not receive payment from the sender.
3. Subsection (c) is subject to an exception stated in subsection (d) which is intended to apply to automated clearing house transfers. ACH transfers are made in batches. A beneficiary's bank will normally accept, at the same time and as part of a single batch, payment orders with respect to many different originator's banks. Comment 2 to Section 4A-206. The custom in ACH transactions is to release funds to the beneficiary early on the payment date even though settlement to the beneficiary's bank does not occur until later in the day. The understanding is that payments to beneficiaries are provisional until the beneficiary's bank receives settlement. This practice is similar to what happens when a depositary bank releases funds with respect to a check forwarded for collection. If the check is dishonored the bank is entitled to recover the funds from the customer. ACH transfers are widely perceived as check substitutes. Section 4A-405(d) allows the funds transfer system to adopt a rule making payments to beneficiaries provisional. If such a rule is adopted, a beneficiary's bank that releases funds to the beneficiary will be able to recover the payment if it doesn't receive payment of the payment order that it accepted. There are two requirements with respect to the funds transfer system rule. The beneficiary, the beneficiary's bank and the originator's bank must all agree to be bound by the rule and the rule must require that both the beneficiary and the originator be given notice of the provisional nature of the payment before the funds transfer is initiated. There is no requirement that the notice be given with respect to a particular funds transfer. Once notice of the provisional nature of the payment has been given, the notice is effective for all subsequent payments to or from the person to whom the notice was given. Subsection (d) provides only that the funds transfer system rule must require notice to the beneficiary and the originator. The beneficiary's bank will know what the rule requires, but it has no way of knowing whether the originator's bank complied with the rule. Subsection (d) does not require proof that the originator received notice. If the originator's bank failed to give the required notice and the originator suffered as a result, the appropriate remedy is an action by the originator against the originator's bank based on that failure. But the beneficiary's bank will not be able to get the benefit of subsection (d) unless the beneficiary had notice of the provisional nature of the payment because subsection (d) requires an agreement by the beneficiary to be bound by the rule. Implicit in an agreement to be bound by a rule that makes a payment provisional is a requirement that notice be given of what the rule provides. The notice can be part of the agreement or separately given. For example, notice can be given by providing a copy of the system's operating rules.
With respect to ACH transfers made through a Federal Reserve Bank acting as an intermediary bank, the Federal Reserve Bank is obliged under Section 4A-402(b) to pay a beneficiary's bank that accepts the payment order. Unlike Fedwire transfers, under current ACH practice a Federal Reserve Bank that processes a payment order does not obligate itself to pay if the originator's bank fails to pay the Federal Reserve Bank. It is assumed that the Federal Reserve will use its right of preemption which is recognized in Section 4A-107 to disclaim the Section 4A-402(b) obligation in ACH transactions if it decides to retain the provisional payment rule.
4. Subsection (e) is another exception to subsection (c). It refers to funds transfer systems having loss-sharing rules described in the subsection. CHIPS has proposed a rule that fits the description. Under the CHIPS loss-sharing rule the CHIPS banks will have agreed to contribute funds to allow the system to settle for payment orders sent over the system during the day in the event that one or more banks are unable to meet their settlement obligations. Subsection (e) applies only if CHIPS fails to settle despite the loss-sharing rule. Since funds under the loss-sharing rule will be instantly available to CHIPS and will be in an amount sufficient to cover any failure that can be reasonably anticipated, it is extremely unlikely that CHIPS would ever fail to settle. Thus, subsection (e) addresses an event that should never occur. If that event were to occur, all payment orders made over the system would be canceled under the CHIPS rule. Thus, no bank would receive settlement, whether or not a failed bank was involved in a particular funds transfer. Subsection (e) provides that each funds transfer in which there is a payment order with respect to which there is a settlement failure is unwound. Acceptance by the beneficiary's bank in each funds transfer is nullified. The consequences of nullification are that the beneficiary has no right to receive or retain payment by the beneficiary's bank, no payment is made by the originator to the beneficiary and each sender in the funds transfer is, subject to Section 4A-402(e), not obliged to pay its payment order and is entitled to refund under Section 4A-402(d) if it has already paid.
Section 36-4A-406. Payment by originator to beneficiary; discharge of underlying obligation.
(a) Subject to Sections 36-4A-211(e), 36-4A-405(d), and 36-4A-405(e), the originator of a funds transfer pays the beneficiary of the originator's payment order (i) at the time a payment order for the benefit of the beneficiary is accepted by the beneficiary's bank in the funds transfer and (ii) in an amount equal to the amount of the order accepted by the beneficiary's bank, but not more than the amount of the originator's order.
(b) If payment under subsection (a) is made to satisfy an obligation, the obligation is discharged to the same extent discharge would result from payment to the beneficiary of the same amount in money, unless (i) the payment under subsection (a) was made by a means prohibited by the contract of the beneficiary with respect to the obligation, (ii) the beneficiary, within a reasonable time after receiving notice of receipt of the order by the beneficiary's bank, notified the originator of the beneficiary's refusal of the payment, (iii) funds with respect to the order were not withdrawn by the beneficiary or applied to a debt of the beneficiary, and (iv) the beneficiary would suffer a loss that could reasonably have been avoided if payment had been made by a means complying with the contract. If payment by the originator does not result in discharge under this section, the originator is subrogated to the rights of the beneficiary to receive payment from the beneficiary's bank under Section 36-4A-404(a).
(c) For the purpose of determining whether discharge of an obligation occurs under subsection (b), if the beneficiary's bank accepts a payment order in an amount equal to the amount of the originator's payment order less charges of one or more receiving banks in the funds transfer, payment to the beneficiary is deemed to be in the amount of the originator's order unless upon demand by the beneficiary the originator does not pay the beneficiary the amount of the deducted charges.
(d) Rights of the originator or of the beneficiary of a funds transfer under this section may be varied only by agreement of the originator and the beneficiary.
1. Subsection (a) states the fundamental rule of Article 4A that payment by the originator to the beneficiary is accomplished by providing to the beneficiary the obligation of the beneficiary's bank to pay. Since this obligation arises when the beneficiary's bank accepts a payment order, the originator pays the beneficiary at the time of acceptance and in the amount of the payment order accepted.
2. In a large percentage of funds transfers, the transfer is made to pay an obligation of the originator. Subsection (a) states that the beneficiary is paid by the originator when the beneficiary's bank accepts a payment order for the benefit of the beneficiary. When that happens the effect under subsection (b) is to substitute the obligation of the beneficiary's bank for the obligation of the originator. The effect is similar to that under Article 3 if a cashier's check payable to the beneficiary had been taken by the beneficiary. Normally, payment by funds transfer is sought by the beneficiary because it puts money into the hands of the beneficiary more quickly. As a practical matter the beneficiary and the originator will nearly always agree to the funds transfer in advance. Under subsection (b) acceptance by the beneficiary's bank will result in discharge of the obligation for which payment was made unless the beneficiary had made a contract with respect to the obligation which did not permit payment by the means used. Thus, if there is no contract of the beneficiary with respect to the means of payment of the obligation, acceptance by the beneficiary's bank of a payment order to the account of the beneficiary can result in discharge.
3. Suppose Beneficiary's contract stated that payment of an obligation owed by Originator was to be made by a cashier's check of Bank A. Instead, Originator paid by a funds transfer to Beneficiary's account in Bank B. Bank B accepted a payment order for the benefit of Beneficiary by immediately notifying Beneficiary that the funds were available for withdrawal. Before Beneficiary had a reasonable opportunity to withdraw the funds Bank B suspended payments. Under the unless clause of subsection (b) Beneficiary is not required to accept the payment as discharging the obligation owed by Originator to Beneficiary if Beneficiary's contract means that Beneficiary was not required to accept payment by wire transfer. Beneficiary could refuse the funds transfer as payment of the obligation and could resort to rights under the underlying contract to enforce the obligation. The rationale is that Originator cannot impose the risk of Bank B's insolvency on Beneficiary if Beneficiary had specified another means of payment that did not entail that risk. If Beneficiary is required to accept Originator's payment, Beneficiary would suffer a loss that would not have occurred if payment had been made by a cashier's check on Bank A, and Bank A has not suspended payments. In this case Originator will have to pay twice. It is obliged to pay the amount of its payment order to the bank that accepted it and has to pay the obligation it owes to Beneficiary which has not been discharged. Under the last sentence of subsection (b) Originator is subrogated to Beneficiary's right to receive payment from Bank B under Section 4A-404(a).
4. Suppose Beneficiary's contract called for payment by a Fedwire transfer to Bank B, but the payment order accepted by Bank B was not a Fedwire transfer. Before the funds were withdrawn by Beneficiary, Bank B suspended payments. The sender of the payment order to Bank B paid the amount of the order to Bank B. In this case the payment by Originator did not comply with Beneficiary's contract, but the noncompliance did not result in a loss to Beneficiary as required by subsection (b) (iv). A Fedwire transfer avoids the risk of insolvency of the sender of the payment order to Bank B, but it does not affect the risk that Bank B will suspend payments before withdrawal of the funds by Beneficiary. Thus, the unless clause of subsection (b) is not applicable and the obligation owed to Beneficiary is discharged.
5. Charges of receiving banks in a funds transfer normally are nominal in relationship to the amount being paid by the originator to the beneficiary. Wire transfers are normally agreed to in advance and the parties may agree concerning how these charges are to be divided between the parties. Subsection (c) states a rule that applies in the absence of agreement. In some funds transfers charges of banks that execute payment orders are collected by deducting the charges from the amount of the payment order issued by the bank, i.e. the bank issues a payment order that is slightly less than the amount of the payment order that is being executed. The process is described in Comment 3 to Section 4A-302. The result in such a case is that the payment order accepted by the beneficiary's bank will be slightly less than the amount of the originator's order. Subsection (c) recognizes the principle that a beneficiary is entitled to full payment of a debt paid by wire transfer as a condition to discharge. On the other hand, Subsection (c) prevents a beneficiary from denying the originator the benefit of the payment by asserting that discharge did not occur because deduction of bank charges resulted in less than full payment. The typical case is one in which the payment is made to exercise a valuable right such as an option which is unfavorable to the beneficiary. Subsection (c) allows discharge notwithstanding the deduction unless the originator fails to reimburse the beneficiary for the deducted charges after demand by the beneficiary.
Section 36-4A-501. Variation by agreement and effect of funds-transfer system rule.
(a) Except as otherwise provided in this chapter, the rights and obligations of a party to a funds transfer may be varied by agreement of the affected party.
(b) 'Funds-transfer system rule' means a rule of an association of banks (i) governing transmission of payment orders by means of a funds-transfer system of the association or rights and obligations with respect to those orders, or (ii) to the extent the rule governs rights and obligations between banks that are parties to a funds transfer in which a Federal Reserve Bank, acting as an intermediary bank, sends a payment order to the beneficiary's bank. Except as otherwise provided in this chapter, a funds-transfer system rule governing rights and obligations between participating banks using the system may be effective even if the rule conflicts with this chapter and indirectly affects another party to the funds transfer who does not consent to the rule. A funds-transfer system rule may also govern rights and obligations of parties other than participating banks using the system to the extent stated in Sections 36-4A-404(c), 36-4A-405(d), and 36-4A-507(c).
1. This section is designed to give some flexibility to Article 4A. Funds transfer system rules govern rights and obligations between banks that use the system. They may cover a wide variety of matters such as form and content of payment orders, security procedures, cancellation rights and procedures, indemnity rights, compensation rules for delays in completion of a funds transfer, time and method of settlement, credit restrictions with respect to senders of payment orders and risk allocation with respect to suspension of payments by a participating bank. Funds transfer system rules can be very effective in supplementing the provisions of Article 4A and in filling gaps that may be present in Article 4A. To the extent they do not conflict with Article 4A there is no problem with respect to their effectiveness. In that case they merely supplement Article 4A. Section 4A-501 goes further. It states that unless the contrary is stated, funds transfer system rules can override provisions of Article 4A. Thus, rights and obligations of a sender bank and a receiving bank with respect to each other can be different from that stated in Article 4A to the extent a funds transfer system rule applies. Since funds transfer system rules are defined as those governing the relationship between participating banks, a rule can have a direct effect only on participating banks. But a rule that affects the conduct of a participating bank may indirectly affect the rights of nonparticipants such as the originator or beneficiary of a funds transfer, and such a rule can be effective even though it may affect nonparticipants without their consent. For example, a rule might prevent execution of a payment order or might allow cancellation of a payment order with the result that a funds transfer is not completed or is delayed. But a rule purporting to define rights and obligations of nonparticipants in the system would not be effective to alter Article 4A rights because the rule is not within the definition of funds transfer system rule. Rights and obligations arising under Article 4A may also be varied by agreement of the affected parties, except to the extent Article 4A otherwise provides. Rights and obligations arising under Article 4A can also be changed by Federal Reserve regulations and operating circulars of Federal Reserve Banks. Section 4A-107.
2. Subsection (b)(ii) refers to ACH transfers. Whether an ACH transfer is made through an automated clearing house of a Federal Reserve Bank or through an automated clearing house of another association of banks, the rights and obligations of the originator's bank and the beneficiary's bank are governed by uniform rules adopted by various associations of banks in various parts of the nation. With respect to transfers in which a Federal Reserve Bank acts as intermediary bank these rules may be incorporated, in whole or in part, in operating circulars of the Federal Reserve Bank. Even if not so incorporated these rules can still be binding on the association banks. If a transfer is made through a Federal Reserve Bank, the rules are effective under subsection (b)(ii). If the transfer is not made through a Federal Reserve Bank, the association rules are effective under subsection (b)(i).
Section 36-4A-502. Creditor process served on receiving bank; setoff by beneficiary's bank.
(a) As used in this section, 'creditor process' means levy, attachment, garnishment, notice of lien, sequestration, or similar process issued by or on behalf of a creditor or other claimant with respect to an account.
(b) This subsection applies to creditor process with respect to an authorized account of the sender of a payment order if the creditor process is served on the receiving bank. For the purpose of determining rights with respect to the creditor process, if the receiving bank accepts the payment order the balance in the authorized account is deemed to be reduced by the amount of the payment order to the extent the bank did not otherwise receive payment of the order, unless the creditor process is served at a time and in a manner affording the bank a reasonable opportunity to act on it before the bank accepts the payment order.
(c) If a beneficiary's bank has received a payment order for payment to the beneficiary's account in the bank, the following rules apply:
(1) The bank may credit the beneficiary's account. The amount credited may be set off against an obligation owed by the beneficiary to the bank or may be applied to satisfy creditor process served on the bank with respect to the account.
(2) The bank may credit the beneficiary's account and allow withdrawal of the amount credited unless creditor process with respect to the account is served at a time and in a manner affording the bank a reasonable opportunity to act to prevent withdrawal.
(3) If creditor process with respect to the beneficiary's account has been served and the bank has had a reasonable opportunity to act on it, the bank may not reject the payment order except for a reason unrelated to the service of process.
(d) Creditor process with respect to a payment by the originator to the beneficiary pursuant to a funds transfer may be served only on the beneficiary's bank with respect to the debt owed by that bank to the beneficiary. Any other bank served with the creditor process is not obliged to act with respect to the process.
1. When a receiving bank accepts a payment order, the bank normally receives payment from the sender by debiting an authorized account of the sender. In accepting the sender's order the bank may be relying on a credit balance in the account. If creditor process is served on the bank with respect to the account before the bank accepts the order but the bank employee responsible for the acceptance was not aware of the creditor process at the time the acceptance occurred, it is unjust to the bank to allow the creditor process to take the credit balance on which the bank may have relied. Subsection (b) allows the bank to obtain payment from the sender's account in this case. Under that provision, the balance in the sender's account to which the creditor process applies is deemed to be reduced by the amount of the payment order unless there was sufficient time for notice of the service of creditor process to be received by personnel of the bank responsible for the acceptance.
2. Subsection (c) deals with payment orders issued to the beneficiary's bank. The bank may credit the beneficiary's account when the order is received, but under Section 4A-404(a) the bank incurs no obligation to pay the beneficiary until the order is accepted pursuant to Section 4A-209(b). Thus, before acceptance, the credit to the beneficiary's account is provisional. But under Section 4A-209(b) acceptance occurs if the beneficiary's bank pays the beneficiary pursuant to Section 4A-405(a). Under that provision, payment occurs if the credit to the beneficiary's account is applied to a debt of the beneficiary. Subsection (c)(1) allows the bank to credit the beneficiary's account with respect to a payment order and to accept the order by setting off the credit against an obligation owed to the bank or applying the credit to creditor process with respect to the account.
Suppose a beneficiary's bank receives a payment order for the benefit of a customer. Before the bank accepts the order, the bank learns that creditor process has been served on the bank with respect to the customer's account. Normally there is no reason for a beneficiary's bank to reject a payment order, but if the beneficiary's account is garnished, the bank may be faced with a difficult choice. If it rejects the order, the garnishing creditor's potential recovery of funds of the beneficiary is frustrated. It may be faced with a claim by the creditor that the rejection was a wrong to the creditor. If the bank accepts the order, the effect is to allow the creditor to seize funds of its customer, the beneficiary. Subsection (c)(3) gives the bank no choice in this case. It provides that it may not favor its customer over the creditor by rejecting the order. The beneficiary's bank may rightfully reject only if there is an independent basis for rejection.
3. Subsection (c)(2) is similar to subsection (b). Normally the beneficiary's bank will release funds to the beneficiary shortly after acceptance or it will accept by releasing funds. Since the bank is bound by a garnishment order served before funds are released to the beneficiary, the bank might suffer a loss if funds were released without knowledge that a garnishment order had been served. Subsection (c)(2) protects the bank if it did not have adequate notice of the garnishment when the funds were released.
4. A creditor may want to reach funds involved in a funds transfer. The creditor may try to do so by serving process on the originator's bank, an intermediary bank or the beneficiary's bank. The purpose of subsection (d) is to guide the creditor and the court as to the proper method of reaching the funds involved in a funds transfer. A creditor of the originator can levy on the account of the originator in the originator's bank before the funds transfer is initiated, but that levy is subject to the limitations stated in subsection (b). The creditor of the originator cannot reach any other funds because no property of the originator is being transferred. A creditor of the beneficiary cannot levy on property of the originator and until the funds transfer is completed by acceptance by the beneficiary's bank of a payment order for the benefit of the beneficiary, the beneficiary has no property interest in the funds transfer which the beneficiary's creditor can reach. A creditor of the beneficiary that wants to reach the funds to be received by the beneficiary must serve creditor process on the beneficiary's bank to reach the obligation of the beneficiary's bank to pay the beneficiary which arises upon acceptance by the beneficiary's bank under Section 4A-404(a).
5. "Creditor process" is defined in subsection (a) to cover a variety of devices by which a creditor of the holder of a bank account or a claimant to a bank account can seize the account. Procedure and nomenclature varies widely from state to state. The term used in Section 4A-502 is a generic term.
Section 36-4A-503. Injunction or restraining order with respect to funds transfer.
For proper cause and in compliance with applicable law, a court may restrain (i) a person from issuing a payment order to initiate a funds transfer, (ii) an originator's bank from executing the payment order of the originator, or (iii) the beneficiary's bank from releasing funds to the beneficiary or the beneficiary from withdrawing the funds. A court may not otherwise restrain a person from issuing a payment order, paying or receiving payment of a payment order, or otherwise acting with respect to a funds transfer.
This section is related to Section 4A-502(d) and to Comment 4 to Section 4A-502. It is designed to prevent interruption of a funds transfer after it has been set in motion. The initiation of a funds transfer can be prevented by enjoining the originator or the originator's bank from issuing a payment order. After the funds transfer is completed by acceptance of a payment order by the beneficiary's bank, that bank can be enjoined from releasing funds to the beneficiary or the beneficiary can be enjoined from withdrawing the funds. No other injunction is permitted. In particular, intermediary banks are protected, and injunctions against the originator and the originator's bank are limited to issuance of a payment order. Except for the beneficiary's bank, nobody can be enjoined from paying a payment order, and no receiving bank can be enjoined from receiving payment from the sender of the order that it accepted.
Section 36-4A-504. Order in which items and payment orders may be charged to account; order of withdrawals from account.
(a) If a receiving bank has received more than one payment order of the sender or one or more payment orders and other items that are payable from the sender's account, the bank may charge the sender's account with respect to the various orders and items in any sequence.
(b) In determining whether a credit to an account has been withdrawn by the holder of the account or applied to a debt of the holder of the account, credits first made to the account are first withdrawn or applied.
Subsection (a) concerns priority among various obligations that are to be paid from the same account. A customer may have written checks on its account with the receiving bank and may have issued one or more payment orders payable from the same account. If the account balance is not sufficient to cover all of the checks and payment orders, some checks may be dishonored and some payment orders may not be accepted. Although there is no concept of wrongful dishonor of a payment order in Article 4A in the absence of an agreement to honor by the receiving bank, some rights and obligations may depend on the amount in the customer's account. Section 4A-209(b)(3) and Section 4A-210(b). Whether dishonor of a check is wrongful also may depend upon the balance in the customer's account. Under subsection (a), the bank is not required to consider the competing items and payment orders in any particular order. Rather it may charge the customer's account for the various items and orders in any order. Suppose there is $12,000 in the customer's account. If a check for $5,000 is presented for payment and the bank receives a $10,000 payment order from the customer, the bank could dishonor the check and accept the payment order. Dishonor of the check is not wrongful because the account balance was less than the amount of the check after the bank charged the account $10,000 on account of the payment order. Or, the bank could pay the check and not execute the payment order because the amount of the order is not covered by the balance in the account.
Section 36-4A-505. Preclusion of objection to debit of customer's account.
If a receiving bank has received payment from its customer with respect to a payment order issued in the name of the customer as sender and accepted by the bank, and the customer received notification reasonably identifying the order, the customer is precluded from asserting that the bank is not entitled to retain the payment unless the customer notifies the bank of the customer's objection to the payment within one year after the notification was received by the customer.
This section is in the nature of a statute of repose for objecting to debits made to the customer's account. A receiving bank that executes payment orders of a customer may have received payment from the customer by debiting the customer's account with respect to a payment order that the customer was not required to pay. For example, the payment order may not have been authorized or verified pursuant to Section 4A-202 or the funds transfer may not have been completed. In either case the receiving bank is obliged to refund the payment to the customer and this obligation to refund payment cannot be varied by agreement. Section 4A-204 and Section 4A-402. Refund may also be required if the receiving bank is not entitled to payment from the customer because the bank erroneously executed a payment order. Section 4A-303. A similar analysis applies to that case. Section 4A-402(d) and (f) require refund and the obligation to refund may not be varied by agreement. Under 4A-505, however, the obligation to refund may not be asserted by the customer if the customer has not objected to the debiting of the account within one year after the customer received notification of the debit.
Section 36-4A-506. Rate of interest.
(a) If, under this chapter, a receiving bank is obliged to pay interest with respect to a payment order issued to the bank, the amount payable may be determined (i) by agreement of the sender and receiving bank, or (ii) by a funds-transfer system rule if the payment order is transmitted through a funds-transfer system.
(b) If the amount of interest is not determined by an agreement or rule as stated in subsection (a), the amount is calculated by multiplying the applicable Federal Funds rate by the amount on which interest is payable, and then multiplying the product by the number of days for which interest is payable. The applicable Federal Funds rate is the average of the Federal Funds rates published by the Federal Reserve Bank of New York for each of the days for which interest is payable divided by three hundred sixty. The Federal Funds rate for any day on which a published rate is not available is the same as the published rate for the next preceding day for which there is a published rate. If a receiving bank that accepted a payment order is required to refund payment to the sender of the order because the funds transfer was not completed, but the failure to complete was not due to any fault by the bank, the interest payable is reduced by a percentage equal to the reserve requirement on deposits of the receiving bank.
1. A receiving bank is required to pay interest on the amount of a payment order received by the bank in a number of situations. Sometimes the interest is payable to the sender and in other cases it is payable to either the originator or the beneficiary of the funds transfer. The relevant provisions are Section 4A-204(a), Section 4A-209(b) (3), Section 4A-210(b), Section 4A-305(a), Section 4A-402(d) and Section 4A-404(b). The rate of interest may be governed by a funds transfer system rule or by agreement as stated in subsection (a). If subsection (a) doesn't apply, the rate is determined under subsection (b). Subsection (b) is illustrated by the following example. A bank is obliged to pay interest on $1,000,000 for three days, July 3, July 4, and July 5. The published Fed Funds rate is .082 for July 3 and .081 for July 5. There is no published rate for July 4 because that day is not a banking day. The rate for July 3 applies to July 4. The applicable Fed Funds rate is .08167 (the average of .082, .082, and .081) divided by 360 which equals .0002268. The amount of interest payable is $1,000,000 X .0002268 X 3 = $680.40.
2. In some cases, interest is payable in spite of the fact that there is no fault by the receiving bank. The last sentence of subsection (b) applies to those cases. For example, a funds transfer might not be completed because the beneficiary's bank rejected the payment order issued to it by the originator's bank or an intermediary bank. Section 4A-402(c) provides that the originator is not obliged to pay its payment order and Section 4A-402(d) provides that the originator's bank must refund any payment received plus interest. The requirement to pay interest in this case is not based on fault by the originator's bank. Rather, it is based on restitution. Since the originator's bank had the use of the originator's money, it is required to pay the originator for the value of that use. The value of that use is not determined by multiplying the interest rate by the refundable amount because the originator's bank is required to deposit with the Federal Reserve a percentage of the bank's deposits as a reserve requirement. Since that deposit does not bear interest, the bank had use of the refundable amount reduced by a percentage equal to the reserve requirement. If the reserve requirement is 12%, the amount of interest payable by the bank under the formula stated in subsection (b) is reduced by 12%.
Section 36-4A-507. Choice of law.
(a) The following rules apply unless the affected parties otherwise agree or subsection (c) applies:
(1) The rights and obligations between the sender of a payment order and the receiving bank are governed by the law of the jurisdiction in which the receiving bank is located.
(2) The rights and obligations between the beneficiary's bank and the beneficiary are governed by the law of the jurisdiction in which the beneficiary's bank is located.
(3) The issue of when payment is made pursuant to a funds transfer by the originator to the beneficiary is governed by the law of the jurisdiction in which the beneficiary's bank is located.
(b) If the parties described in each paragraph of subsection (a) have made an agreement selecting the law of a particular jurisdiction to govern rights and obligations between each other, the law of that jurisdiction governs those rights and obligations, whether or not the payment order or the funds transfer bears a reasonable relation to that jurisdiction.
(c) A funds-transfer system rule may select the law of a particular jurisdiction to govern (i) rights and obligations between participating banks with respect to payment orders transmitted or processed through the system, or (ii) the rights and obligations of some or all parties to a funds transfer any part of which is carried out by means of the system. A choice of law made pursuant to clause (i) is binding on participating banks. A choice of law made pursuant to clause (ii) is binding on the originator, other sender, or a receiving bank having notice that the funds-transfer system might be used in the funds transfer and of the choice of law by the system when the originator, other sender, or receiving bank issued or accepted a payment order. The beneficiary of a funds transfer is bound by the choice of law if, when the funds transfer is initiated, the beneficiary has notice that the funds-transfer system might be used in the funds transfer and of the choice of law by the system. The law of a jurisdiction selected pursuant to this subsection may govern, whether or not that law bears a reasonable relation to the matter in issue.
(d) In the event of inconsistency between an agreement under subsection (b) and a choice-of-law rule under subsection (c), the agreement under subsection (b) prevails.
(e) If a funds transfer is made by use of more than one funds-transfer system and there is inconsistency between choice-of-law rules of the systems, the matter in issue is governed by the law of the selected jurisdiction that has the most significant relationship to the matter in issue.
1. Funds transfers are typically interstate or international in character. If part of a funds transfer is governed by Article 4A and another part is governed by other law, the rights and obligations of parties to the funds transfer may be unclear because there is no clear consensus in various jurisdictions concerning the juridical nature of the transaction. Unless all of a funds transfer is governed by a single law it may be very difficult to predict the result if something goes wrong in the transfer. Section 4A-507 deals with this problem. Subsection (b) allows parties to a funds transfer to make a choice-of-law agreement. Subsection (c) allows a funds transfer system to select the law of a particular jurisdiction to govern funds transfers carried out by means of the system. Subsection (a) states residual rules if no choice of law has occurred under subsection (b) or subsection (c).
2. Subsection (a) deals with three sets of relationships. Rights and obligations between the sender of a payment order and the receiving bank are governed by the law of the jurisdiction in which the receiving bank is located. If the receiving bank is the beneficiary's bank the rights and obligations of the beneficiary are also governed by the law of the jurisdiction in which the receiving bank is located. Suppose Originator, located in Canada, sends a payment order to Originator's Bank located in a state in which Article 4A has been enacted. The order is for payment to an account of Beneficiary in a bank in England. Under subsection (a)(1), the rights and obligations of Originator and Originator's Bank toward each other are governed by Article 4A if an action is brought in a court in the Article 4A state. If an action is brought in a Canadian court, the conflict of laws issue will be determined by Canadian law which might or might not apply the law of the state in which Originator's Bank is located. If that law is applied, the execution of Originator's order will be governed by Article 4A, but with respect to the payment order of Originator's Bank to the English bank, Article 4A may or may not be applied with respect to the rights and obligations between the two banks. The result may depend upon whether action is brought in a court in the state in which Originator's Bank is located or in an English court. Article 4A is binding only on a court in a state that enacts it. It can have extraterritorial effect only to the extent courts of another jurisdiction are willing to apply it. Subsection (c) also bears on the issues discussed in this Comment.
Under Section 4A-406 payment by the originator to the beneficiary of the funds transfer occurs when the beneficiary's bank accepts a payment order for the benefit of the beneficiary. A jurisdiction in which Article 4A is not in effect may follow a different rule or it may not have a clear rule. Under Section 4A-507(a)(3) the issue is governed by the law of the jurisdiction in which the beneficiary's bank is located. Since the payment to the beneficiary is made through the beneficiary's bank it is reasonable that the issue of when payment occurs be governed by the law of the jurisdiction in which the bank is located. Since it is difficult in many cases to determine where a beneficiary is located, the location of the beneficiary's bank provides a more certain rule.
3. Subsection (b) deals with choice-of-law agreements and it gives maximum freedom of choice. Since the law of funds transfers is not highly developed in the case law there may be a strong incentive to choose the law of a jurisdiction in which Article 4A is in effect because it provides a greater degree of certainly with respect to the rights of various parties. With respect to commercial transactions, it is often said that "[u]niformity and predictability based upon commercial convenience are the prime considerations in making the choice of governing law . . . ." R. Leflar, American Conflicts Law, Section 185 (1977). Subsection (b) is derived in part from recently enacted choice-of-law rules in the States of New York and California. N.Y. Gen. Obligations Law 5-1401 (McKinney's 1989 Supp.) and California Civil Code Section 1646.5. This broad endorsement of freedom of contract is an enhancement of the approach taken by Restatement (Second) of Conflict of Laws Section 187(b) (1971). The Restatement recognizes the basic right of freedom of contract, but the freedom granted the parties may be more limited than the freedom granted here. Under the formulation of the Restatement, if there is no substantial relationship to the jurisdiction whose law is selected and there is no "other" reasonable basis for the parties' choice, then the selection of the parties need not be honored by a court. Further, if the choice is violative of a fundamental policy of a state which has a materially greater interest than the chosen state, the selection could be disregarded by a court. Those limitations are not found in subsection (b).
4. Subsection (c) may be the most important provision in regard to creating uniformity of law in funds transfers. Most rights stated in Article 4A regard parties who are in privity of contract such as originator and beneficiary, sender and receiving bank, and beneficiary's bank and beneficiary. Since they are in privity they can make a choice of law by agreement. But that is not always the case. For example, an intermediary bank that improperly executes a payment order is not in privity with either the originator or the beneficiary. The ability of a funds transfer system to make a choice of law by rule is a convenient way of dispensing with individual agreements and to cover cases in which agreements are not feasible. It is probable that funds transfer systems will adopt a governing law to increase the certainty of commercial transactions that are effected over such systems. A system rule might adopt the law of an Article 4A state to govern transfers on the system in order to provide a consistent, unitary, law governing all transfers made on the system. To the extent such system rules develop, individual choice-of-law agreements become unnecessary.
Subsection (c) has broad application. A system choice of law applies not only to rights and obligations between banks that use the system, but may also apply to other parties to the funds transfer so long as some part of the transfer was carried out over the system. The originator and any other sender or receiving bank in the funds transfer is bound if at the time it issues or accepts a payment order it had notice that the funds transfer involved use of the system and that the system chose the law of a particular jurisdiction. Under Section 4A-107, the Federal Reserve by regulation could make a similar choice of law to govern funds transfers carried out by use of Federal Reserve Banks. Subsection (d) is a limitation on subsection (c). If parties have made a choice-of-law agreement that conflicts with a choice of law made under subsection (c), the agreement prevails.
5. Subsection (e) addresses the case in which a funds transfer involves more than one funds transfer system and the systems adopt conflicting choice-of-law rules. The rule that has the most significant relationship to the matter at issue prevails. For example, each system should be able to make a choice of law governing payment orders transmitted over that system without regard to a choice of law made by another system."
SECTION 303. Section 36-1-105(2) is amended to read:
"(2) Where one of the following provisions of this title specifies the applicable law, that provision governs and a contrary agreement is effective only to the extent permitted by the law (including the conflict of laws rules) so specified:
Rights of seller's creditors against
sold goods. Section 36-2-402.
Applicability of the Chapter on
Bank Deposits and Collections. Section 36-4-102.
Bulk transfers subject to the
Chapter on Bulk Transfers. Section 36-6-102.
Applicability of the Chapter on
Investment Securities. Section 36-8-106.
Perfection provisions of the
Chapter on Secured Transactions. Section 36-9-103.
Governing law in the Chapter on
Funds Transfers. Section 36-4A-507."
SECTION 304. In order to complete the assignment of responsibilities to and establish the physical location of certain programs with the appropriate agencies and departments and to finalize the division of personnel and resources required by Act 181 of 1993, the council established pursuant to Section 23-6-500 of the 1976 Code as amended is authorized and directed to issue a report and plan for the final division of programs, resources, and personnel between the Department of Public Safety, the Department of Revenue, and the Department of Transportation. The report and plan must be completed not later than sixty days after the effective date of this act and reported to the South Carolina Budget and Control Board. The Budget and Control Board shall act in a ministerial capacity and shall effectuate the necessary transfer of personnel and resources in strict accordance with the plan within forty-five days of receiving the report and plan from the council.
SECTION 305. This act takes effect upon approval by the Governor except as follows:
(1) Sections 1-3-240(C)(2), 11-9-825, 12-4-40, 12-4-50, 12-4-60, 12-4-70, 12-4-760, 12-37-2680, and 12-43-300(A) take effect February 1, 1995.
(2) Sections 38-3-110, 38-27-520(d), 38-43-106(C), 38-73-1380, 38-77-580, 38-79-270, 38-81-270, 42-5-60, 43-7-410(B) and (C), 43-7-420, 43-7-430, 43-7-440, 43-21-10, 43-21-130, 43-21-150, 44-6-5(4), 44-6-140(A)(2), 44-6-146(A), 44-6-170(A)(13) and (14), 44-6-520, 44-6-540, 44-6-720(B)(4)(b)(iv) and (5), 44-6-730, 44-7-90, 44-38-380(A)(1)(i), and SECTION 288 take effect July 1, 1995./.
Amend title to conform.
Senator STILWELL explained the amendment.
There being no further amendments, the Bill was amended and ordered returned to the House with amendments.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it has granted Free Conference Powers and appointed Reps. Jennings, Cobb-Hunter and Fleming of the Committee of Free Conference on the part of the House on:
S. 101 -- Senators Leventis, Ryberg, Rose, Giese and Elliott: A BILL TO AMEND SECTION 22-3-550, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO A MAGISTRATE'S JURISDICTION OVER CERTAIN CRIMINAL OFFENSES AND A MAGISTRATE'S AUTHORITY TO IMPOSE SENTENCES, SO AS TO PROVIDE THAT THE PROHIBITION AGAINST A MAGISTRATE SENTENCING ANY PERSON TO CONSECUTIVE TERMS OF IMPRISONMENT TOTALING MORE THAN NINETY DAYS DOES NOT APPLY TO SENTENCES FOR CONVICTIONS RESULTING FROM A VIOLATION OF CHAPTER 11 OF TITLE 34 PERTAINING TO FRAUDULENT CHECKS OR A VIOLATION OF SECTION 16-13-10 RELATING TO FORGERY WHICH INVOLVES A CHECK.
Very respectfully,
Speaker of the House
Received as information.
S. 101 -- Senators Leventis, Ryberg, Rose, Giese and Elliott: A BILL TO AMEND SECTION 22-3-550, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO A MAGISTRATE'S JURISDICTION OVER CERTAIN CRIMINAL OFFENSES AND A MAGISTRATE'S AUTHORITY TO IMPOSE SENTENCES, SO AS TO PROVIDE THAT THE PROHIBITION AGAINST A MAGISTRATE SENTENCING ANY PERSON TO CONSECUTIVE TERMS OF IMPRISONMENT TOTALING MORE THAN NINETY DAYS DOES NOT APPLY TO SENTENCES FOR CONVICTIONS RESULTING FROM A VIOLATION OF CHAPTER 11 OF TITLE 34 PERTAINING TO FRAUDULENT CHECKS OR A VIOLATION OF SECTION 16-13-10 RELATING TO FORGERY WHICH INVOLVES A CHECK.
Senator COURSON, having notified the PRESIDENT that he was withdrawing as a member of Committee of Conference on the part of the Senate on S. 101, the PRESIDENT appointed Senator STILWELL.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it has adopted the report of the Committee of Free Conference on the following bill:
S. 101 -- Senators Leventis, Ryberg, Rose, Giese and Elliott: A BILL TO AMEND SECTION 22-3-550, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO A MAGISTRATE'S JURISDICTION OVER CERTAIN CRIMINAL OFFENSES AND A MAGISTRATE'S AUTHORITY TO IMPOSE SENTENCES, SO AS TO PROVIDE THAT THE PROHIBITION AGAINST A MAGISTRATE SENTENCING ANY PERSON TO CONSECUTIVE TERMS OF IMPRISONMENT TOTALING MORE THAN NINETY DAYS DOES NOT APPLY TO SENTENCES FOR CONVICTIONS RESULTING FROM A VIOLATION OF CHAPTER 11 OF TITLE 34 PERTAINING TO FRAUDULENT CHECKS OR A VIOLATION OF SECTION 16-13-10 RELATING TO FORGERY WHICH INVOLVES A CHECK.
Very respectfully,
Speaker of the House
Received as information.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it refuses to concur in the amendments proposed by the Senate to:
S. 264 -- Senators Stilwell, Moore, Rose and Jackson: A BILL TO ENACT TECHNICAL AMENDMENTS TO THE GOVERNMENTAL RESTRUCTURING ACT OF 1993 AND TO PROVIDE OTHER RESTRUCTURING MEASURES CONCERNING GOVERNMENTAL ORGANIZATIONS. (Abbreviated Title)
Very respectfully,
Speaker of the House
On motion of Senator STILWELL, the Senate insisted upon its amendments to S. 264 and asked for a Committee of Conference.
Whereupon, the PRESIDENT appointed Senators JACKSON, STILWELL and MOORE of the Committee of Conference on the part of the Senate and a message was sent to the House accordingly.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it has appointed Reps. Harrison, Hodges and Huff of the Committee of Conference on the part of the House on:
S. 264 -- Senators Stilwell, Moore, Rose and Jackson: A BILL TO ENACT TECHNICAL AMENDMENTS TO THE GOVERNMENTAL RESTRUCTURING ACT OF 1993 AND TO PROVIDE OTHER RESTRUCTURING MEASURES CONCERNING GOVERNMENTAL ORGANIZATIONS. (Abbreviated Title)
Very respectfully,
Speaker of the House
Received as information.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it has adopted the report of the Committee of Conference on the following bill:
H. 3135 -- Reps. Hodges, Tucker, Knotts, Inabinett, Baxley and Whatley: A BILL TO AMEND SECTION 23-28-20, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE APPOINTMENT OF RESERVE POLICE OFFICERS, SO AS TO AUTHORIZE THE CHIEF, WITH THE APPROVAL OF THE MUNICIPALITY, TO PROVIDE FOR THE COMPENSATION OF RESERVE POLICE OFFICERS.
Very respectfully,
Speaker of the House
Received as information.
H. 3135 -- Reps. Hodges, Tucker, Knotts, Inabinett, Baxley and Whatley: A BILL TO AMEND SECTION 23-28-20, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE APPOINTMENT OF RESERVE POLICE OFFICERS, SO AS TO AUTHORIZE THE CHIEF, WITH THE APPROVAL OF THE MUNICIPALITY, TO PROVIDE FOR THE COMPENSATION OF RESERVE POLICE OFFICERS.
On motion of Senator McCONNELL, with unanimous consent, the Report of the Committee of Conference was taken up for immediate consideration.
Senator McCONNELL spoke on the report.
On motion of Senator McCONNELL, the Report of the Committee of Conference to H. 3135 was adopted as follows:
The COMMITTEE OF CONFERENCE, to whom was referred:
H. 3135 -- Reps. Hodges, Tucker, Knotts, Inabinett, Baxley and Whatley: A BILL TO AMEND SECTION 23-28-20, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE APPOINTMENT OF RESERVE POLICE OFFICERS, SO AS TO AUTHORIZE THE CHIEF, WITH THE APPROVAL OF THE MUNICIPALITY, TO PROVIDE FOR THE COMPENSATION OF RESERVE POLICE OFFICERS.
Beg leave to report that they have duly and carefully considered the same and recommend:
That the same do pass with the following amendments:
Amend the bill, as and if amended, by striking all after the enacting words and inserting therein the following:
SECTION 1. Section 23-28-20 of the 1976 Code is amended to read:
"Section 23-28-20. (A) The chief may, in his discretion, or sheriff may appoint such number of reserve police officers as may be needed but not exceeding the number of regular full-time officers of his department. The number of full-time officers shall may not be decreased because of the institution or expansion of a reserve force. Each period of time reserves shall serve shall must be determined and specified by the chief or sheriff in writing. The powers and duties of reserves shall must be prescribed by the chief or sheriff and they shall be are subject to removal by him at any time.
(B) The chief or sheriff, with the approval of the governing body, also shall allow for the compensation of reserve police officers for work done pursuant to Section 23-24-10 when compensation for approved public activities would be paid by a party other than the municipality or county. Reserve officers must be paid for approved public activities the same as off-duty police officers. Work performed for compensation must be in excess of the minimum logged service time required by Section 23-28-70. No additional training, beyond what is required for reserve police officers, is required for reserve police officers who receive compensation.
(C) Before assuming their duties reserves shall must:
(A)(1) take the oath of office required by law.;
(B)(2) be bonded in an amount determined by the governing body of the county, municipality, or other political entity which shall may be not less than one thousand, five hundred dollars.;
(C)(3) successfully complete a course of training specified by the South Carolina Law Enforcement Training Advisory Council and endorsed by the chief or sheriff who appoints them."
SECTION 2. Section 23-28-70 of the 1976 Code is amended to read:
"Section 23-28-70. Reserves shall serve and function as law enforcement officers only on specific orders and directions of the chief or sheriff. To maintain status, reserves shall maintain a minimum logged service time of twenty hours per month or sixty hours per quarter.
Each reserve shall be in proximate contact, by radio or otherwise, with the full-time officer to whom he is assigned While performing in any capacity as a reserve, a reserve police officer at all times must be accompanied by a full-time certified South Carolina police officer. Reserves shall in no case assume full-time duties of law enforcement officers without complying with all requirements for full-time officers.
Each department utilizing reserves shall have one full-time officer as coordinator-supervisor who shall must be responsible directly to the chief or sheriff."
SECTION 3. Item 1 of Section 16-23-20 of the 1976 Code, as last amended by Section 274, Act No. 181 of 1993, is further amended to read:
"(1) Regular, salaried law enforcement officers and reserve police officers of a municipality, or county of the State, uncompensated Governor's constables, law enforcement officers of the federal government or other states when they are carrying out official duties while in this State, and deputy enforcement officers of the Natural Resources Enforcement Division of the Department of Natural Resources within their territorial jurisdictions, and reserve police officers while serving and functioning as law enforcement officers as authorized by Section 23-28-10 et seq."
SECTION 4. This act takes effect upon approval by the Governor.
Amend title to conform.
/s/Glenn F. McConnell /s/Dave C. Waldrop, Jr. /s/Holly A. Cork /s/Floyd Breeland C.K. "Greg" Gregory /s/Michael S. "Mickey" Whatley On Part of the Senate. On Part of the House.
, and a message was sent to the House accordingly.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that the report of the Committee of Conference having been adopted by both Houses, and this Bill having been read three times in each House, it was ordered that the title thereof be changed to that of an Act, and that it be enrolled for ratification:
H. 3135 -- Reps. Hodges, Tucker, Knotts, Inabinett, Baxley and Whatley: A BILL TO AMEND SECTION 23-28-20, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE APPOINTMENT OF RESERVE POLICE OFFICERS, SO AS TO AUTHORIZE THE CHIEF, WITH THE APPROVAL OF THE MUNICIPALITY, TO PROVIDE FOR THE COMPENSATION OF RESERVE POLICE OFFICERS.
Very respectfully,
Speaker of the House
Received as information.
H. 3448 -- Reps. Spearman, McTeer and Koon: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 50-11-27 SO AS TO PROHIBIT THE HUNTING OF MIGRATORY WATERFOWL ON LAKE MURRAY IN CERTAIN AREAS AND PROVIDE PENALTIES.
On motion of Senator MOORE, with unanimous consent, the Report of the Committee of Conference was taken up for immediate consideration.
Senator MOORE spoke on the report.
On motion of Senator MOORE, the Report of the Committee of Conference to H. 3448 was adopted as follows:
The COMMITTEE OF CONFERENCE, to whom was referred:
H. 3448 -- Reps. Spearman, McTeer and Koon: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 50-11-27 SO AS TO PROHIBIT THE HUNTING OF MIGRATORY WATERFOWL ON LAKE MURRAY IN CERTAIN AREAS AND PROVIDE PENALTIES.
Beg leave to report that they have duly and carefully considered the same and recommend:
That the same do pass with the following amendments:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/SECTION 1. The 1976 Code is amended by adding:
"Section 50-11-27. It is unlawful to hunt migratory waterfowl on Lake Murray within two hundred yards of a dwelling without written permission of the owner and occupant. As used in this section, Lake Murray includes the area from Lake Murray Dam to one-half mile upstream of Harmons Bridge on Secondary Road 41-44 and upstream to Kempsons Ferry Bridge on Highway 395. A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days."
SECTION 2. This act takes effect upon approval by the Governor./
Renumber sections to conform.
Amend title to conform.
Make all necessary technical corrections.
/s/Senator Thomas L. Moore /s/Rep. Larry L. Koon /s/Senator James A. Lander /s/Rep. Molly M. Spearman /s/Senator Robert L. Waldrep /s/Rep. William D. Witherspoon On Part of the Senate. On Part of the House.
, and a message was sent to the House accordingly.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that the report of the Committee of Conference having been adopted by both Houses, and this Bill having been read three times in each House, it was ordered that the title thereof be changed to that of an Act, and that it be enrolled for ratification:
H. 3448 -- Reps. Spearman, McTeer and Koon: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 50-11-27 SO AS TO PROHIBIT THE HUNTING OF MIGRATORY WATERFOWL ON LAKE MURRAY IN CERTAIN AREAS AND PROVIDE PENALTIES.
Very respectfully,
Speaker of the House
Received as information.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it concurs in the amendments proposed by the Senate to:
H. 3518 -- Rep. Richardson: A BILL TO AMEND SECTION 38-31-20, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE "SOUTH CAROLINA PROPERTY AND CASUALTY INSURANCE GUARANTY ASSOCIATION ACT", SO AS TO CHANGE THE DEFINITION OF "COVERED CLAIM"; AND TO AMEND SECTION 38-31-100, RELATING TO THE SAME ACT, THE REQUIREMENT THAT CLAIMANTS EXHAUST RIGHTS UNDER OTHER POLICIES, AND CLAIMS RECOVERABLE FROM MORE THAN ONE ASSOCIATION, SO AS TO DELETE CERTAIN LANGUAGE, AND PROVIDE, AMONG OTHER THINGS, THAT ANY RECOVERY UNDER THIS ACT MUST BE REDUCED BY THE STATUTORY CAP APPLICABLE TO THE OTHER INSURANCE GUARANTY ASSOCIATION OR ITS EQUIVALENT.
and has ordered the Bill Enrolled for Ratification.
Very respectfully,
Speaker of the House
Received as information.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it refuses to concur in the amendments proposed by the Senate to:
H. 3839 -- Labor, Commerce and Industry Committee: A BILL TO AMEND SECTION 34-3-540, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO COPIES AND REPRODUCTIONS OF BANKING RECORDS AND THEIR ADMISSIBILITY INTO EVIDENCE, SO AS TO FURTHER PROVIDE FOR THE MANNER IN WHICH THESE RECORDS MAY BE COPIED AND REPRODUCED, TO REVISE THE ENTITIES TO WHICH THIS SECTION APPLIES, AND TO FURTHER PROVIDE FOR THE MANNER IN WHICH COPIES AND REPRODUCTIONS OF THESE RECORDS MAY BE ADMITTED INTO EVIDENCE.
Very respectfully,
Speaker of the House
On motion of Senator SALEEBY, with unanimous consent, the Senate receded from its amendments to H. 3839 and a message was sent to the House accordingly, requesting that proper notation be recorded on the Bill.
Ordered that the title be changed to that of an Act and the Act enrolled for Ratification.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it concurs in the amendments proposed by the Senate to:
H. 3907 -- Agriculture, Natural Resources and Environmental Affairs Committee: A BILL TO AMEND TITLE 44, CHAPTER 56, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO HAZARDOUS WASTE, BY ADDING ARTICLE 4 SO AS TO PROVIDE FOR DRYCLEANING FACILITY DISCHARGE REHABILITATION, TO CREATE THE DRYCLEANING FACILITY RESTORATION TRUST FUND AND PROVIDE FOR ITS USES, TO ESTABLISH PROCEDURES FOR RECEIVING SITE REHABILITATION FUNDS, TO REQUIRE DRYCLEANING FACILITIES TO REGISTER AND PAY FEES, TO ESTABLISH SURCHARGES FOR CONDUCTING A DRYCLEANING BUSINESS OR FOR PRODUCING OR IMPORTING DRYCLEANING SOLVENTS, AND TO ESTABLISH THE DRYCLEANING ADVISORY COUNCIL AND TO PROVIDE FOR ITS MEMBERSHIP AND DUTIES.
and has ordered the Bill Enrolled for Ratification.
Very respectfully,
Speaker of the House
Received as information.
H. 3663 -- Rep. Kirsh: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 56-3-2340 SO AS TO CREATE AN ANTIQUE MOTOR VEHICLE DEALER LICENSE PLATE.
The House returned the Bill with amendments.
On motion of Senator GIESE, the Senate nonconcurred in the House amendments and a message was sent to the House accordingly.
H. 3515 -- Reps. Harrison and Hodges: A BILL TO AMEND SECTION 2-13-190, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DISTRIBUTION OF THE ADVANCE SHEETS OF STATUTES, SO AS TO REVISE THE PERSONS AND ENTITIES TO WHOM THE ADVANCE SHEETS MUST BE DISTRIBUTED; AND TO AMEND SECTION 2-13-240, AS AMENDED, RELATING TO THE DISTRIBUTION OF SETS OF THE CODE OF LAWS OF SOUTH CAROLINA, SO AS TO REVISE THE PERSONS AND ENTITIES TO WHOM THE SETS MUST BE DISTRIBUTED.
The House returned the Bill with amendments.
Senator STILWELL explained the amendments.
On motion of Senator STILWELL, the Senate nonconcurred in the House amendments and a message was sent to the House accordingly.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it insists upon the amendments proposed by the House to:
H. 3515 -- Reps. Harrison and Hodges: A BILL TO AMEND SECTION 2-13-190, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DISTRIBUTION OF THE ADVANCE SHEETS OF STATUTES, SO AS TO REVISE THE PERSONS AND ENTITIES TO WHOM THE ADVANCE SHEETS MUST BE DISTRIBUTED; AND TO AMEND SECTION 2-13-240, AS AMENDED, RELATING TO THE DISTRIBUTION OF SETS OF THE CODE OF LAWS OF SOUTH CAROLINA, SO AS TO REVISE THE PERSONS AND ENTITIES TO WHOM THE SETS MUST BE DISTRIBUTED.
asks for a Committee of Conference, and has appointed Reps. Jennings, J. Young and Klauber of the committee on the part of the House.
Very respectfully,
Speaker of the House
Whereupon, the PRESIDENT appointed Senators COURTNEY, MOORE and STILWELL of the Committee of Conference on the part of the Senate and a message was sent to the House accordingly.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it concurs in the amendments proposed by the Senate to:
H. 3604 -- Reps. Wilkins, McMahand, Herdklotz, Haskins, Littlejohn, Wells, Rice, Jaskwhich, D. Smith, Tripp, Walker, Davenport, Fair, Allison, Lanford and Cato: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 55-11-220 SO AS TO CREATE AN AIRPORT ENVIRONS AREA WITHIN THE GREENVILLE-SPARTANBURG AIRPORT DISTRICT AND PROVIDE THAT AN AIRPORT ENVIRONS AUTHORITY IS CREATED AND CONFERRED CERTAIN POWERS TO ENSURE COMPATIBLE LAND USE OF PROPERTY IN THE ENVIRONS AREA, PROVIDE FOR THE COMPOSITION OF THE AUTHORITY, AND PROVIDE THAT IF THERE IS A CONFLICT BETWEEN THE POWERS CONFERRED ON THE AUTHORITY AND OTHER REGULATIONS APPLICABLE TO THE SAME AREA, THE PROVISIONS CONFERRED TO THE AUTHORITY PURSUANT TO THE PROVISIONS OF THIS ACT CONTROL.
and has ordered the Bill Enrolled for Ratification.
Very respectfully,
Speaker of the House
Received as information.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it insists upon the amendments proposed by the House to:
H. 3663 -- Rep. Kirsh: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 56-3-2340 SO AS TO CREATE AN ANTIQUE MOTOR VEHICLE DEALER LICENSE PLATE.
asks for a Committee of Conference, and has appointed Reps. Kirsh, Simrill and Cooper of the committee on the part of the House.
Very respectfully,
Speaker of the House
Whereupon, the PRESIDENT appointed Senators GIESE, PATTERSON and REESE of the Committee of Conference on the part of the Senate and a message was sent to the House accordingly.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it concurs in the amendments proposed by the Senate to:
H. 4158 -- Ways and Means Committee: A BILL TO AMEND SECTIONS 12-4-710 AND 12-4-720, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE POWERS OF THE DEPARTMENT OF REVENUE AND TAXATION WITH RESPECT TO PROPERTY TAX EXEMPTIONS AND THE METHOD OF APPLYING FOR THE EXEMPTIONS, SO AS TO REVISE OR EXTEND THE TIME FOR FILING EXEMPTION APPLICATIONS AND ADD ADDITIONAL CATEGORIES OF EXEMPTIONS FOR WHICH NO APPLICATION IS REQUIRED; TO PROVIDE THAT LISTING A PROPERTY AS EXEMPT ON A PROPERTY TAX RETURN IS CONSIDERED AN APPLICATION; TO REQUIRE PROPERTY TAXPAYERS FILING PROPERTY TAX RETURNS TO CLAIM THE EXEMPTION ON THE RETURN FOR EACH YEAR THE PROPERTY IS EXEMPT; AND TO PROVIDE WHEN ADDITIONAL APPLICATIONS MUST BE FILED BY TAXPAYERS NOT REQUIRED TO FILE ANNUAL PROPERTY TAX RETURNS; AND TO AMEND SECTION 12-37-220, AS AMENDED, RELATING TO PROPERTY TAX EXEMPTIONS, SO AS TO CONFORM IT TO THE AMENDMENTS MADE BY THIS ACT AND TO EXTEND THE EXEMPTION FOR TWO PERSONAL MOTOR VEHICLES OF PERSONS REQUIRED TO USE WHEELCHAIRS TO INSTANCES WHEN THE OWNER IS ELIGIBLE FOR THE SPECIAL MOTOR VEHICLE LICENSE PLATE ALLOWED SUCH PERSONS.
and has ordered the Bill Enrolled for Ratification.
Very respectfully,
Speaker of the House
Received as information.
H. 4239 -- Reps. Wilkins, H. Brown, J. Brown, Cato, Harrison, Sharpe, Townsend, Haskins and Huff: A CONCURRENT RESOLUTION TO PROVIDE THAT WHEN THE RESPECTIVE HOUSES OF THE GENERAL ASSEMBLY ADJOURN ON JUNE 1, 1995, AT 5:00 P.M. THEY SHALL STAND ADJOURNED TO MEET AT 10:00 A.M. ON JUNE 5, 6, 7, 8, AND 9, 1995, FOR CONSIDERATION OF LOCAL UNCONTESTED MATTERS HAVING UNANIMOUS CONSENT OF THE MEMBERS OF THE AFFECTED DELEGATION AND FOR THE CONSIDERATION OF CONGRATULATORY OR SYMPATHY RESOLUTIONS AND TO PROVIDE THAT WHEN THE RESPECTIVE HOUSES OF THE GENERAL ASSEMBLY ADJOURN ON JUNE 9, 1995, THEY SHALL STAND ADJOURNED TO MEET IN REGULAR STATEWIDE SESSION UNTIL 11:00 A.M., MONDAY, JUNE 19, 1995, AND TO CONTINUE IN SESSION, IF NECESSARY, THROUGH 5:OO P.M., THURSDAY, JUNE 22, 1995, AND TO PROVIDE FOR THOSE ITEMS OF LEGISLATIVE BUSINESS IN ORDER DURING THAT PERIOD, AND TO PROVIDE THAT WHEN THE GENERAL ASSEMBLY ADJOURNS NO LATER THAN 5:00 P.M. ON THURSDAY, JUNE 22, 1995, IT SHALL STAND ADJOURNED TO MEET ON TUESDAY, OCTOBER 3, 1995, SOLELY FOR THE PURPOSE OF ELECTING PERSONS TO FILL THE JUDICIAL OFFICES CREATED IN THE 1995-96 GENERAL APPROPRIATIONS ACT AND PROVIDE THAT IT SHALL STAND ADJOURNED SINE DIE WHEN THE ELECTION IS FINISHED.
On motion of Senator MOORE, with unanimous consent, the Report of the Committee of Conference was taken up for immediate consideration.
Senator MOORE spoke on the report.
On motion of Senator MOORE, the Report of the Committee of Conference to H. 4239 was adopted as follows:
The COMMITTEE OF CONFERENCE, to whom was referred:
H. 4239 -- Reps. Wilkins, H. Brown, J. Brown, Cato, Harrison, Sharpe, Townsend, Haskins and Huff: A CONCURRENT RESOLUTION TO PROVIDE THAT WHEN THE RESPECTIVE HOUSES OF THE GENERAL ASSEMBLY ADJOURN ON JUNE 1, 1995, AT 5:00 P.M. THEY SHALL STAND ADJOURNED TO MEET AT 10:00 A.M. ON JUNE 5, 6, 7, 8, AND 9, 1995, FOR CONSIDERATION OF LOCAL UNCONTESTED MATTERS HAVING UNANIMOUS CONSENT OF THE MEMBERS OF THE AFFECTED DELEGATION AND FOR THE CONSIDERATION OF CONGRATULATORY OR SYMPATHY RESOLUTIONS AND TO PROVIDE THAT WHEN THE RESPECTIVE HOUSES OF THE GENERAL ASSEMBLY ADJOURN ON JUNE 9, 1995, THEY SHALL STAND ADJOURNED TO MEET IN REGULAR STATEWIDE SESSION UNTIL 11:00 A.M., MONDAY, JUNE 19, 1995, AND TO CONTINUE IN SESSION, IF NECESSARY, THROUGH 5:00 P.M., THURSDAY, JUNE 22, 1995, AND TO PROVIDE FOR THOSE ITEMS OF LEGISLATIVE BUSINESS IN ORDER DURING THAT PERIOD, AND TO PROVIDE THAT WHEN THE GENERAL ASSEMBLY ADJOURNS NO LATER THAN 5:00 P.M. ON THURSDAY, JUNE 22, 1995, IT SHALL STAND ADJOURNED TO MEET ON TUESDAY, OCTOBER 3, 1995, SOLELY FOR THE PURPOSE OF ELECTING PERSONS TO FILL THE JUDICIAL OFFICES CREATED IN THE 1995-96 GENERAL APPROPRIATIONS ACT AND PROVIDE THAT IT SHALL STAND ADJOURNED SINE DIE WHEN THE ELECTION IS FINISHED.
Beg leave to report that they have duly and carefully considered the same and recommend:
That the same do pass with the following amendments:
Amend the resolution, as and if amended, by striking all after the resolving clause and inserting therein the following:
/That the mandatory SINE DIE adjournment date for the General Assembly prescribed in Section 2-1-180 of the 1976 Code is extended, as authorized by that code section, to permit the General Assembly to continue in session under the terms and conditions set forth below. When the respective houses adjourn on Thursday, June 1, 1995, each house shall stand adjourned not later than 5:00 p.m. to meet thereafter under the following terms and conditions:
(1) When the respective houses of the General Assembly adjourn on Thursday, June 1, 1995, not later than 5:00 p.m., they shall stand adjourned to meet at 10:00 a.m. on June 2, 5, 6, 7, 8, and 9, 1995, for consideration of local and uncontested matters which have the unanimous consent of the members of the delegation affected by the legislation and for consideration of resolutions expressing sympathy or congratulations, provided that the President of the Senate and the Speaker of the House are authorized to call their respective bodies back into statewide session on Friday, June 2, 1995, for the consideration of the conference or free conference reports on H. 3362, H. 3363, H. 3647, and H. 3690 if a report has been agreed to by the conferees prior to 5:00 p.m. on June 1; provided, however, that if the House and Senate meet on Friday, June 2, they shall adjourn no later than 5:00 p.m. to reconvene under the terms and conditions of this resolution and they are further authorized to meet on June 2, 5, 6, 7, or 8, 1995, for the ratification of acts which have been enrolled; and
(2) When each house adjourns on Friday, June 9, 1995, it shall stand adjourned to meet in statewide session at 11:00 a.m., Monday, June 12, 1995, and to continue in statewide session, if necessary, no later than 5:00 P.M., Thursday, June 15, 1995, for:
(a) a joint session of the General Assembly to be held at 12:00 p.m. on Monday, June 12, 1995, for the purpose an election to fill Seat 2 of the Family Court for the Fifth Judicial Circuit if screening has been completed and a report has been issued by the Joint Legislative Screening Committee as to all candidates for such seat;
(b) the consideration of gubernatorial vetoes;
(c) the receipt or confirmation, or both, of appointments;
(d) the ratification of acts;
(e) the consideration of local matters where the affected delegation is unanimous;
(f) receipt or consideration, or both, of conference and free conference reports;
(g) the consideration of statewide legislation reauthorizing Act 497 of 1994;
(h) concurrent resolutions, proposed by the Conference Committee on H. 4239: (1) affecting SINE DIE adjournment for the exclusive purposes of setting or changing the date or time set for the election to fill Seat 2 of the Family Court for the Fifth Judicial Circuit; (2) affecting consideration of the Conference or Free Conference Reports on H. 3362, H. 3363, H. 3647, and H. 3690; or (3) setting a date and time for the General Assembly to reconvene solely for the purpose of holding a joint assembly to fill any vacancy for judicial office if new judicial offices are created in the 1995 General Appropriation Act and screening has been completed and a report issued by the Joint Legislative Screening Committee and to further provide that when the election of these judicial offices is completed, the respective houses of the General Assembly shall adjourn SINE DIE./
Amend the title to read:
/TO PROVIDE THAT WHEN THE RESPECTIVE HOUSES OF THE GENERAL ASSEMBLY ADJOURN ON JUNE 1, 1995, NOT LATER THAN 5:00 P.M. THEY SHALL STAND ADJOURNED TO MEET AT 10:00 A.M. ON JUNE 2, 5, 6, 7, 8, AND 9, 1995, FOR CONSIDERATION OF LOCAL UNCONTESTED MATTERS HAVING UNANIMOUS CONSENT OF THE MEMBERS OF THE AFFECTED DELEGATION AND FOR THE CONSIDERATION OF CONGRATULATORY OR SYMPATHY RESOLUTIONS, AND TO PROVIDE FOR THE RATIFICATION OF ACTS ON THURSDAY, JUNE 8, 1995, AND TO PROVIDE THAT WHEN THE RESPECTIVE HOUSES OF THE GENERAL ASSEMBLY ADJOURN ON JUNE 9, 1995, THEY SHALL STAND ADJOURNED TO MEET IN REGULAR STATEWIDE SESSION AT 11:00 A.M., MONDAY, JUNE 12, 1995, AND TO CONTINUE IN SESSION, IF NECESSARY, THROUGH 5:00 P.M., THURSDAY, JUNE 15, 1995, AND TO PROVIDE FOR A JOINT ASSEMBLY FOR THE PURPOSE OF AN ELECTION TO FILL SEAT 2 OF THE FAMILY COURT FOR THE FIFTH JUDICIAL CIRCUIT AT 12:00 P.M. NOON ON MONDAY, JUNE 12, 1995, AND TO PROVIDE FOR THOSE ITEMS OF LEGISLATIVE BUSINESS IN ORDER DURING THAT PERIOD, AND TO PROVIDE THAT WHEN THE GENERAL ASSEMBLY ADJOURNS NO LATER THAN 5:00 P.M. ON THURSDAY, JUNE 15, 1995, IT SHALL STAND ADJOURNED SINE DIE./
Amend title to conform.
/s/Senator Donald Holland /s/Rep. Terry E. Haskins /s/Senator Glenn McConnell /s/Rep. William D. Boan /s/Senator Thomas L. Moore /s/Rep. Doug Smith On Part of the Senate. On Part of the House.
, and a message was sent to the House accordingly.
Columbia, S.C., June 1, 1995
Mr. President and Senators:
The House respectfully informs your Honorable Body that it has adopted the report of the Committee of Conference on the following Bill:
H. 4239 -- Reps. Wilkins, H. Brown, J. Brown, Cato, Harrison, Sharpe, Townsend, Haskins and Huff: A CONCURRENT RESOLUTION TO PROVIDE THAT WHEN THE RESPECTIVE HOUSES OF THE GENERAL ASSEMBLY ADJOURN ON JUNE 1, 1995, NOT LATER THAN 5:00 P.M. THEY SHALL STAND ADJOURNED TO MEET AT 10:00 A.M. ON JUNE 2, 5, 6, 7, 8, AND 9, 1995, FOR CONSIDERATION OF LOCAL UNCONTESTED MATTERS HAVING UNANIMOUS CONSENT OF THE MEMBERS OF THE AFFECTED DELEGATION AND FOR THE CONSIDERATION OF CONGRATULATORY OR SYMPATHY RESOLUTIONS, AND TO PROVIDE FOR THE RATIFICATION OF ACTS ON THURSDAY, JUNE 8, 1995, AND TO PROVIDE THAT WHEN THE RESPECTIVE HOUSES OF THE GENERAL ASSEMBLY ADJOURN ON JUNE 9, 1995, THEY SHALL STAND ADJOURNED TO MEET IN REGULAR STATEWIDE SESSION AT 11:00 A.M., MONDAY, JUNE 12, 1995, AND TO CONTINUE IN SESSION, IF NECESSARY, THROUGH 5:00 P.M., THURSDAY, JUNE 15, 1995, AND TO PROVIDE FOR A JOINT ASSEMBLY FOR THE PURPOSE OF AN ELECTION TO FILL SEAT 2 OF THE FAMILY COURT FOR THE FIFTH JUDICIAL CIRCUIT AT 12:00 P.M. NOON ON MONDAY, JUNE 12, 1995, AND TO PROVIDE FOR THOSE ITEMS OF LEGISLATIVE BUSINESS IN ORDER DURING THAT PERIOD, AND TO PROVIDE THAT WHEN THE GENERAL ASSEMBLY ADJOURNS NO LATER THAN 5:00 P.M. ON THURSDAY, JUNE 15, 1995, IT SHALL STAND ADJOURNED SINE DIE.
Very respectfully,
Speaker of the House
Received as information.
H. 3901 -- Reps. Harrell, Fleming, Cobb-Hunter, Seithel, A. Young, Limbaugh, Wilkins, Wofford, Hallman, H. Brown, Cain, Cotty, Martin, D. Smith, Fulmer, L. Whipper, Shissias, Quinn, McCraw, Knotts, Stuart, Harrison, Sheheen, Huff, Klauber, Beatty, Limehouse, Whatley, Harwell, Hodges, J. Young, Govan, Herdklotz, Jennings, Richardson, Hutson, Delleney and McElveen: A BILL TO AMEND SECTION 12-51-90, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE REDEMPTION OF REAL PROPERTY SOLD FOR DELINQUENT TAXES, SO AS TO INCREASE THE INTEREST RATE FROM EIGHT TO TWELVE PERCENT IN THE LAST SIX MONTHS OF THE REDEMPTION PERIOD FOR ALL REAL PROPERTY NOT ASSESSED AS OWNER-OCCUPIED RESIDENTIAL PROPERTY.
The Senate resumed consideration of the Bill. The question being the adoption of Amendment No. 14 (3901R015.ELP) previously proposed by Senator PASSAILAIGUE.
Senator PASSAILAIGUE argued in favor of the adoption of the amendment.
Senator PASSAILAIGUE moved that the amendment be adopted.
A roll call vote was ordered.
Senator LEATHERMAN asked unanimous consent to address brief remarks to the body.
Senator LEVENTIS objected.
Senator BRYAN moved to lay the amendment on the table.
Senator LEVENTIS raised a Point of Order that the motion to table was out of order inasmuch as a roll call vote had been ordered.
Senator McCONNELL spoke on the Point of Order.
Senator BRYAN spoke on the Point of Order.
The PRESIDENT sustained the Point of Order.
Senator LEATHERMAN rose to a Point of Personal Privilege.
Senator PASSAILAIGUE asked unanimous consent to withdraw the roll call vote.
There was no objection.
Senator LEATHERMAN argued contra to the adoption of the amendment.
Senator LEATHERMAN moved to lay the amendment on the table.
The "ayes" and "nays" were demanded and taken, resulting as follows:
AYES
Bryan Cork Leatherman Ryberg Stilwell Williams
NAYS
Alexander Courson Courtney Giese Glover Gregory Land Lander Leventis Martin Matthews McConnell McGill Mescher Moore O'Dell Passailaigue Patterson Rankin Reese Richter Rose Russell Saleeby Setzler Short Smith, G. Thomas Waldrep Washington Wilson
The Senate refused to table the amendment. The question then was the adoption of the amendment.
The "ayes" and "nays" were demanded and taken, resulting as follows:
AYES
Alexander Boan Bryan Courson Courtney Elliott Giese Glover Gregory Jackson Land Lander Leatherman Leventis Martin Matthews McConnell McGill Mescher Moore O'Dell Passailaigue Patterson Rankin Reese Richter Rose Russell Ryberg Setzler Short Smith, G. Thomas Waldrep Washington Wilson
NAYS
Stilwell
The amendment was adopted.
Senators ROSE and HAYES proposed the following Amendment No. 15 (3901R019.MTR), which was withdrawn:
Amend the bill, as and if amended, by adding an appropriately numbered new SECTION to read:
/SECTION _____. Chapter 1, Title 6 of the 1976 Code is amended by adding:
"Section 6-1-75. In a reassessment year, the governing body of a political subdivision may only collect ad valorem taxes on that portion of the assessed value of real property which does not exceed the assessed value of the property in the prior reassessment plus an amount equal to the percentage increase in the consumer price index since the prior reassessment multiplied by the value of the property in the prior reassessment. However, the tax which would have been due but for operation of this section less the tax authorized by this section may be imposed as a lien against the taxpayer's property and collected upon sale of the property. For the purposes of this section, 'consumer price index' means the consumer price index as certified by the State Budget and Control Board."/
Amend title to conform.
On motion of Senator ROSE, with unanimous consent, Amendment No. 15 was withdrawn.
On motion of Senator McCONNELL, with unanimous consent, Amendment No. 4, which was previously proposed and printed in the Journal of Monday, May 29, 1995, was withdrawn.
Senators WILSON and THOMAS proposed the following Amendment No. 5 (BBM\10332HTC.95):
Amend the bill, as and if amended, by adding an appropriately numbered SECTION to read:
/A. (1) Article 3, Chapter 43, Title 12 of the 1976 Code is amended by adding:
"Section 12-43-217. Notwithstanding any other provision of law, once every fourth year each county or the State shall appraise and equalize those properties under its jurisdiction. Upon completion of the reassessment program, the county or State shall notify every taxpayer of any change in value or classification if the change is one thousand dollars or more. The county and State shall have one year to resolve appeals in value or classification. In the fifth year, the county or State shall implement the program and assess all property on the newly appraised values."
(2) Subsection (A) of Section 12-45-75 of the 1976 Code, as added by Act 443 of 1994, is amended to read:
"(A) The governing body of a county may by ordinance allow a taxpayer to elect to pay all ad valorem taxes on real property located in the county in quarterly installments. No installment election is allowed for taxes paid through an escrow account.
The ordinance must specify the installment due dates and it may provide for installments due and payable before January fifteenth, but the final installment due date must be January fifteenth. The ordinance may provide for a service charge of not more than two dollars on installment payments. For purposes of payment and collection, these service charges are deemed property taxes. The ordinance may not provide penalties for late installments."
B. Article 1, Chapter 9, Title 4 of the 1976 Code is amended by adding:
"Section 4-9-142. (A) The governing body of a county may not increase the millage rate and fee rates imposed for operating purposes, excluding utilities, above the rates imposed for such purposes for the prior tax year. However, the millage rate and fee rates may be increased by the percentage increase in the Consumer Price Index upon a three-fifths vote of the governing body of the county. Notwithstanding the limitation upon millage rate and fee rate increases contained in this subsection, the millage rate and fee rates may be increased for the following purposes:
(1) in response to a natural or environmental disaster as declared by the Governor;
(2) to offset a prior year's deficit, as required by Section 7, Article X of the South Carolina Constitution, or to offset a deficit in providing a service or function which is funded through the imposition of fees by increasing such fees in an amount necessary to cover that deficit; or
(3) to raise the revenue necessary to comply with judicial mandates requiring the use of county funds, personnel, facilities, or equipment.
(B) Notwithstanding any provision of the law to the contrary, the millage rate and fee rates may be further increased upon a two-thirds vote of the governing body. Any new sources of revenues for operating purposes must be approved by a two-thirds vote of the governing body of the county. However, if the governing body has fewer than six members, a three-fifths vote is required.
(C) The restriction contained in this section shall not affect millage which is levied to pay bonded indebtedness or payments for real property purchased using a lease-purchase agreement or used to maintain a reserve account. Nothing in this section prohibits the use of energy-saving performance contracts as provided in Section 48-52-670."
C. Article 1, Chapter 21, Title 5 of the 1976 Code is amended by adding:
"Section 5-21-70. (A) The governing body of a municipality may not increase the millage rate and fee rates, excluding utilities, imposed for operating purposes above the rate and fee rates imposed for such purposes for the prior tax year. However, the millage rate and fee rates may be increased by the percentage increase in the Consumer Price Index upon a three-fifths vote of the governing body of the municipality. Notwithstanding the limitation upon millage rate and fee rate increases contained in this subsection, the millage rate and fee rates may be increased for the following purposes:
(1) in response to a natural or environmental disaster as declared by the Governor;
(2) to offset a prior year's deficit, as required by Section 7, Article X of the South Carolina Constitution, or to offset a deficit in providing a service or function which is funded through the imposition of fees by increasing such fees in an amount necessary to cover that deficit; or
(3) to raise the revenue necessary to comply with judicial mandates requiring the use of municipal funds, personnel, facilities, or equipment.
(B) Notwithstanding any provision of the law to the contrary, the millage rate and fee rates may be further increased upon a two-thirds vote of the governing body. Any new sources of revenues for operating purposes must be approved by a two-thirds vote of the governing body of the municipality. However, if the governing body has fewer than six members, a three-fifths vote is required.
(C) The restriction contained in this section shall not affect millage which is levied to pay bonded indebtedness or payments for real property purchased using a lease-purchase agreement or used to maintain a reserve account. Nothing in this section will prohibit the use of energy-saving performance contracts as provided in Section 48-52-670."
D. Article 1, Title 6 of the 1976 Code is amended by adding:
"Section 6-1-60. (A) The governing body authorized by law to levy special purpose or public service district taxes may not increase the millage rate imposed for operating purposes above the rate imposed for such purposes for the prior tax year. The millage rate may, however, be increased by the percentage increase in the Consumer Price Index upon a three-fifths vote of the governing body authorized by law to levy special purpose or public service district taxes. Notwithstanding the limitation upon millage rate increases contained in this subsection and only to the extent authorized by law on the effective date of this section, the governing body authorized by law to levy special purpose or public service district taxes may increase the millage rate for the following purposes:
(1) in response to a natural or environmental disaster as declared by the Governor;
(2) to offset a prior year's deficit, as required by Section 7, Article X of the South Carolina Constitution; or
(3) to raise the revenue necessary to comply with judicial mandates requiring the use of special purpose or public service district funds, personnel, facilities, or equipment.
(B) The millage rate may be further increased upon a two-thirds vote of the governing body authorized by law to levy special purpose or public service district taxes. Any new sources of revenues for operating purposes must be approved by a two-thirds vote of the governing body authorized by law to levy special purpose or public service district taxes. However, if the governing body has fewer than six members, a three-fifths vote is required.
(C) The restriction contained in this section shall not affect millage which is levied to pay bonded indebtedness or payments for real property purchased using a lease-purchase agreement or used to maintain a reserve account.
(D) The provisions of this section may not be construed to amend or repeal any existing provision of law limiting the fiscal autonomy of a public or special purpose district to the extent those limitations are more restrictive than the provisions of this section."
E. Chapter 73, Title 59 of the 1976 Code is amended by adding:
"Section 59-73-35. (A) The governing body authorized by law to levy school taxes may not increase the millage rate imposed for operating purposes above the rate imposed for such purposes for the prior tax year.
(B) The millage rate may, however, be increased by the percentage increase in the Consumer Price Index upon a three-fifths vote of the governing body authorized by law to levy school taxes of the school district. Notwithstanding the limitation upon millage rate increases contained in this subsection, the millage rate may be increased for the following purposes:
(1) to meet the minimum required local Education Finance Act inflation factor as projected by the State Budget and Control Board, Division of Research and Statistics, and the per pupil maintenance of effort requirement of Section 59-21-1030;
(2) in response to a natural or environmental disaster as declared by the Governor;
(3) to offset a prior year's deficit, as required by Section 7, Article X of the South Carolina Constitution; or
(4) to raise the revenue necessary to comply with judicial mandates requiring the use of school district funds, personnel, facilities, or equipment.
(C) Notwithstanding any provision of law to the contrary, the millage rate may be increased upon a two-thirds vote of the governing body authorized by law to levy school taxes of the school district. Any new sources of revenues for operating purposes must be approved by a two-thirds vote of the governing body authorized by law to levy school taxes of the school district.
(D) The restriction contained in this section shall not affect millage which is levied to pay bonded indebtedness or payments for real property purchased using a lease-purchase agreement or used to maintain a reserve account. Nothing in this section prohibits the use of energy-saving performance contracts as provided in Section 48-52-670.
(E) The provisions of this section may not be construed to amend or repeal any existing provision of law limiting the fiscal autonomy of a school district to the extent those limitations are more restrictive than the provisions of this section.
(F) The provisions of this section do not apply to a school district in which any increase in the ad valorem school tax levy for a particular year must be approved by the qualified electors of the school district in a referendum."
F. Article 3, Chapter 43, Title 12 of the 1976 Code is amended by adding:
"Section 12-43-350. Affected political subdivisions must use a tax bill which must contain standard information and include the following:
(1) name and address of owner;
(2) tax map number;
(3) location of property;
(4) appraised value;
(5) assessed value;
(6) assessed ratio;
(7) millage for each tax district;
(8) receipt number;
(9) total tax liability for current year;
(10) state property tax relief benefit (savings);
(11) local option sales tax credit."
G. Chapter 1, Title 6 of the 1976 Code is amended by adding:
"Section 6-1-80. (A) The counties, municipalities, special purpose, or public service and school districts of this State must provide notice to the public by advertising the public hearing before the adoption of its budget for the next fiscal year in the nonclassified section in at least one South Carolina newspaper of general, audited circulation in the area. The public hearing must give the residents of the jurisdiction the opportunity to express their concerns and to provide ideas or input for discussion by the local governing entity. This notice must be given not less than fifteen days in advance of the public hearing, and must be a minimum of two columns by ten inches (four and one-half by ten inches) with at least a twenty-four point headline.
(B) The notice shall include the following:
(1) the governing entity's name;
(2) the time, date, and location of the public hearing on the budget;
(3) the total, actual, and projected expenditures of the current operating fiscal year in the budget of the governing entity;
(4) the proposed total projected operating expenditures for the next fiscal year as proposed in next year's budget for the governing entity;
(5) the proposed or estimated percentage change in operating budgets between the current fiscal year and the proposed budget;
(6) the total, actual, and projected revenue of all property taxes in dollars for the current fiscal year budget;
(7) the proposed total projected revenue of all property taxes in dollars for the proposed budget;
(8) the millage for the current fiscal year;
(9) the proposed millage as proposed in the budget for the next fiscal year;
(10) the rollback millage rate, computed by dividing the current year's property tax revenues by the budget year property tax assessment base;
(11) any new fees or taxes that would affect more than five percent of the total proposed budget; and
(12) estimated local option sales tax credit, if applicable.
(C) The requirements of this section apply in the preparation of annual budget and supplemental appropriations. When the counties, municipalities, and special purpose or public service districts, and school districts determine that they require a greater tax rate after the adoption of the budget or during the current fiscal year, or fail to provide notice within the above-specified period, they also must comply with the notice requirements of this section."
H. There shall be established a committee which shall be known as the "Joint Ad Hoc Committee on Unfunded Mandates" (hereinafter the "committee"). The committee shall be composed of three members appointed from the House of Representatives by the Speaker of the House of Representatives, three members appointed from the Senate by the President of the Senate, and three members appointed by the Governor. The committee shall investigate and review the role of unfunded mandates and their impact on the counties of this State. The committee shall hold public hearings and report to the General Assembly with specific recommendations on the repeal or modification of all unfunded mandates in existence as of July 1, 1995. The committee's consideration of unfunded mandates shall include, but is not limited to, those mandates imposed by statute, regulation, and judicial interpretation. The committee shall issue a report and make its recommendations to the General Assembly prior to the commencement of the Second Session of the 111th General Assembly. Upon issuing its report, the committee terminates.
I. The 1976 Code is amended by adding:
"Section 12-47-75. If a taxpayer or his agent pays property taxes in error, or the payment is erroneously credited, the treasurer shall credit the amount paid against the actual liability of the taxpayer for the tax year in question. This section applies for any tax year for which proof is provided."
J. (1) The first paragraph of Section 12-43-220(c) of the 1976 Code, as last amended by Act 164 of 1993, is further amended to read:
"The legal residence and not more than five acres contiguous thereto, when owned totally or in part in fee or by life estate and occupied by the owner of the interest, is taxed on an assessment equal to four percent of the fair market value of the property. If residential real property is held in trust and the income beneficiary of the trust occupies the property as a residence, then the assessment ratio allowed by this item applies if the trustee certifies to the assessor that the property is occupied as a residence by the income beneficiary of the trust. When the legal residence is located on leased or rented property and the residence is owned and occupied by the owner of a residence on leased property, even though at the end of the lease period the lessor becomes the owner of the residence, the assessment for the residence is at the same ratio as provided in this item. If the lessee of property upon which he has located his legal residence is liable for taxes on the leased property, then the property upon which he is liable for taxes, not to exceed five acres contiguous to his legal residence, must be assessed at the same ratio provided in this item. If this property has located on it any rented mobile homes or residences which are rented or any business for profit, this four percent value does not apply to those businesses or rental properties. This subsection (c) is not applicable unless the owner of the property or his agents make written application apply therefor to the county assessor on or before the first penalty date for taxes due for the first tax year in which the assessment under this article is made and certify to the following statement: 'Under the penalty of perjury I certify that I meet the qualifications for the special assessment ratio for a legal residence as of January first of for the appropriate tax year'.
To qualify for this special assessment ratio, the owner-occupant must have actually occupied the residence, prior to the date of application, for some period during the tax year and remain an owner-occupant at the time of application. However, when a new or renovated residential property has been certified for occupancy after the beginning of a tax year, the property must be assessed as provided in item (e) on the unimproved value of the property."
(2) This section takes effect upon approval by the Governor and applies with respect to property tax years beginning after 1994.
K. Section 11-11-440(A) of the 1976 Code is amended to read:
"(A) The General Assembly may not provide for any general tax increase or enact new general taxes in the permanent provisions of the State General Appropriation Act or acts supplemental thereto, and any such general tax increases or new general taxes must be enacted only by separate act passed by a vote of at least two-thirds of the members of each house."
L. Notwithstanding the provisions of Section 12-43-220(d)(3) of the 1976 Code, the deadline for filing for agricultural use value for property owned as of December 31, 1993, is extended to January 15, 1996.
M. This section takes effect upon approval by the Governor./
Renumber sections to conform.
Amend title to conform.
Senator WILSON explained the amendment.
Senator THOMAS raised a Point of Order under the provisions of H. 4239, the Sine Die Adjournment Resolution, that inasmuch as it was 5:00 P.M. the time had come for the Senate to stand adjourned.
The PRESIDENT sustained the Point of Order.
Debate was interrupted by adjournment, Senator WILSON retaining the floor.
On motion of Senator ELLIOTT, with unanimous consent, the appointment of Mr. McDowell as magistrate for Horry County would be confirmed upon receipt of the appointment from the Governor with the requisite forms.
Having received a favorable report from the Dillon County Delegation, the following appointment was confirmed in open session:
Initial Appointment, Dillon County Magistrate, with term to commence April 30, 1994, and to expire April 30, 1998:
Honorable John R. Davis, Post Office Box 306, Latta, S.C. 29565 VICE Robert J. McBryde, Jr.
Having received a favorable report from the York County Delegation, the following appointment was confirmed in open session:
Initial Appointment, York County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:
Mr. W. Thomas Massey, 5667 Chadwick Court, Rock Hill, S.C. 29732 VICE Frederick G. McCrorey
Having received a favorable report from the Fairfield County Delegation, the following appointment was confirmed in open session:
Reappointment, Fairfield County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:
Honorable Ernestine M. Rabb, Route 1, Box 148, Jenkinsville, S.C. 29065
Having received a favorable report from the Anderson County Delegation, the following appointment was confirmed in open session:
Initial Appointment, Anderson County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:
Honorable James A. Cox, 208 Mills Street, West Pelzer, S.C. 29669 VICE John W. Rogers (retired)
Having received a favorable report from the Dorchester County Delegation, the following appointments were confirmed in open session:
Reappointments, Dorchester County Voter Registration Board, with terms to commence March 15, 1994, and to expire March 15, 1996:
Mr. Orion P.D. Canant, 133 Axtell Drive, Summerville, S.C. 29485
Ms. Martha H. Hollis, 113 Pelican Street, Ladson, S.C. 29456
Mr. Harry J. Limehouse, Post Office Box 142, Summerville, S.C. 29484
Mr. Raymond L. Garvin, Post Office Box 657, St. George, S.C. 29477
Initial Appointment, Dorchester County Voter Registration Board, with term to commence March 15, 1994, and to expire March 15, 1996:
At-Large:
Mr. Eric Britt, Apartment C-8, 1225 Boone Hill Road, Summerville, S.C. 29483 VICE Jacqueline K. Knight
Reappointments, Dorchester County Magistrates, with terms to commence April 30, 1995, and to expire April 30, 1999:
Honorable Troy Guerard Knight, Post Office Box 1372, Summerville, S.C. 29484
Honorable Rodney W. Profit, 219 Towhee Drive, Summerville, S.C. 29485
Honorable Victor Glenn Stephens, 127 Bishopville Road, St. George, S.C. 29477
Honorable Charlene C. Snowden, 304 Woodland Drive, Summerville, S.C. 29485
Initial Appointments, Dorchester County Magistrates, with terms to commence April 30, 1995, and to expire April 30, 1999:
Mr. Raymond McMillan, 304 Hudson Road, St. George, S.C. 29477 VICE Cranston Pinckney (retired)
Mr. Larry R. Kennedy, 9 Hummingbird Lane, Summerville, S.C. 29483 VICE Joseph Whitney Cunningham
Having received a favorable report from the Horry County Delegation, the following appointments were confirmed in open session:
Reappointments, Horry County Magistrates, with terms to commence April 30, 1995, and to expire April 30, 1999:
Honorable Rebecca S. Lovelace, 503 Lakewood Avenue, Conway, S.C. 29526
Honorable Tillmond E. Williams, 3880 Tillmond Drive, Conway, S.C. 29526
Honorable Dennis Earl Phipps, 1201 21st Avenue North, Myrtle Beach, S.C. 29577
Initial Appointment, Horry County Magistrate, with term to commence April 30, 1995, and to expire April 30, 1999:
Mr. G. Derek Blanton, 201-L 1356 Glenn's Bay Road, Surfside Beach, S.C. 29575 VICE Carolyn R. Hills
Having received a favorable report from the Spartanburg County Delegation, the following appointments were confirmed in open session:
Reappointments, Spartanburg County Magistrates, with terms to commence April 30, 1995, and to expire April 30, 1999:
Honorable Eber Charles Gowan, Jr., Post Office Box 37, Reidville, S.C. 29375
Honorable Edward H. Overcash, Jr., 166 Gordon Drive, Spartanburg, S.C. 29301
Honorable Kenneth H. Dover, Post Office Box 642, Inman, S.C. 29349
Honorable Joseph T. Petty, Post Office Box 128, Landrum, S.C. 29356
Honorable James B. Paslay, 803 Lucerne Drive, Spartanburg, S.C. 29302
Honorable Robert B. Hall, 151 Oakwood Drive, Woodruff, S.C. 29388
Honorable Georgia V. Anderson, 204 South Fairview Avenue, Spartanburg, S.C. 29302
Honorable James Freeman Ashmore, 302 Five Oaks Drive, Landrum, S.C. 29356
Honorable Vicki Rae M. Smith, 1074 Cross Anchor Road, Woodruff, S.C. 29388
Initial Appointments, Spartanburg County Magistrates, with terms to commence April 30, 1995, and to expire April 30, 1999:
Mr. Harold W. Pryor, 1257 Boiling Springs Road, Spartanburg, S.C. 29303 VICE Larry M. Hutchins
Mr. Larry Madison Hutchins, 767 California Avenue, Spartanburg, S.C. 29303 VICE William Andrew Hughes
Honorable Carolyn B. Waddell, 155 Brewton Road, Moore, S.C. 29369 VICE Rubye K. Calhoun
Honorable Donnie Blackley, 236 St. Matthews Lane, Spartanburg, S.C. 29301 VICE Warren H. Sullivan
Having received a favorable report from the Richland County Delegation, the following appointments were confirmed in open session:
Reappointments, Richland County Magistrates, with terms to commence April 30, 1995, and to expire April 30, 1999:
Honorable Donald Jeffrey Simons, Post Office Box 762, Eastover, S.C. 29044
Honorable Clemon L. Stocker, 135 American Avenue, Hopkins, S.C. 29061
MOTION ADOPTED
On motion of Senator WALDREP, with unanimous consent, the Senate stood adjourned out of respect to the memory of Mr. Jack W. Barnes of Anderson County, S.C.
At 5:00 P.M., on motion of Senator MOORE, the Senate adjourned to meet on Friday, June 2, 1995, for local and uncontested matters which have the unanimous consent of the members of the delegation affected by the legislation, in accordance with the provisions of the Sine Die Resolution, H. 4239.
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