§ 1-23-110 — Procedures for publication of notice of proposed promulgation of regulations; public participation; contest of regulation for procedural defects.

South Carolina § 1-23-110

• Jurisdiction: South Carolina
• Title 1: ADMINISTRATION OF THE GOVERNMENT
• Ch. 23: STATE AGENCY RULE MAKING AND ADJUDICATION OF CONTESTED CASES

Text

(A) Before the promulgation, amendment, or repeal of a regulation, an agency shall: (1) give notice of a drafting period by publication of a notice in the State Register. The notice must include: (a) the address to which interested persons may submit written comments during the initial drafting period before the regulations are submitted as proposed; (b) a synopsis of what the agency plans to draft; (c) the agency's statutory authority for promulgating the regulation; (2) submit to the office, no later than the date the notice required in item (3) is published in the State Register, a preliminary assessment report prepared in accordance with Section 1-23-115 on regulations having a substantial economic impact; (3) give notice of a public hearing at which the agency will receive data, views, or arguments, orally and in writing, from interested persons on proposed regulations by publication of a notice in the State Register if requested by twenty-five persons, by a governmental subdivision or agency, or by an association having not less than twenty-five members. The notice must include: (a) the address to which written comments must be sent and the time period of not less than thirty days for submitting these comments; (b) the date, time, and place of the public hearing which must not be held sooner than thirty days from the date the notice is published in the State Register; (c) a narrative preamble and the text of the proposed regulation. The preamble shall include a section-by-section discussion of the proposed regulation and a justification for any provision not required to maintain compliance with federal law including, but not limited to, grant programs; (d) the statutory authority for its promulgation; (e) a preliminary fiscal impact statement prepared by the agency reflecting estimates of costs to be incurred by the State and its political subdivisions in complying with the proposed regulation. A preliminary fiscal impact statement is not required for those regulations which are not subject to General Assembly review under Section 1-23-120; (f) a summary of the preliminary assessment report submitted by the agency to the office and notice that copies of the preliminary report are available from the agency. The agency may charge a reasonable fee to cover the costs associated with this distribution requirement. A regulation that does not require an assessment report because it does not have a substantial economic impact, must include a statement to that effect. A regulation exempt from filing an assessment report pursuant to Section 1-23-115(E) must include an explanation of the exemption; (g) statement of the need and reasonableness of the regulation as determined by the agency based on an analysis of the factors listed in Section 1-23-115(C)(1) through (11). At no time is an agency required to include items (4) through (8) in the reasonableness and need determination. However, comments related to items (4) through (8) received by the agency during the public comment periods must be made part of the official record of the proposed regulations. (h) the location where a person may obtain from the agency a copy of the detailed statement of rationale as required by this item. For new regulations and significant amendments to existing regulations, an agency shall prepare and make available to the public upon request a detailed statement of rationale which shall state the basis for the regulation, including the scientific or technical basis, if any, and shall identify any studies, reports, policies, or statements of professional judgment or administrative need relied upon in developing the regulation. This subitem does not apply to regulations which are not subject to General Assembly review under Section 1-23-120. (B) Notices required by this section must be mailed by the promulgating agency to all persons who have made timely requests of the agency for advance notice of proposed promulgation of regulations. (C)(1) The agency shall consider fully all written and oral submissions respecting the proposed regulation. (2) Following the public hearing and consideration of all submissions, an agency must not submit a regulation to the General Assembly for review if the regulation contains a substantive change in the content of regulation as proposed pursuant to subsection (A)(3) and the substantive change was not raised, considered, or discussed by public comment received pursuant to this section. The agency shall refile such a regulation for publication in the State Register as a proposed regulation pursuant to subsection (A)(3). (D) A proceeding to contest a regulation on the ground of noncompliance with the procedural requirements of this section must be commenced within one year from the effective date of the regulation.

Legislative History

HISTORY: 1977 Act No. 176, Art. I, SECTION 11; 1980 Act No. 442, SECTION 1; 1985 Act No. 190, SECTION 2; 1988 Act No. 605, SECTION 1; 1989 Act No. 91, SECTION 1; 1992 Act No. 507, SECTION 3; 1993 Act No. 181, SECTION 11; 1996 Act No. 411, SECTIONS 2, 3; 2002 Act No. 231, SECTION 1; 2007 Act. No. 104, SECTION 1, eff July 1, 2008. Code Commissioner's Note At the direction of the Code Commissioner, references in this section to the offices of the former State Budget and Control Board, Office of the Governor, or other agencies, were changed to reflect the transfer of them to the Department of Administration or other entities, pursuant to the directive of the South Carolina Restructuring Act, 2014 Act No. 121, SECTION 5(D)(1). Editor's Note 2007 Act No. 104, SECTION 5, provides as follows: "This act takes effect July 1, 2008, and applies to regulations for which a notice of a public hearing has been published in the State Register, in accordance with Section 1-23-110(A)(3) of the 1976 Code, after June 30, 2008; all other regulations under General Assembly review on this act's effective date must be processed and reviewed in accordance with the law in effect on June 30, 2008." Effect of Amendment The 2007 amendment designated paragraph (C)(1) and added paragraph (C)(2) relating to regulations containing substantive changes.