Step by Step Guide for Regulations

SHELLY BEZANSON KELLYOFFICE OF GENERAL COUNSEL

SEPTEMBER 5, 2012

Basics

• State Board must approve regulations– Two reading process

• General Assembly approval (or inaction) required for most regulations– Federal regulations do not have to be submitted to

General Assembly

• Follow the Administrative Procedures Act– To allow adequate notice

• Deadlines are absolute!

Starting Point

• Drafting Notice– This is to inform the public that the agency is considering a

regulatory change– Does not obligate agency to take action

• Send to Noelle Redd and she will have it published in the State Register

• When?– As early in the process as possible. To be published in the

current month’s State Register the drafting notice needs to be submitted to Noelle in final form by the 2nd Friday of the month

Amendments

• Use the “official” version of the existing regulation from the SC General Assembly website. Check with Noelle Redd to make sure you are working from the correct version.

• Do not use track changes mode in Word to make your changes

• Use underline and strikethrough from the formatting tools in Word

• Follow the Word Processing Standards found on page 22 of the Promulgation, Preparation, and Publication of Regulations manual

New Regulations

• Follow the Word Processing Standards found on page 22 of the Promulgation, Preparation, and Publication of Regulations manual.

Approval Process—in a nutshell

• SCDE internal approval• SBE approval (2 readings)• General Assembly approval

SCDE approval

• Once the regulation has been amended/drafted by the office, it must be approved by Jay W. Ragley and Shelly Kelly before it is placed on the State Board Agenda.– Prepare the regulation like any other State Board

action item

Committee Agenda

• Following the timelines for submittal of items for a committee agenda, transmit the synopsis and the regulation to the administrative assistant responsible for the committee that will review the regulation.

Transmittal for Committee Agenda

• What’s required?– Electronic copy (Word) of the synopsis and

regulation– Format the regulation in the same manner as

required for publishing in the State Register by using the word processing standards on p. 22 of the Manual

Committee Action

• Like any other action item, the regulation must be approved in committee

• Presentation by staff– Staff must present the regulation to the

committee– Explain/answer questions

Changes by Committee

• Take careful notes on changes made by the committee

• Edit the document to include the committee’s changes – Need to have changes ready for the Board

meeting (that same day!)– Be prepared to point out the changes made by the

committee if asked at the full Board meeting

Review by State Board

• The committee chair will move that the State Board approve the regulation for first reading

• You may or may not be asked to speak before the State Board (it depends on the will of the Board)

• Even if you don’t have to make a presentation, be prepared to answer questions

• Make sure you or the appropriate staff are at the Board meeting to answer questions

Changes by State Board

• The State Board may change the regulation that comes out of committee

• They will do this through an amendment • If amendments are made, take careful notes

because you will be responsible for making the necessary changes to the regulation

Transmittal of Approved Regulation

• E-mail Noelle Redd the regulation that was approved by the State Board – Including all changes that the State Board made

• You do not e-mail her the State Board synopsis

• Noelle Redd will transmit the regulation for publication in the State Register

Verification

• You will be asked to verify that the language in the Proposed Regulation is accurate.

• Legislative Council will send a “clean” copy of the regulation, with all changes made, to you to verify.

• Read the entire regulation to make sure it is correct.

Second Reading

• There will usually be a month between first and second reading

• For example:– First reading in October– Second reading in December

Second Reading

• Takes place at the State Board meeting—not at a committee meeting

• Takes place during the “Public Hearing” section of the agenda

The State Board Synopsis

• You need to prepare a synopsis– It will be similar but not identical to the first

reading synopsis– If you are recommending changes between first

and second reading, put that in the synopsis.

Where to find the document

• Legislative Council recommends that you use the document that was published for presenting the document to the State Board for second reading.

• Go to the following website and search by document number– http://www.scstatehouse.gov/regnsrch.php– Copy and paste document into a Word file

• Work from this version

The regulation

• The document that you attach must have the same content that was approved on first reading.

• However, if you want to suggest changes you may indicate changes to the regulation in italics or by highlighting in yellow but the synopsis must be clear and explain that SCDE recommended changes are included

• If there are significant changes, you may submit it as a separate document

State Board Agenda

• The synopsis and attachments must be transmitted electronically to Cindy Clark to be included on the Board agenda.

Public Comments

• If you received written comments during the comment period, you must include those comments as an attachment to the Board item. – I recommend scanning the comments and creating a pdf file

with all the comments included.

– The Board generally does not want a summary of comments but you should be ready to discuss the comments.

Public Hearing

• This takes place during the full Board meeting• Generally, the SCDE staff will make a brief

statement regarding the regulation• The Board Chair will allow the public to speak

on the regulation– People wishing to speak must sign in– They are usually limited to 5 minutes or less

Public Hearing

• After the public has a chance to speak, SCDE staff may be asked to answer questions or respond to the comments.

Approval

• Approval of the regulation requires a motion from a Board member

• They can move to approve “as submitted” (meaning they accept the SCDE changes) or

• They can move to approve “as adopted in first reading”

• Members may amend the regulation prior to final vote

Final Action

• After the Board takes final action, the office initiating the regulation must transmit a copy to Noelle Redd for submittal to Legislative Council.– Remember, you do not send the State Board Synopsis to Noelle

• The final version must include all changes approved on second reading, if any.

• The office will need to sign a verification that the regulation is correct.

General Assembly Approval

• The regulation will be submitted to the General Assembly

• 120-day automatic approval• Joint resolution to approve• Published in the State Register

General Assembly Review

• Regulation will be referred to committee after received by the President of the Senate and the Speaker of the House.

• General Assembly has 120 calendar days to review the regulation

General Assembly Review

• If there is no action on the regulation within 60 days of the committee receiving the regulation, the regulation must be p laced on the agenda of the full committee at the next scheduled full committee meeting.

General Assembly Approval

• Joint resolution to approve or disapprove– Usually introduced by committee but it can be

introduced by any member• Upon introduction of a joint resolution disapproving

a regulation, the 120 day period is tolled until a negative vote is take on the joint resolution.

• If no joint resolution is introduced to disapprove, the regulation is approved on the 120 day and is effective upon publication.

Withdrawal

• The agency may withdraw a regulation for any reason (State Board)– May be resubmitted if the resubmitted regulation

contains no substantive changes

Amendments

• The legislative committee is not authorized to amend a regulation

• However, the committee may part of a regulation and delete a clearly separable portion in some cases.

Amendments

• If a committee determines that it cannot approve a regulation as submitted, it may notify the agency with recommendations of what would be necessary to obtain committee approval.

Agency Actions

• If the agency receives a letter requesting changes necessary for approval, it may:– Withdraw the regulating and resubmit it with the

recommended changes. • This action must be done by the State Board

– Withdraw the regulation permanently– Take no action

Committee Requests

• These request must be handled through the Office of Legislative and Public Affairs

• IF LPA notifies you that a change is required for approval, it is the program office’s responsibility to make the change but to coordinate that through LPA.

• The request must be presented to and approved by the State Board at the full board meeting

• Once the State Board takes action, send the revised regulation to Noelle via email and she will transmit it to the General Assembly.