Must a South Carolina agency reopen public comment after a substantive regulation change?

Plain-English summary

A South Carolina senator asked whether an agency could finalize regulations containing substantive changes that had not been raised or discussed during public comment. In February 2002, the AG said the Administrative Procedures Act required the agency to refile and re-notice such a proposal and give the public a new opportunity to comment. The question referred to proposed health-agency swine regulations, but the letter stated a general rule rather than deciding the details of every revision in that document.

The AG distinguished ordinary modifications based on public comments from a substantive change the public had no chance to address. He described “substantive” in context as a change that could create, define or regulate rights or obligations, even if it was less than a complete rewrite.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

State agencies

The opinion said an agency had to process a changed proposal anew if a substantive revision had not been raised, considered or discussed by public comment. Notice and opportunity to be heard were central to the analysis.

Commenters and affected parties

The letter said the public should have an opportunity to comment on a substantive change that was absent from the earlier noticed proposal and discussion.

Common questions

Could an agency make a substantive change after comment closed without new notice? A: The AG said no if the change was not raised, considered or discussed in public comment.

Did every edit require refiling?
A: The opinion addressed substantive changes and said their characterization depended on context.

Background and statutory framework

Section 1-23-110 required notice of proposed regulations and an opportunity for comment. Section 1-23-125(E) addressed substantive changes not aired during comment and required renewed processing. The AG cited Leventis v. DHEC for adequate public notice and balanced participation.

Citations and references

• Section 1-23-110: rulemaking notice and comment.
• Section 1-23-125(E): refiling requirement for the described substantive changes.
• Leventis v. DHEC: notice-and-comment decision cited by the AG.

Official title

Concerning the application of the Administrative Procedures Act as it related to proposed regulations of a state agency. Specifically, whether regulations promulgated by a state agency containing substantive changes that were not “considered or discussed by pubic comment,” are required to be “refilled” and “processed as a new regulation.”

Requester

The Honorable Phil P. Leventis, Senator, District No. 35

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-7-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02feb7leventis.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

February 7, 2002

The Honorable Phil P. Leventis
Senator, District No. 35
601 Gressette Building
Columbia, South Carolina 29202
Dear Senator Leventis:

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You have requested an opinion concerning the application of the Administrative Procedures Act as it relates to proposed regulations of a state agency. Your specific question is whether regulations promulgated by a state agency (see, South Carolina Department of Health and Environmental Control (DHEC) "Swine Regulations" - Document No. 2646) containing substantive changes that were not "considered or discussed by public comment," are required to be "refiled" and "processed as a new regulation." It is our opinion that South Carolina's Administrative Procedures Act requires that all substantive changes in a state agency's regulations not receiving public input must be refiled, re-noticed and public comment reheard before becoming valid. The Administrative Procedures Act was enacted to insure that before agency regulations become law, state agencies must follow proper procedure by giving the public notice and an opportunity to be heard. Ifan agency desires to make substantive changes in regulations, it must give the public notice of those changes and give citizens the chance to voice opinions and concerns regarding those changes. Specifically, the AP A's requirements are that there must be a publication of notice of the proposed regulations and that the public be given an opportunity for comment. Section 1-23-110. The AP A's mandated procedure also specifies that if the final promulgated regulation contains a "substantive change," from the regulations as originally proposed and published, and the substantive change was "not raised, considered or discussed by public comment," the regulation must be refiled and re-proposed as a new regulation. Section 1-23-125(E). Of course, the term "substantive change" may be only defined in its context. However, such a change is generally understood to be one that is essential and includes something less than a wholesale alteration or deviation. Typically, courts view a "substantive change" as one which "creates, defines or regulates rights or obligations." City of Madison v. Town of Madison, 127 Wis.2d 96, 102, 377 N.W.2d 221 , 224 (Ct. App. 1985); Ores v. Kennedy, 218 Ill.App.3d 866, 578 N.E.2d 1139, 161 Ill.Dec. 493 (1991). If such a change is made without the opportunity for public REMBERT

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POST OFFICE Box 11549

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COLUMBIA,

s.c 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

The Honorable Phil P. Leventis
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February 7, 2002

comment, the letter, as well as the spirit of the Administrative Procedures Act is violated. Leventis v. DHEC, 340 S.C. 118, 530 S.E.2d 643 (Ct. App. 2000) ["While DHEC may modify its proposed regulations based on comments received, the regulations subject to comment must be properly noticed to afford balanced participation and an adequate opportunity to submit comments."] In conclusion, the Administrative Procedures Act requires that where a substantive change in a proposed regulation is made after the time period provided for public comment, and the change was not raised, considered or discussed, that regulation must be refiled by the promulgating agency and processed anew.

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Sincerely,

Charlie Condon
Attorney General

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