1-26-6. Completion of adoption of rule or change in rules.
The adoption, amendment, or repeal of a rule is complete when:
(1) All the requirements of § 1-26-4 have been completed or, if the rule is an emergency rule, three days have passed since all the requirements of § 1-26-5 have been complied with;
(2) It has been signed by a majority of the members of the multi-member body or by the officer having the authority to adopt it;
(3) It has been signed by the director;
(4) A copy has been filed with the director, in a form prescribed by the director to show amendments, deletions, and other changes to existing rules, for use in preparation of copy for the Administrative Rules of South Dakota;
(5) The rule and a certificate have been filed with the secretary of state. The certificate shall affirm that the rule filed is a true and correct copy of the rule as adopted and that the agency has complied with § 1-26-4 or 1-26-5, and with this section; and
(6) For a permanent rule, the agency has appeared and presented the proposed rule to the Interim Rules Review Committee.
Certificates required by this section shall be affidavits executed, under oath, by the officers authorized by statute to promulgate the rule. If a rule is promulgated by a multi-member body, the certificate shall be signed by its presiding officer.
Emergency rules are provisionally effective immediately after being filed. Notwithstanding § 15-6-6(a), all other rules are provisionally effective on the twentieth day after being filed, not counting the day of filing. In either case a later effective date may be specified as part of the rules being filed. A rule which is not yet effective or a provisionally effective rule may be suspended in the manner specified by § 1-26-38 any time prior to the first day of July of the year following the year in which it became, or would have become, effective. The rule's provisional status ends at that time, and the rule may not thereafter be suspended by the rules committee. Unless suspended, a provisionally effective rule shall be enforced by the agency and the courts as if it were not so conditioned.
No rule promulgated after June 30, 1975, is valid unless adopted in compliance with § 1-26-4 or 1-26-5, and this section and copies of the rule are made available to the public upon request, by the agency.
Source: SDC 1939, §§ 55.1203, 65.0106; SL 1966, ch 159, §§ 3, 4 (1); SDCL, § 1-26-7; SL 1972, ch 8, §§ 7, 10, 12; SDCL Supp, § 1-26-6.4; SL 1973, ch 9, § 1; SL 1974, ch 16, §§ 5, 7; SL 1975, ch 16, § 12; SL 1976, ch 15, § 4; SL 1977, ch 13, § 7; SL 1978, ch 13, § 4; SL 1986, ch 20, § 6; SL 1989, ch 16, § 7; SL 1998, ch 9, § 2; SL 2000, ch 4, § 2; SL 2004, ch 22, § 1.
1-26-6.1. Restriction on incorporation of statutory material.
An agency may refer to statute but may not incorporate statutory provisions, other than definitions, in their rules nor publish or distribute statutory material in conjunction with their rules unless required by law or expressly authorized by the Code Commission pursuant to § 2-16-8.1.
Source: SL 1972, ch 8, § 8; SL 1984, ch 10, § 1; SL 1995, ch 14, § 3.
1-26-6.2. Uniform style for rules--Required contents.
The director shall prescribe a uniform style in which rules shall be prepared and the standard form to be used in filing rules pursuant to this chapter. Such form shall contain a provision for a reference to be made by the agency for each rule proposed by it, citing its general authority to promulgate rules and then refer to the section, subdivision, or subsection of statute which the rule is intended to implement, and direct the agency to identify prior rules amended or repealed.
Source: SDC 1939, § 65.0106, 2nd par; repealed SL 1966, ch 159, § 19; re-enacted SL 1972, ch 8, § 9; SL 1989, ch 16, § 8.
1-26-6.3. Notice that rules do not conform--Redrafting and filing required.
The director may notify any agency whose rules are not in the proper style and form. A copy of this notice shall be filed with the secretary of state. One hundred eighty days after an agency receives such notification, the rules of that agency shall be of no further force and effect unless redrafted in the prescribed style and form and filed with the secretary of state and the director.
Source: SL 1972, ch 8, § 9; SL 1989, ch 16, § 9; SL 2009, ch 9, § 5.
1-26-6.5. Review by director--Notice to agency of need for change.
The director shall review each rule for compliance with the requirements for form, style, and clarity. The director shall review each rule for legality. The review for legality is a determination that the rule is authorized by the standards provided in the statutes cited by the agency to promulgate the rule. The director shall review the statement of reasons that the emergency procedure is necessary. If the director finds need for change, the director shall make the requirements known in writing to the agency prior to the hearing or within three days in the case of emergency rules.
Source: SL 1972, ch 8, § 11; SL 1973, ch 9, § 2; SL 1974, ch 16, § 6; SL 1975, ch 16, § 18; SL 1986, ch 20, § 7; SL 1989, ch 16, § 10; SL 1990, ch 20, § 2; SL 2009, ch 9, § 6.
1-26-6.6. Incorporation by reference to generally available materials--Description--Reference note--Identification of agency and rule.
An agency may adopt other comprehensive regulations as its own by making reference to them in a rule, but only when the comprehensive regulations are published by an organization which is not part of the state government and only when the publication is generally available to the public at a reasonable cost. A rule which incorporates material by reference shall describe the exact section or portion of the publication which is being incorporated. Immediately following a rule which incorporates published material by reference, other than material contained in the code of federal regulations, the federal register, the United States code or the United States statutes at large, the agency shall place a reference note which identifies the publication by its title, date of publication, or enactment and author, and which states where the publication may be obtained and its cost, if any. A statement shall be attached to the face of the publication which shall state the agency's name, the section number of the rule which incorporates the material within, and the date the rule was served pursuant to § 1-26-4 or 1-26-5 or filed pursuant to § 1-26-6.
Source: SL 1974, ch 16, § 11; SL 1975, ch 16, § 19.
1-26-6.7. Procedure for amendment, suspension or repeal of rules.
Once a rule has been adopted, it may not be amended, repealed, or suspended except by compliance with § 1-26-4 or 1-26-5, and with § 1-26-6, even if it has not taken effect.
Source: SL 1975, ch 16, § 16.
1-26-6.8. Rules unenforceable until properly adopted.
No agency rule may be enforced by the courts of this state until it has been adopted in conformance with the procedures set forth in this chapter.
Source: SL 1977, ch 13, § 8.
1-26-6.9. Licensing board or commission fees--Criteria and limitation.
If a professional or occupational licensing board or commission is authorized in statute to establish fees by rule and no maximum fee limit is specified, the fees shall be reasonable and necessary to provide enough money to meet the budgetary needs of the licensing board or commission for such things as: per diem, travel expenses, office expense, salaries and benefits, utilities, supplies, testing, licensing, inspections, disciplinary actions, and legal fees. However, the total amount of increase in the fees imposed by a licensing board or commission may not exceed the previous year's budget by more than twenty percent.
Source: SL 1986, ch 21.
1-26-6.10. Restriction of licensee's right or privilege to carry or possess pistol prohibited.
No state agency may adopt or promulgate any rule that restricts any right or privilege to carry or possess a pistol in contravention to authority being exercised in accordance with being licensed to carry a concealed pistol pursuant to chapter 23-7.
Source: SL 2006, ch 5, § 1.