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Administrative Procedure Act – South Dakota

The South Dakota Administrative Procedures Act is found in Title 1, chapter 1-26 of South Dakota Codified Laws.  As per S.D. Codified Laws § 1-26-2, each agency should make available for public inspection all rules, final orders, decisions, opinions, intra-agency memoranda, together with all other materials, written statements of policy or interpretations formulated, adopted, or used by the agency in the discharge of its functions.  S.D. Codified Laws § 1-26-2.1 provides that when submitting any proposed rule having a direct impact on small business, an agency should prepare a small business impact statement.

According to S.D. Codified Laws § 1-26-4, when an agency adopt, amend, or repeal a permanent rule, agency should serve a copy of a proposed rule on the departmental secretary, bureau commissioner, public utilities commissioner, or constitutional officer for written approval to proceed.  After receiving the written approval of the secretary, commissioner, or officer to proceed, the agency should serve the director with a copy of: the proposed rules along with any publication, the fiscal note, the impact statement on small business, and the notice of hearing.  The copy of these documents should be served at least twenty days before the public hearing to adopt the proposed rules.

After reviewing the proposed rule, the director should advise the agency of any recommended corrections to the proposed rule.  The agency should afford all interested persons reasonable opportunity to submit amendments, data, opinions, or arguments at a public hearing held to adopt the rule.  The agency should serve the minutes of the hearing along with other documents and a corrected copy of the rules on the members of the Interim Rules Review Committee at least five days before the agency appears before the committee to present the rules.

As per S.D. Codified Laws § 1-26-6, the adoption, amendment, or repeal of a rule is complete when:

  • all the requirements are completed,
  • it is signed by a majority of the members of the multi-member body or by the officer having the authority to adopt it,
  • it is signed by the director,
  • a copy is filed with the director, for use in preparation of copy for the Administrative Rules of South Dakota,
  • the rule and a certificate is filed with the secretary of state, and
  • the agency has appeared and presented the proposed rule to the Interim Rules Review Committee.

S.D. Codified Laws § 1-26-7 provides that each agency should make copies of all records, documents, and exhibits available to members of the Legislature upon request.  Further, the secretary of state should keep a copy of the agency’s current rules, which should be open to public inspection. As per S.D. Codified Laws § 1-26-8, each rule is effective twenty days after filing with the secretary of state.

According to S.D. Codified Laws § 1-26-13, an interested person may petition an agency requesting the promulgation, amendment, or repeal of a rule.  Within thirty days after submission of a petition, the agency either may deny the petition in writing or initiate rule-making proceedings.  As per S.D. Codified Laws § 1-26-15, each agency should provide rules for filing and prompt disposition of petitions for declaratory rulings as to the applicability of any statutory provision or of any rule or order of the agency.

S.D. Codified Laws § 1-26-16 provides that in a contested case, all parties should be afforded an opportunity for hearing after reasonable notice.  As per S.D. Codified Laws § 1-26-18, opportunity should be afforded to all parties to respond and present evidence on issues of fact and argument on issues of law or policy.  A party to a contested case proceeding may appear in person or by counsel.  Further, a party may have reasonable opportunity to inspect all documentary evidence, may examine and cross-examine witnesses, may present evidence in support of the party’s interest, and may have subpoenas issued to compel attendance of witnesses and production of evidence in the party’s behalf.

According to S.D. Codified Laws § 1-26-25, a final decision or order adverse to a party in a contested case should be in writing or stated in the record.  It should include findings of fact and conclusions of law, separately stated.

S.D. Codified Laws § 1-26-30 provides that a person who has exhausted all administrative remedies available within any agency or a party who is aggrieved by a final decision in a contested case is entitled to judicial review.  As per S.D. Codified Laws § 1-26-30.2, an appeal is allowed in the circuit court to any party in a contested case from a final decision, ruling or action of an agency.  According to S.D. Codified Laws § 1-26-37, an aggrieved party may obtain a review of any final judgment of the circuit court by appeal to the Supreme Court.

Inside Administrative Procedure Act – South Dakota