September 9, 1976
Representative Dennis C. McFarland, Chairman
Interim Rules Review Committee
511 N.W. National Bank Bldg.
Sioux Falls, SD 57102
OFFICIAL OPINION NO. 76-84
Repeal of rules without proper notice of intended action makes repeal ineffective
Dear Representative McFarland:
You have requested an official opinion in regard to the following factual situation:
FACTS:
On March 23, 1976, the State Electrical Board gave notice of a hearing to adopt rules. The written notice contained the following statement:
The purpose of such hearing will be to consider for adoption a revision and restatement of rule #20:44:03:01, #20:44:04:02, #20:44:04:03, #20:44:04:04, #20:44:04:07 and all of Chapter 20:44:10, and for the adoption of a new rule #20:44:03:05, experience for Class "B" electrician, of the South Dakota State Electrical Board covering the subjects of wiring certificates. (Emphasis added.)
Following the hearing, chapter 20:44:10 was repealed. In fact, chapter 20:44:10 dealt with the inspection of electrical systems in mobile homes, rather than with wiring certificates.
Based on the above facts, you ask:
QUESTION:
Inasmuch as the notice did not, in fact, notify persons interested in rules relating to mobile homes that the board intended to repeal such rules, is the attempted repeal invalid?
SDCL 1-26-4.1 requires that publication of notices must be in a manner so as to notify persons likely to be affected by such a proposed rule. In my opinion, this provision relates not only to proposing a new rule, but also relates to the repeal of existing rules.
In my opinion, the above-cited notice does not give public notice that rules relating to the inspection of electrical systems in mobile homes will be repealed. Without this public notice being given, it is my opinion that the attempted repeal of rules relating to the inspection of electrical systems in mobile homes was not valid and they are still in effect.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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