April 29, 1975
Mr. Emil Mueller, Counsel
Public Utilities Commission
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-78
Senate Bill 216
Dear Mr. Mueller:
You have requested an official opinion based on the following factual situation:
Senate Bill 216 passed by the 1975 session of the Legislature and signed by the Governor provides for the establishment of a special hearing fund to defray expenses of hearings involving matters relating to telephones, electricity or natural gas. Section 4 of Senate Bill 216 reads as follows:
On July 1 of each year, each company shall file with the South Dakota public utilities commission, on forms prescribed by the South Dakota public utilities commission, the amount of its gross receipts derived from customers of it within the state of South Dakota during the preceding calendar year. Such report shall be sworn to and verified by an officer of the company.
Based on this situation you ask:
My question is whether the Commission can prescribe the form without the necessity of following all of the detailed steps required to establish rules and regulations under the Administrative Procedure Act.
The question you ask raises the issue of whether or not "Forms" under Senate Bill 216 are in effect a "Rule" within the scope of SDCL 1-26. SDCL 1-26-1 (7) defines rule as follows:
"Rule," each agency statement of general applicability that implements, interprets, or prescribes law, policy, procedure, or practice requirements of any agency. The term includes the amendment or repeal of a prior rule, but does not include:
(a) statements concerning only the internal management of an agency and not affecting private rights or procedure available to the public, or
(b) declaratory rules issued pursuant to § 1-26-15:
It is my opinion that the "Form" contemplated by Senate Bill 216 is in effect a rule and that it must be promulgated under SDCL 1-26 procedures. The form referred to in Senate Bill 216 will in effect determine what elements go into the formula of gross receipts used by the Public Utilities Commission in their determination of allowable utiltity rates. If such elements are not prescribed by existing statute or rule, such a determination is clearly in the scope of the definition of rule cited above.
If the elements of "gross receipts" were prescribed by statute or rule, it seems clear to me that a form that merely puts these requirements into a uniform reporting sheet with nonsubstantive additions such as signatures and addresses is not a rule within the scope of the Administrative Procedures Act.
If however, the elements of "gross receipts" are not set forth in existing statutes or rules, the prescribing of the form under Senate Bill No. 216 which goes beyond the substantive authorization of the bill is in essence the making of a rule, i.e. does "gross receipt" mean actual cash in hand or financial obligations accrued and owing. In this regard, for example, the statute is not clear and the prescribing of the form involves substantive policy making which is covered by SDCL 1-26.
I am aware of considerable concern and confusion over just how far the Administrative Procedures Act applies into the matter of prescribing the contents of forms. Some departments of state government prescribe numerous forms that are seemingly so insignificant and innocuous that they could hardly be called a "Rule." If however such a form requires or prescribes specific substantive matters which are not prescribed in existing statutes or rules, then the form is, in my opinion, a rule. The determination of what matters are "substantive" or "are not prescribed by existing statutes or Rule" is something that will necessarily be done on a case by case basis; I do not intend to imply that all "Forms" are in essence rules. Each form must be reviewed on its individual legal characteristics and circumstances.
This opinion is not intended to imply in any way that the actual form itself is ever something that should be made a rule. The point to be emphasized is that the form be based on specifics found in either statute or rule. Making the actual form a rule would in my view be an unnecessarily cumbersome procedure.
I am also aware of the fact that some authority exists in other jurisdictions for excluding "Forms" from the scope of the definition of rules subject to Administrative Procedures Act procedures, Alaska Stat. 44 4.62, 690 (2); Cal Gov. Code 11371 (6). It is my view, however, that if such an exclusion is to be made in South Dakota, the Legislature or the Courts, not the Attorney General, will have to make it.
The answer to your question, therefore, is NO!
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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