STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 19, 1975

Mr. Thomas R. Vickerman
Code Counsel
South Dakota Code Commission
State Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-162

South Dakota State Sign Manual

Dear Mr. Vickerman:

You have asked for an official Attorney General's opinion on the following factual situation:

The State Department of Transportation has adopted a South Dakota State Sign Manual and adopted, by reference, a federal sign manual which describes with precision, the shape, color, size and location, among other things, of destination, mileage and street name signs. Representatives from the department have indicated to the interim rules review committee that the manuals are the official policy of the Department of Transportation in regard to placing signs on the state's highways and that variations from the manuals will not be permitted.

In connection with the above described factual situation, you have asked the following question:

Does the material contained in the state and federal sign manuals, constitute a rule as defined in SDCL 1-26-1, so as to require the material to be adopted through the Administrative Procedures Act?

Subdivision (7) of SDCL 1-26-1 defines a rule as "each agency statement of general applicability that implements, interprets, or prescribes law, policy, procedure, or practice requirements of any agency .... "

Based upon your factual situation, and upon the copies of the manuals which you have supplied to this office, it appears that the Department of Transportation is implementing a policy of general applicability with regard to highway signs. The fact that the department refuses to grant exceptions to this policy further justifies the conclusion that these manuals do fall within the statutory definition of a rule.

Therefore, it is my conclusion that since the department's policy is a rule, it must be passed in accordance with the dictates of the Administrative Procedures Act. I note, with interest, that the Legislature has amended subdivision (1) of SDCL 1-26-1 which defines those agencies which are subject to the Administrative Procedures Act. Prior to July 1 of this year, before an agency was subject to the Administrative Procedures Act, it had to be specifically "authorized by law to make rules." However, after July 1, any agency which is "vested with the authority to exercise any portion of the state's sovereignty" falls within the purview of the Administrative Procedures Act.

Respectfully submitted,

William Janklow
Attorney General

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