May 12, 1980

Ms. Helen V. Wegner 
Secretary 
Department of Commerce 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 80-34

Inspection Fees for Heavy Scales

Dear Secretary Wegner:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

The heavy scale program has been collecting fees for the inspection of heavy scales under the authority of SDCL 37-22-10 since 1939.  However, in the 1980 Legislative Session, the Legislature passed House Bill 1146 which allows fees to be charged according to a maximum schedule.  The bill states further, 'such fees shall be promulgated by the Secretary of Commerce pursuant to Chapter 1-26.'  SDCL 1-26-4.4 allows the promulgation of rules under newly gained statutory authority 90 days after the adjournment of the Legislature.  Because this occurred March 12, 1980, no rule-making procedures may be commenced prior to June 10, 1980. With the requirement of service, notice, and filing, the earliest date rules could become effective would be July 24, 1980. Therefore, it appears a gap will occur between the effect of the current law and the earliest possible effective date of any rules promulgated under the new law. 

If there is no fee in effect during the month of July, there would be no interruption of the function of the division.  However, there would be a loss to the state general fund of approximately $5,000.  In addition, there could be considerable confusion and hard feelings by those who were inspected in late June or early August, and charged a fee, and those inspected during July  at no charge.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Can the Division of Commercial Inspection collect fees for the inspection of heavy scales after June 30, 1980, and before rules setting those fees in accordance with House Bill 1146 have been promulgated? 

2.  If your answer to the first question is in the negative, is this situation appropriate for the instituting of emergency rules to serve until permanent rules can be adopted?

IN RE QUESTION NO. 1:

In view of the recent legislative changes made to this program, it appears to me that the only option which is really available is to have your department propose emergency rules which would enable the program to have its house in order as of the effective date of this new legislation.  Very frankly, this ninety day provision of SDCL 1-26-4.4 is rather ridiculous and creates numerous problems for state agencies such as yours in responding to the demands of new legislation.

IN RE QUESTION NO. 2:

It has been our policy in the past and it continues to be our policy that agencies in this position are properly within the sphere of needed emergency rules.  Even though the subject matter of such rules might not necessarily bring the State to its knees if it is not promulgated right away, we believe in the interests of good government that agencies in this position should be able to pass emergency rules to get their statute programs on line without waiting sixty days for the normal rule-making process.

Respectfully submitted,

Mark V. Meierhenry
Attorney General