Did South Carolina DNR have to use the Administrative Procedures Act to make special boating rules for local waters?

Plain-English summary

The Attorney General concluded that South Carolina's Department of Natural Resources could make “special rules and regulations” for vessel operation in local waters without promulgating them under the Administrative Procedures Act when those rules lacked general statewide applicability. It relied on the statutory definition of a regulation as a statement of general public applicability and on the legislature's choice of the word “special.”

The opinion also placed a limit on this route. A political subdivision applying for a special boating rule had to state the unique circumstances that made it necessary or appropriate. DNR's consideration was to rest on a finding of those circumstances, rather than a simple approval of a request.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did every local boating rule need statewide rulemaking review? A: The opinion said no for the special rules contemplated by the boating statute when their scope was local rather than generally statewide.

Q: Could a town get a special boating rule just by asking DNR? A: The opinion said a formal application had to explain the special and unique circumstances, and DNR had to consider whether those circumstances existed.

Q: Why did the Attorney General distinguish these rules from ordinary regulations? A: The opinion read the Administrative Procedures Act's definition as requiring general public applicability, which it found absent from a rule tailored to waters within a political subdivision.

Background and statutory framework

S.C. Code Ann. § 50-21-30 authorized political subdivisions to apply for special vessel-operation rules after public notice and authorized DNR to make such rules. The requester asked whether the Act's definition of “regulation” in S.C. Code Ann. § 1-23-10(4) triggered legislative and public review. The Attorney General concluded that the locally limited special rules did not require that promulgation process.

Citations and references

The opinion's analysis centered on S.C. Code Ann. § 50-21-30 and S.C. Code Ann. § 1-23-10(4), quoted in the original text below.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-13-2010-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/mabry-b-s-jr-os-9133-9-13-10-special-rules-and-regulations.pdf

Original opinion text

H ENRY M CM ASTER
Arl'ORNEY G ENERAL

September 13, 2010

Buford S. Mabry, Jr., Chief Counsel
SC Department of Natural Resources
P. 0. Box 167
Columbia, South Carolina 29202
Dear Mr. Mabry:
You have raised a question regarding the interpretation of S.C. Code Ann. § 50-21-30 which states: (1) The provisions of Title 50 and other applicable laws ofthis State shall govern the operation, equipment, titling, numbering, and all other matters relating thereto for watercraft and water devices using or held for use on the waters of this State; but nothing in this chapter may be construed to prevent the adoption of any ordinance or local law relating to operation and equipment of watercraft; provided, that the ordinances or local laws shall be operative only so long as and to the extent that they are identical to provisions of this chapter, amendments thereto, or regulations issued thereunder. (2) Any subdivision of this State may, at any time, but only after three days' public notice make formal application to the department for special rules and regulations with reference to the operation of vessels on any waters within its territorial limits and shall set forth therein the reasons which make such special rules and regulations necessary or appropriate. (3) The department is hereby authorized to make special rules and regulations with reference to the operation of vessels on waters within the territorial limits of this State. (emphasis added).
·

REMBERT

c. DENNIS BUILDING • POST O FFICE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Mr. Mabry
Page2
September 13, 2010

You particularly questioned the reference to "special rules and regulations" as set forth in subsections (2) and (3) and whether such "special rules and regulations" come within the term "regulation" as defined by S.C. Code Ann. § 1-23-10(4) and, therefore, are subject to legislative and public review pursuant to the Administrative Procedures Act, S.C. Code Ann. §§ 1-23-10 et seq. Section 1-23-10(4) defines a "regulation" as " ... each agency statement of general public applicability that implements or prescribes law or policy or practice requirements of any agency." (emphasis added). Prior opinions of this office dated April 26, 1990, March 16, 1978 and July 7, 1979 have determined that regulations that do not have "general public applicability" but are limited in their scope do not have to be promulgated pursuant to S.C. Code Ann. §§ 1-23-10 et seq. You have raised the question of the applicability of the need to promulgate a regulation pursuant to the Administrative Procedures Act as to local situations or conditions which necessitate "special rules and regulations" with regard to the operation of boating vessels as set forth in Section 50-21-30. In the opinion of this office, inasmuch as Section 50-21-30 authorizes the Department of Natural Resources (hereinafter "DNR") to make "special rules and regulations" regarding the operation of boating vessels on waters within the territorial limits of a political subdivision of this State, such "special rules and regulations", inasmuch as they do not have general statewide applicability, would not have to be promulgated pursuant to the Administrative Procedures Act. This conclusion is reinforced by the Legislature's insertion of the word "special", indicating something other than AP A promulgated rules and regulations. As referenced in Section 50-21-30, any political subdivision in making its application to DNR for special rules and regulations regarding the operation of vessels on any waters within its territorial limits shall set forth therein the reasons which make such "special rules and regulations" necessary or appropriate. Therefore, it is assumed that special circumstances exist which would necessitate such "special rules and regulations". These special circumstances indicate that such regulations would not have general public applicability and, therefore, promulgation pursuant to the Administrative Procedures Act would not be necessary.

In its formal application for such "special rules and regulations", there must be an articulation of the special and unique circumstances that would necessitate special consideration. Consideration by DNR would not simply be a "permission granted" type of approval but instead would be based upon the finding that special circumstances exist allowing for "special rules and regulations."

Mr. Mabry
Page 3
September 13, 2010

With kind regards, I am,
Very truly yours,
Henry McMaster
Attorney General

By:

REVIEWED AND APPROVED BY:

~p.~
'RObertD:COOk
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General