STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5790

September 11, 1980

ADMINISTRATIVE LAW AND PROCEDURE:

Promulgation of emergency rule

Certification of impasse

STATE FIRE SAFETY BOARD:

Promulgation of rules

The emergency rules of the State Fire Safety Board relating to hazardous materials inspection fees are valid in the absence of a joint resolution of the Legislature rescinding the emergency rules.

Colonel Gerald L. Hough

Director

Department of State Police

714 South Harrison Road

East Lansing, Michigan 48823

Referring to the State Fire Safety Board's Emergency Rules captioned Hazardous Materials Inspection Fees, filed with the Secretary of State on April 3, 1980, you have requested my opinion on the following question:

1942 PA 207, as amended ⁽¹⁾; MCLA 29.1 et seq; MSA 4.559(1) et seq, is known as the Fire Prevention Act. 1941 PA 207, supra, Sec. 5b, provides that each location of a firm doing business in Michigan and each vehicle of such firm, where the firm or vehicle is engaged in the transportation within Michigan of hazardous material, shall not be established or operated without first being certified as being in compliance with the requirements of the Act by the State Fire Marshal following inspection. 1941 PA 207, supra, Sec. 1(o) defines 'hazardous material' as:

Thus, under 1941 PA 207, Sec. 5b, supra, each location of a firm or vehicle transporting hazardous material within Michigan must be inspected and certified.

1941 PA 207, supra, Sec. 5c provides:

In 1941 PA 207, supra, Sec. 5d the legislature has provided:

Accordingly, 1941 PA 207, Sec. 5d(2), supra, provides that the annual certification inspection fee shall be determined by the State Fire Safety Board. Sanctions for noncompliance with the certification requirement are provided in the statute. ⁽²⁾

The authority for the State Fire Safety Board to promulgate rules concerning implementation of the amount of the annual certification inspection fee, prescribed by 1941 PA 207, Sec. 5d(2), supra, is contained in language found in 1941 PA 207, supra, Sec. 3c(1) which provides:

Following notice and public hearing, on July 9, 1979, the State Fire Safety Board adopted proposed hazardous materials rules pursuant to the Administrative Procedures Act of 1969, 1969 PA 306; MCLA 24.201 et seq; MSA 3.560(101) et seq. These proposed rules were approved by the Legislative Service Bureau on September 7, 1979, and the Department of the Attorney General approved the legality of the proposed rules on September 28, 1979, pursuant to 1969 PA 306, supra, Sec. 45(1). Subsequently, revised proposed hazardous materials rules were adopted by the State Fire Safety Board on December 6, 1979, and were certified by the Legislature Service Bureau on December 12, 1979, and thereafter by the Department of Attorney General on December 13, 1979. 1969 PA 306, Sec. 45(1), supra.

Subsequently, the revised proposed rules dated December 6, 1979, were transmitted to the Joint Committee on Administrative Rules for review and approval. 1969 PA 306, Sec. 45(2), supra.

On March 14, 1980, the Chairman of the Joint Committee on Administrative Rules certified that the Committee had reached an impasse on the revised proposed rules dated December 6, 1979. Impasse certification is provided by 1969 PA 306, Sec. 45(4), supra.

Further, 1969 PA 306, Sec. 45(6), supra, provides that where an impasse has been certified, '[a]n agency may resubmit a rule . . . returned under subsection (4) with minor modifications. Such a rule is a new filing and subject to this section but is not subject to further notice and hearing as provided in sections 41 and 42.'

Following issuance of the impasse certification, the revised proposed rules were not resubmitted with minor modification to the Joint Committee, under 1969 PA 306, Sec. 45(6), supra. Upon making a Finding of Emergency, the State Fire Safety Board adopted, on April 1, 1980, Emergency Rules providing for Hazardous Materials Inspection Fees. The Emergency Rules are substantially similar to the revised proposed rules. ⁽³⁾ The Emergency Rules were promulgated pursuant to 1969 PA 306, supra, Sec. 48, which provides:

In adopting its Emergency Rules on April 1, 1980, which are substantially similar to the revised proposed rules for which an impasse was certified, the State Fire Safety Board made the following Finding of Emergency, pursuant to 1969 PA 306, Sec. 48(1), supra:

On April 3, 1980, the governor concurred in the Finding of Emergency by the State Fire Safety Board, ⁽⁵⁾ and the certificate concurring in the Finding of Emergency was filed with the Secretary of State. ⁽⁶⁾ The Emergency Rules become effective on their filing on April 3, 1980, pursuant to 1969 PA 306, Sec. 48(1), supra. The Emergency Rules have a prescribed duration of 6 months, and, if not extended, will expire on October 3, 1980. 1969 PA 306, Sec. 48(1), supra.

1980 PA 247, given immediate effect on July 28, 1980, pursuant to Const 1963, art 4, Sec. 27, further amended 1941 PA 207, supra. 1980 PA 247, section 4, provides that the provisions of amendatory 1980 PA 247 shall not take effect until October 1, 1980. Eg, Weaver v Haney, 32 Mich App 424; 188 NW2d 905 (1971). 1980 PA 247 amends 1941 PA 207, Sec. 5d, supra, by providing specific annual certification inspection fees. Amendatory 1980 PA 247, Sec. 5d(2) and (3) establish a statutory formula upon which annual certification inspection fees will be based, effective October 1, 1981. However, from October 1, 1980 (effective date of amendatory 1980 PA 247) to October 1, 1981, the annual inspection certification fee is $70 for a vehicle and $30 for each storage tank, pursuant to 1941 PA 207, Sec. 5d(4), supra, as amended by 1980 PA 247, which fees closely parallel those contained in the Emergency Rules. ⁽⁷⁾

Based on the foregoing chronology, you inquire whether the Emergency Rules filed with the Secretary of State on April 3, 1980, were properly promulgated under 1969 PA 306, supra, where the Joint Committee on Administrative Rules has previously certified an impasse concerning proposed rules with substantially the same language as the Embergency Rules.

1969 PA 306, Sec. 45(4), supra, provides in pertinent part that where the Joint Committee certifies an impasse, and the impasse is reported to the Legislature and the proposed rules thereafter returned to the agency, '[t]he agency shall not adopt or promulgate the rules' unless (1) the legislature, by concurrent resolution within 60 days after receiving the impasse report, approves the rules by concurrent resolution or (2) the joint committee subsequently approves the rule. Thus, after certification of an impasse, an agency shall not 'adopt' or 'promulgate' a rule unless one of the two specified conditions exist.' No prohibition against issuance of an emergency rule is contained in 1969 PA 306, Sec. 45(4), supra. The phrase 'adoption of a rule' is defined in 1969 PA 306, supra, Sec. 3(1) as:

Also pertinent is 1969 PA 306, Sec. 45(7), supra, which states that where the Joint Committee approves proposed rules or the Legislature adopts a concurrent resolution approving such rules, the agency '. . . shall formally adopt the rule. . . .' Therefore, adoption of a rule by formal action of an agency may take place only after all preliminary requirements under 1969 PA 306, supra, have been met, including approval of the joint committee or approval of the Legislature by concurrent resolution. Further, 'adoption of a rule', as that term is employed in 1969 PA 306, Sec. 45(4), supra, must be distinguished from adoption by an agency of a proposed rule, which is then submitted to the Legislative Service Bureau, the Attorney General, and, ultimately, to the Joint Committee for review and approval. Therefore, 1969 PA 306, Sec. 45(4), supra, must be read as providing that an agency shall not finally adopt a proposed rule once an impasse has been certified concerning such proposed rule. In the instant matter, the State Fire Safety Board has not finally adopted a rule by 'formal action' prusuant to 1969 PA 306, Secs. 3(1) and 45(7), supra, but, instead, has promulgated Emergency Rules under 1969 PA 306, Sec. 48(1), supra.

1969 PA 306, Sec. 45(4), supra, further provides that, following certification of an impasse, an agency shall not adopt or '. . . promulgate the rule. . . .' 'Promulgation of a rule' is defined in 1969 PA 306, supra, Sec. 5(6) as '. . . that step in the processing of a rule consisting of the filing of the rule with the secretary of state.' In addition, 1969 PA 306, supra, Sec. 46(1) provides that:

Thus, 'promulgation of a rule' is effected under 1969 PA 306, Sec. 46(1), supra, where there is filed with the secretary of state 3 copies of the rule bearing: (a) the certificates of approval of the Legislative Service Bureau and Deapartment of Attorney General (1969 PA 306, Sec. 45(1), supra); and (b) the certificate of approval of the Joint Committee (1969 PA 306, Sec. 45(3), supra) or the Legislature adopts a concurrent resolution approving the rule (1969 PA 306, Sec. 45(5)(a), supra); and (c) the certificate of formal adoption by the issuing agency.

Therefore, under 1969 PA 306, Secs. 46(1) and 45(4), supra, it is clear that there is no 'promulgation of the rule', including approval by the joint committee or approval by concurrent resolution of the Legislature, or formal final adoption of an approved rule by the issuing agency after such precedent approvals, where the agency promulgates an emergency rule under 1969 PA 306, Sec. 48(1), supra.

Thus, based on the above provisions of 1969 PA 306, supra, it is clear that no adoption or promulgation of a rule transpires when an agency adopts an emergency rule under 1969 PA 306, Sec. 48(1), supra. The singular status of an emergency rule, as contrasted with a non-emergency rule, is further evidenced by 1969 PA 306, Sec. 48(2), supra, which declares that where an agency wishes to promulgate an identical or similar rule with an effectiveness beyond the final effective date of an emergency rule, the agency must comply with requisite procedures '. . . for processing of a rule which is not an emergency rule. . . .'

The specific language of 1969 PA 306, Sec. 45(4), supra, governing certification of impasse, contains no language that an emergency rule shall not be promulgated following certification of an impasse. Express mention of one thing in a statute excludes other similar things. Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971). Inasmuch as no proscription is expressly stated, no such limitation may be implied. This conclusion is supported by reference to 1969 PA 306, Sec. 45(2), supra, which specifically declares '[t]his subsection [subsection (2)] does not apply to an emergency rule.' Review of the provisions of 1969 PA 306, Sec. 45(2), supra, indicates that the provision of subsection (2), providing for transmittal of the proposed rules (bearing certificates of approval of the Legislative Service Bureau and Attorney General) to the Joint Committee on Administrative Rules, shall not apply in the case of promulgation of emergency rules. ⁽⁸⁾ The Legislature has not provided in 1969 PA 306, Sec. 48(1), supra, for the transmission of emergency rules to the Joint Committee, and the language in 1969 PA 306, Sec. 45(2), supra, confirms the procedure set out in 1969 PA 306, Sec. 48(1), supra, whereby emergency rules are not filed with the Joint Committee. This conclusion is further supported by PROCESSING OF PROPOSED GUIDELINES AND ADMINISTRATIVE RULES (March, 1979) issued by the Joint Committee On Administrative Rules, pursuant to 1969 PA 306, supra, Sec. 36. Section V, entitled Formal Action By The Joint Committee On Administrative Rules, provides:

This consistent explication of 1969 PA 306, Sec. 45(2), supra, must be viewed as decisive of legislative intent. Chesapeake & Ohio Ry Co v Michigan Public Service Commission, 347 Mich 234; 79 NW2d 586 (1957).

It is, thus, seen that the language within 1969 PA 306, Sec. 45(2), supra, concerning emergency rules, provides that emergency rules need not be filed with the Joint Committee, consistent with the unambiguous language of 1969 PA 306, Sec. 48(1), supra. Every clause and every word of the statute is presumed to have force and meaning, and full effect must be given to every part of a statute. Wyandotte Savings Bank v Eveland, 347 Mich 33; 78 NW2d 612 (1956). The provisions of a statute must be read in context, not in isolation, and should be harmonized to give effect to all provisions. Guitar v Bieniek, 402 Mich 152; 262 NW2d 9 (1978).

1969 PA 306, Sec. 48(3), supra, provides the exclusive legislative remedy with respect to emergency rules:

Amendatory 1977 PA 82 added the above-quoted language to 1969 PA 306, Sec. 48(3), supra. Where the language employed in a statute is plain, certain and unambiguous, a bare reading suffices and no interpretation is required. City of Grand Rapids v Crocker, 219 Mich 178, 182; 188 NW 221, 222, (1922). While the Legislature has provided itself with the power to rescind emergency rules by concurrent resolution, pursuant to 1969 PA 306, Sec. 48(3), supra, the Legislature has not rescinded the Emergency Rules concerning Hazardous Materials Inspection Fees. Indeed, it may be observed that the Legislature was knowledgeable concerning the content of the Emergency Rules, since the statutory annual certification inspection fees provided in 1941 PA 207, supra, Sec. 5d (see fn 7, supra, and accompanying text) closely parallel those provided in the Emergency Rules. Additionally, it is noted that amendatory 1980 PA 247, supra, will become effective October 1, 1980, two days prior to the lapse of the statutory six month duration of the Emergency Rules promulgated on April 3, 1980. The coordination of the inspection fee provisions is apparent, both in amount of the fee and in the continuity of the time period covered by the Emergency Rules and amendatory 1980 PA 247, supra.

The reasonableness of the annual certification inspection fees contained in the Emergency Rules is evinced by the Legislature' a essential incorporation of the same in 1941 PA 207, Sec. 5d(4), as last amended by 1980 PA 247, supra. In addition, the Emergency Rules are within the scope of authority delegated by 1941 PA 207, supra, are consistent with the legislative intent, and are neither arbitrary nor capricious. Thomas Brothers, Inc. v Secretary of State, 90 Mich App 179; 282 NW2d 273 (1979), lv app den 407 Mich 886 (1979).

In Michigan Farm Bureau v Bureau of Workman's Compensation, 408 Mich 141, 149; 289 NW2d 699, 701 (1980) the Court quoted from I Davis, Administrative Law Treatise, Sec. 5.03, p 299, as follows:

See, also, 2 Davis, Administrative Law Treatise (2d Ed, 1979), Sec. 7:8, p 36.) See Rodrigues v Dunn, 128 F Supp 604 (Ed Mich, 1955) aff'd 249 F2d 958 (CA 6, 1957); Severino v Ingraham, 397 NYS2d 236 (App Div 1977).

Based on the foregoing, it is concluded that the Emergency Rules concerning Hazardous Materials Inspection Fees, filed with the Secretary of State on April 3, 1980, are within the authority legislatively granted the State Fire Safety Board by 1941 PA 207, Sec. 5d(2), supra, are issued pursuant to proper procedure under 1969 PA 306, Sec. 48(1), supra, and are reasonable.

It is, therefore, my opinion that the Emergency Rules concerning Hazardous Materials Inspection Fees, filed with the Secretary of State on April 3, 1980, were properly promulgated where the legislature has not by concurrent resolution acted to rescind the Emergency Rules. These Emergency Rules have the force and effect of law.

Frank J. Kelley