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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6080

June 22, 1982

RULES AND REGULATIONS:

Incorporation by reference of advisory training standards adopted by state agency

Advisory training standards promulgated by the Michigan Fire Fighters Training Council, a state agency, may not be adopted by reference in a rule promulgated by the Michigan General Industry Safety Standards Commission. MAC 1979, R 408.17411 is void and without force and effect.

Honorable Leo R. Lalonde

State Representative

State Capitol

Lansing, MI 48909

You have requested my opinion whether advisory training standards for fire fighters promulgated by the Michigan Fire Fighters Training Council pursuant to the Fire Fighters Training Council Act of 1966 may be made mandatory by the promulgation of a rule to such effect by the Michigan General Industry Safety Standards Commission, pursuant to its rule-making authority under the Michigan Occupational Safety and Health Act, where the rule merely refers to the said training standards and to the public act under which they were promulgated.

The purpose of the Fire Fighters Training Council Act of 1966, 1966 PA 291, MCLA 29.351 et seq; MSA 4.560(1) et seq, is stated in its title as follows:

'AN ACT to provide for the creation of a fire fighters training council; to provide for the establishment of the fire fighters training council fund and allocations therefrom to local agencies of government participating in a fire fighters training program; and to make an appropriation.'

1966 PA 291, supra, Sec. 9, in part, provides:

'The council shall prepare and publish advisory training standards with due consideration to varying factors and special requirements of local fire agencies. . . .' (Emphasis supplied.)

The General Industry Safety Standards Commission of the Michigan Department of Labor, pursuant to the Michigan Occupational Safety and Health Act, 1974 PA 154, MCLA 408.1001 et seq; MSA 17.50(1) et seq, Sec. 16, as last amended by 1978 PA 455, promulgated Rule 7411, which provides in part:

'An employer shall:

(a) Provide training to an employee as prescribed in standards promulgated under Act No. 291 of the Public Acts of 1966, being Sec. 29.361 et seq. of the Michigan Compiled Laws, which is provided by the Michigan fire fighters training council, or its equivalent training, as to the hazards and safe practices of the assigned job.' MAC 1979, R 408.17411.

Thus, the General Industry Safety Standards Commission sought to incorporate by reference in MAC 1979, R 408.17411, supra, and to thereby make mandatory, the advisory standards promulgated under 1966 PA 291, supra, by the Fire Fighters Training Council.

The Administrative Procedures Act of 1969, 1969 PA 306, as amended, MCLA 24.201 et seq; MSA 3.560(101), et seq, in Sec. 32(4), with respect to adoption by reference, provides:

'An agency may adopt, by reference in its rules and without publishing the adopted matter in full, all or any part of a code, standard or regulation which has been adopted by an agency of the United States or by a nationally recognized organization or association. The reference shall fully identify the adopted matter by date and otherwise. The reference shall not cover any later amendments and editions of the adopted matter, but if the agency wishes to incorporate them in its rule it shall amend the rule or promulgate a new rule therefore.

The agency shall have available copies of the adopted matter for inspection and distribution to the public at cost and the rules shall state where copies of the adopted matter are available from the agency and the agency of the United States or the national organization or association and the cost thereof as of the time the rule is adopted.'

The standards promulgated by the Fire Fighters Training Council are not 'any part of a code, standard or regulation which has been adopted by an agency of the United States or by a nationally recognized organization or association.' Accordingly, said standards adopted by a state agency are not of the type permitted to be incorporated by reference in accordance with the provisions of 1969 PA 306, Sec. 32(4), supra.

As was noted by the Court in Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971);

'. . . Michigan has recognized the principal [sic] of expressio unius est exclusio alterious--express mention in a statute of one thing implies the exclusion of other similar things.' (citations omitted)

It is my opinion, therefore, that MAC 1979, R 408.17411, supra, of the General Industry Safety Standards Commission is void and without force and effect.

Frank J. Kelley

Attorney General

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