STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6641

December 14, 1989

FIRE SAFETY BOARD:

Variation in application of fire safety rules

STATE FIRE MARSHAL:

Variation in application of fire safety rules

Neither the State Fire Safety Board nor the State Fire Marshal have the authority to vary the effective date of the fire safety rules set forth in 1989 MR 7, R 29.301 et seq, but the State Fire Marshal is empowered to make a variation of the application of the rules on a finding that the variation does not result in a hazard to life or property.

Mr. John D. L'Hote

Chairman

State Fire Safety Board

Fire Marshal Division

Department of State Police

General Office Building

7150 Harris Drive

Lansing, MI 48913

You have requested my opinion with respect to rules of the State Fire Safety Board of the Department of State Police, entitled "Schools, Colleges and Universities," 1989 MR 7, R 29.301 et seq, which were promulgated in accordance with the authority conferred by the Fire Prevention Code, 1941 PA 207, Sec. 3c, MCL 29.3c; MSA 4.559(3c).

You have informed me that the Board has received a request to modify the application of these new fire safety rules that became effective in the summer of 1989. Several school districts have asked the Board not to apply the new rules to school buildings that will be constructed in their districts which had not received plan approval from the State Fire Marshal prior to the effective date of the new rules, but had received bonding certification prior to that date. These school districts ask the Board to permit them to construct buildings that comply with the previous, rather than the current, fire safety rules.

Your question is:

1989 MR 7, R 29.301 et seq, were promulgated pursuant to the Administrative Procedures Act of 1969, MCL 24.201 et seq; MSA 3.560(101) et seq, and as of their effective date, have the force and effect of law. See, Douglas v Edgewater Park Co, 369 Mich 320; 119 NW2d 567 (1963). 1989 MR 7, R 29.305(1) provides, in pertinent part, that school "[p]lans and specifications shall be submitted to the state fire marshal for all projects that involve construction, remodeling, or additions." Furthermore, 1989 MR 7, R 29.305(5) provides:

This provision permits a school that obtained plan approval prior to the effective date of the new rules to construct buildings in compliance with the previous fire safety rules if construction begins within six months of the effective date of the rules, or within an extended period of time if an extension is granted by the state fire marshal. This provision does not apply, however, to the situations that you have described because the schools' plans had not been approved prior to the effective date of the new rules. Thus, a school's building plans must comply with the new fire safety rules if they had not received approval prior to the effective date of the rules.

A review of the Michigan Fire Prevention Code, discloses no provision granting the Board or the State Fire Marshal the authority to modify the effective date of promulgated rules. However, MCL 29.3c(6); MSA 4.559(3c)(6) provides in pertinent part:

It is my opinion, therefore, that neither the State Fire Safety Board nor the State Fire Marshal has the authority to vary the effective date of the new fire safety rules. It is my further opinion, however, that the State Fire Marshal may make a variation of the application of these rules, but only upon finding that the variation does not result in a hazard to life or property.

Frank J. Kelley

Attorney General