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. 6891 March 4, 1996 ADMINISTRATIVE PROCEDURES ACT OF 1969: Application of the Administrative Procedures Act of 1969 to local health departments LOCAL HEALTH DEPARTMENTS: Application of the Administrative Procedures Act of 1969 to local health departments Regulations adopted by local health departments are not subject to the rule-making requirements of the Administrative Procedures Act of 1969. Regulations adopted by local health departments are valid even though they were adopted without following the rule-making requirements of the Administrative Procedures Act of 1969. Local health departments are not required to submit their interpretations of the Public Health Code to any review process under the Administrative Procedures Act of 1969. Honorable Christopher D. Dingell State Senator The Capitol Lansing, Michigan You have asked three questions concerning the application of the requirements of the Administrative Procedures Act of 1969, 1969 PA 306, MCL 24.201 et seq; MSA 3.560(101) et seq (APA), to the conduct of local health departments. You first ask whether regulations adopted by local health departments are subject to the rule-making requirements of the APA. In section 2441(1) of the Public Health Code, 1978 PA 368, MCL 333.1101 et seq; MSA 14.15(1101) et seq, the Legislature has authorized local health departments to adopt regulations as follows: (1) A local health department may adopt regulations necessary or appropriate to implement or carry out the duties or functions vested by law in the local health department. The regulations shall be approved or disapproved by the local governing entity. The regulations shall become effective 45 days after approval by the local health department's governing entity or at a time specified by the local health department's governing entity. The regulations shall be at least as stringent as the standard established by state law applicable to the same or similar subject matter. Regulations of a local health department supersede inconsistent or conflicting local ordinances. [Emphasis added.] In section 2442 of the Public Health Code, the Legislature has set forth the procedural steps that must be taken by a local health department before it adopts a regulation. Those steps include notice and a public hearing where persons may present their views on the proposed regulation. The Michigan Supreme Court has held that the rule-making requirements of the APA only apply to state agencies. League General Ins Co v Michigan Catastrophic Claims Ass'n, 435 Mich 338, 343, 351; 458 NW2d 632 (1990). The same court has also ruled that, where the Legislature has established explicit alternative procedural requirements that differ from those found in the APA, the requirements of the APA do not apply. Hanselman v Wayne County Concealed Weapon Licensing Bd, 419 Mich 168, 198; 351 NW2d 544 (1984). Here it is clear, based on the plain language in section 2441(1) of the Public Health Code, that the local health department is not a state agency. Further, in sections 2441(1) and 2442 of the Public Health Code, the Legislature has established explicit alternative procedural requirements for the adoption of regulations by local health departments that depart from the procedural rule-making requirements found in Chapter 3 of the APA. See also, OAG, 1991-1992, No 6727, p 170 (August 21, 1992). It is my opinion, therefore, in answer to your first question, that regulations adopted by local health departments are not subject to the rule-making requirements of the Administrative Procedures Act of 1969. You next ask whether regulations adopted by local health departments are valid even though they were adopted without following the rule-making requirements of the APA. As noted in the answer to your first question, the Legislature does not require local health departments to follow the rule-making requirements of the APA in adopting regulations. Rather, local health departments must follow the requirements set forth in sections 2441(1) and 2442 of the Public Health Code when adopting regulations. It is my opinion, therefore, in answer to your second question, that regulations adopted by local health departments are valid even though they were adopted without following the rule-making requirements of the Administrative Procedures Act of 1969. Your third question is whether local health departments are required to submit their interpretations of the Public Health Code to any review process under the APA. The answer to your first question demonstrates that local health departments are not state agencies, and thus, they are not subject to the APA. It should also be noted that, under section 7(h) of the APA, state agencies may make interpretive statements about state laws enacted by the Legislature that they enforce without following the rule-making requirements of the APA. Clonlara v State Bd of Education, 442 Mich 230, 237-241; 501 NW2d 88 (1993). It is my opinion, therefore, in answer to your third question, that local health departments are not required to submit their interpretations of the Public Health Code to any review process under the Administrative Procedures Act of 1969. Frank J. Kelley Attorney General