As the rules discussed above demonstrate, it is extraordinarily difficult for an administrative agency to write and enforce rules that direct the behavior in the complicated dealings of millions of people. The task becomes more difficult as the law requires more detailed rules. Rules can be so complicated, in fact, that the state and its administrative agencies have trouble just keeping all of them organized, properly cited, up-to-date and comprehensible.
To make the job of regulators easier and to reduce the duplication of work that happens when agencies with overlapping jurisdiction create rules, the state authorizes agencies to essentially crowdsource the writing of their rules. It even does the same for rules enforcement. It is common for Michigan’s administrative agencies to refer to codes, standards or regulations written by other states or entities and simply adopt these as their own. In fact, Michigan law explicitly authorizes this: “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 that has been adopted by an agency of the United States or by a nationally recognized organization or association.”
This means that a department can require Michiganders to comply with regulations or standards created by other government entities or even private organizations. Since the department is not required to publish these rules, citizens must find and learn these requirements if they want to comply with them. In cases where state law assigns a catch-all criminal sanction to a rule violation, this means that criminal behavior can ultimately be determined by a body or organization far removed from Michigan voters.
Sometimes this delegation is done in statute. For instance, the state law that authorizes the agriculture department to maintain rules for smoked fish processors says that processors do not have to comply with state rules if they comply with federal regulations created by the U.S. Food and Drug Administration. State law then effectively outsources the rules regulating Michigan smoked fish processors to bureaucrats in the federal government.
A good example of the state outsourcing administrative rule to a private organization comes from ski resorts. Michigan’s Ski Area Safety Act of 1962 authorizes the Ski Area Safety Board — a seven-member group of people appointed by the governor — to write rules “to provide for the safety of skiers, spectators, and the public using ski areas.” Violating these rules results in a misdemeanor. Specifically, these rules must ensure the “safe construction, installation, repair, use, operation, maintenance, and inspection of all ski areas and ski lifts.” To accomplish this, the rules simply reference and adopt standards created by the American National Standards Institute, a private, nonprofit organization headquartered in Washington, D.C. These standards are not printed, and the rules lead readers to the ANSI website where they can be purchased for $175.
Michigan rules concerning dry cleaners also rely on references to standards created in Washington, D.C. In this case it is the Code of Federal Regulations, created by a national government agency. Dry cleaners in Michigan are required to comply with the National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities. These rules are quite broad, contain seven sections and include defined standards, testing procedures, reporting requirements and even an enforcement mechanism. Dry cleaners are required to comply with all of these rules in addition to state rules, and they may be subject to enforcement by both state and federal officials. Violating these rules in Michigan results in a misdemeanor.
Sometimes the state lets local government create and enforce rules. For example, the Michigan Public Health Code contains a section of law about tattoo parlors, or “body art facilities,” as they are known in statute. The law empowers the Michigan Department of Health and Human Services to establish licensing requirements and allows the department to authorize local public health departments to enforce this law.[*] A violation of this section of law or of any rule promulgated under it is a misdemeanor, punishable by up to 93 days in jail or up to a $2,500 fine, and a civil liability for damages up to $1,000, plus court costs.
These local health departments, staffed by unelected officials, are also authorized to grant variances from this state law and any rules they create for tattoo parlors.[†] The law does require that these variances “not create or increase the potential for a health hazard or nuisance,” but this is to be determined by the local health department. In the end, then, state law, via these variances, empowers local public health officials to determine which laws need to be followed and by whom.
[*] MCL § 333.13104; MCL § 333.13108. At the time of this writing, the rules for body art facilities could not be found. MDHHS publishes a document called “Requirements for Body Art Facilities,” but it is unclear if these are the actual rules. Further, there is a section in the administrative code for body art facilities, but it has no published rules. The document simply says: “New Rules to be Added.” “Requirements for Body Art Facilities” (Michigan Department of Health and Human Services, June 29, 2018), https://perma.cc/GW6K-W48F; "Body Art Facilities" (Michigan Department of Health and Human Services), https://perma.cc/U5YE-Y2KA.
[†] MCL § 333.13111(2). Local health departments are also explicitly empowered to create more stringent rules and regulations of tattoo parlors, if they choose. MCL § 333.13111(1).