Could Maryland's elevator safety regulator write rules that were looser than the national ANSI elevator safety code, to ease the cost burden on building owners?

Plain-English summary

Maryland's Commissioner of Labor and Industry asked whether he could adopt regulations departing from the American National Standards Institute's elevator safety code (the "ANSI Code") if a rulemaking record showed the Code's requirements were too economically burdensome or impractical in particular circumstances. Maryland law required elevators to meet the ANSI Code "and all subsequent amendments and revisions to it," plus any rules the Commissioner adopted, so the question was how much independent authority that gave the Commissioner over the Code's own content.

The opinion concluded the Commissioner's rulemaking power ran only one direction: he could add requirements the Code did not address, such as safeguards for people with disabilities, and he could grant individualized, case-by-case exceptions when a specific applicant showed compliance would cause undue hardship and that reasonable safety could still be secured. But he could not issue a general rule that relaxed or weakened a standard the ANSI Code itself set, such as substituting visual inspection for the hydraulic pressure testing the Code required. The opinion also affirmed that Maryland's decision to keep adopting future ANSI Code amendments automatically, rather than only the version in effect in 1955, was a constitutionally valid delegation of technical fact-finding to an expert standards body, not an improper delegation of the legislature's lawmaking power.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could Maryland's elevator safety regulator write a rule making inspection requirements easier than the national ANSI Code, if the Code seemed too expensive to follow?
No, according to this 1986 opinion. The Attorney General concluded the Commissioner could not adopt a general rule relaxing or weakening any standard the ANSI Code required, though the Commissioner could grant individualized hardship exceptions to a specific applicant on a case-by-case basis.

Was it constitutional for Maryland law to automatically require compliance with future updates to a private organization's elevator safety code, rather than freezing the requirement to the code as it existed when the statute was passed?
Yes. The opinion concluded that adopting a private, expert standards body's evolving technical code was a valid delegation of complicated fact-finding, not an unconstitutional handoff of the legislature's own lawmaking power, since the legislature retained the essential policy choice while the technical details were left to a disinterested body of experts.

Could Maryland's elevator regulator add safety requirements the ANSI Code didn't cover at all, like protections for people with disabilities?
Yes. The opinion concluded that the statute's grant of rulemaking authority would be meaningless if it did not let the Commissioner supplement the ANSI Code in areas the Code left unaddressed, so long as those additional rules did not conflict with or weaken what the Code itself required.

Background and statutory framework

Article 89, §49B(d) required all elevators, dumbwaiters, escalators, and moving walks to be inspected, tested, and maintained under the ANSI Code "and all subsequent amendments and revisions to it," along with any rules the Commissioner adopted. The opinion first addressed whether this ongoing incorporation of a private organization's future code updates was an unconstitutional delegation of legislative power, tracing case law from an early 20th-century line of cases striking down broad delegations to private, self-interested groups, through a more modern trend upholding delegation of technical, evolving standards to disinterested expert bodies when the legislature retains its core policy judgment. The opinion concluded Maryland's adoption of the ANSI Code fit the modern, permissible pattern, since elevator safety is a highly technical area suited to an expert standards body with an established updating process.

Turning to the scope of the Commissioner's own rulemaking power, the opinion read the statute's requirement that regulations be "reasonable and consistent with the letter and policy" of the authorizing law to mean the Commissioner could supplement the ANSI Code's coverage but not modify what the Code itself required, since the Code and its amendments set the statutory floor for elevator safety in Maryland. The opinion separately worked through a conflict between the Code's varying inspection intervals (six months to five years depending on the procedure) and the statute's own one-year maximum certificate validity period, concluding the Commissioner had discretion to set the maximum interval at one year but could not require inspections less often than annually, while procedures the Code called for only every few years still only had to be performed on that less-frequent cycle rather than every single annual inspection. Finally, the opinion read the statute's hardship-exception provision as authorizing only individualized, written-request-based relief, not a general regulatory relaxation of the Code's requirements.

Citations

Statutes:

• Article 89, §49B(d) (incorporation of the ANSI elevator safety code and Commissioner's rulemaking authority)
• Article 89, §49B(g) (case-by-case hardship exception authority)
• Article 89, §49B(i) (one-year maximum certificate of registration and inspection validity)
• Article 25, §10D and §10E (St. Mary's and Charles County adoption of privately formulated building codes)
• Article 41, §257N (state energy guidelines incorporating ASHRAE standards)
• Article 38A, §58 and §60 (adoption of National Fire Protection Association and National Electrical Codes)

Cases:

• Carter v. Carter Coal Co., 298 U.S. 238 (1936)
• Maryland Co-op Milk Producers, Inc. v. Miller, 170 Md. 81 (1936)
• Kansas v. Crawford, 177 P. 360 (Kan. 1919)
• Independent Electricians and Electrical Contractors' Ass'n v. New Jersey Board of Examiners of Electrical Contractors, 256 A.2d 33, 42 (N.J. 1969)
• Agnew v. City of Culver City, 304 P.2d 788, 797 (Cal. Dist. Ct. App. 1957), aff'd, 334 P.2d 571 (Cal. 1959)
• Hillman v. Northern Wasco County People's Utility Dist., 323 P.2d 664, 671 (Oregon 1957)
• Kingery v. Chappie, 504 P.2d 831, 836-37 n. 13 (Alaska 1972)
• State v. Wakeen, 57 N.W.2d 364 (Wis. 1953)
• Niagara of Wis. Paper Corp. v. Wisconsin Dep't of Natural Resources, 268 N.W.2d 153, 162 (Wis. 1978)
• New Jersey v. Hotel Bar Foods, Inc., 112 A.2d 726 (N.J. 1955)
• Commission on Medical Discipline v. Stillman, 291 Md. 390 (1981)
• Scholle v. State, 90 Md. 729 (1900)
• Comptroller v. M. E. Rockhill, Inc., 205 Md. 226, 233 (1954)
• City of Baltimore v. Sitnick, 254 Md. 303 (1969)
• Rossburg v. State, 111 Md. 394 (1909)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1986/Volume71_1986.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

LICENSING AND REGULATION

Elevators—ANSI Code—Regulations May Supplement, But Not Relax ANSI Code Standards.

December 12, 1986

Mr. Dominic N. Fornaro
Commissioner of Labor and Industry
Department of Licensing and Regulation

You have requested our opinion on whether you have the authority to adopt regulations that would depart from the standards of the American National Safety Code for elevators, dumbwaiters, escalators, and moving walks ("ANSI Code") if, based on the rulemaking record, you determined that such modifications were appropriate in light of the economic impact or compliance burden of the ANSI Code.

For the reasons given below, we conclude that the Commissioner of Labor and Industry may supplement the standards in the ANSI Code but may not amend the Code so as to relax or weaken its standards. If application of the ANSI Code results in undue economic burden or makes compliance impracticable in specific situations, the Commissioner may grant case-by-case exceptions, provided that reasonable safety measures are preserved.

I
Article 89, §49B

Article 89, §49B(d) reads in relevant part as follows:

"All new and existing elevators, dumbwaiters, escalators and moving walks shall be inspected, tested and maintained in a safe operating condition as prescribed by the American National Standards Safety Code for elevators, dumbwaiters, escalators and moving walks and known as ANSI A17.1-1971, and all subsequent amendments and revisions to it, and any rules and regulations as may be adopted by the Commissioner of Labor and Industry.

All alterations and relocations of elevators, dumbwaiters, escalators and moving walks, installed subsequent to January 1, 1975, shall meet the requirements of the ANSI Code A17.1-1971 and all subsequent amendments and revisions to it."

Thus, the statute incorporates by reference, or legislatively adopts, the safety code and amendments promulgated by a private group, the American National Standards Institute.1

II
Delegation Doctrine

A. Adoption of Privately Developed Standards

As you point out, the adoption by the General Assembly of the ANSI Code raises a constitutional question: Has the General Assembly impermissibly delegated its legislative authority to a private group? We think not.2

Historically, the courts have rejected overly expansive transfers of legislative authority to non-governmental organizations. Thus, in Carter v. Carter Coal Co., 298 U.S. 238 (1936), the Supreme Court held that sections of the Bituminous Conservation Act of 1935 were unconstitutional because they permitted groups of private producers and miners to fix maximum hours and minimum wages: "This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business." 298 U.S. at 311.

In the same year, the Court of Appeals held unconstitutional an attempt by the General Assembly to abdicate its lawmaking function by making a statute regulating milk production effective only upon the request of various private groups. Maryland Co-op Milk Producers, Inc. v. Miller, 170 Md. 81 (1936). This "power-conferring" was held to be an invalid delegation: "The statutory powers here complained of are not made effective in the exercise of the General Assembly's own judgment, and are inoperative because of an invalid transfer of that responsibility." 170 Md. at 90. And, at least one case in the early part of this century held that this constitutional limitation prohibited legislative adoption of a privately formulated code. Kansas v. Crawford, 177 P. 360 (Kan. 1919) (striking down statute requiring that all electrical wiring conform to National Electrical Code, given lack of legislative participation in Code's adoption).

However, the clear trend in the case law embodies the modern view that, particularly in highly technical areas, a legislature may constitutionally rely on institutionalized, albeit nongovernmental, means for the detailing of legal requirements. Thus, in Independent Electricians and Electrical Contractors' Ass'n v. New Jersey Board of Examiners of Electrical Contractors, 256 A.2d 33, 42 (N.J. 1969), the court approved a statute quite similar to that involved in Crawford. The court noted that the Electrical Code adopted by the statute had been formulated by two standards-setting organizations "through 17 panels of recognized electrical and safety experts throughout the country, who revise it every three years." 256 A.2d at 42. As is true of the ANSI Code as well, these procedures "reflect a national consensus of manufacturers, consumers, scientific, technical and professional organizations, and governmental agencies." As one commentator observed, "The fact that a legislature adopts, by name, a private code rather than enacting a detailed bill drawn up by the same interest group is scarcely of constitutional significance." Liebmann, Delegation to Private Parties in American Constitutional Law, 50 Ind. L.J. 650, 680 (1975).

B. Incorporation of Prospective Amendments to Privately Developed Codes

A somewhat closer question is whether the General Assembly may constitutionally require compliance with all future changes in the ANSI Code, not simply with the ANSI Code as it existed in 1955, when Article 89, §49B was enacted. There is support for the view that incorporation by reference of prospective amendments to private codes is unconstitutional. See Agnew v. City of Culver City, 304 P.2d 788, 797 (Cal. Dist. Ct. App. 1957), aff'd, 334 P.2d 571 (Cal. 1959); Hillman v. Northern Wasco County People's Utility Dist., 323 P.2d 664, 671 (Oregon 1957). Cf. Kingery v. Chappie, 504 P.2d 831, 836-37 n. 13 (Alaska 1972). In general, the courts have had some difficulty in sustaining the constitutionality of a delegation "when the legislature adopts not only the existing standards of some technical or professional group, but any which it may prescribe in the future." Jaffe, Law Making by Private Groups, 51 Harv. L. Rev. 201, 229 (1937).

However, better reasoned precedent supports the view that delegating the future formulation of technical details to a disinterested, expert body is constitutional. For example, in State v. Wakeen, 57 N.W.2d 364 (Wis. 1953), the statute in question regulated the dispensing of "drugs," as " 'recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia, or official National Formulary, or any supplement to any of them....' " 57 N.W.2d at 365 (emphasis added). Rejecting the argument that this adoption of privately formulated listings was an unconstitutional delegation, the Wisconsin Supreme Court wrote that the legislature had merely "provided for the inclusion [in its definition of "drugs"] of articles discovered in the future with the advancement of science. It should not be held void because it provides for the inclusion of new discoveries, if approved by persons most eminent in the profession who are most interested in maintaining the highest standards known or to be known to science." 57 N.W.2d at 369. As the same court later observed in a related context:

"By delegating the task of determining what [a standard of pollution control technology] is to a federal agency, [the legislature] has not delegated its law-making powers. Rather, it has simply delegated the complicated fact determinations upon which the legislative policy is contingent." Niagara of Wis. Paper Corp. v. Wisconsin Dep't of Natural Resources, 268 N.W.2d 153, 162 (Wis. 1978).

Cf. New Jersey v. Hotel Bar Foods, Inc., 112 A.2d 726 (N.J. 1955).

We think that the reasoning adopted by the Wisconsin court is applicable as well to the General Assembly's adoption of the ANSI Code and its "subsequent amendments." The incorporation by reference in Article 89, §49B(d) is a recognition on the part of the General Assembly that elevator safety is a highly technical area in which detailed standards are best determined by the well-recognized, expert body that has in place the mechanism for updating the standards. The General Assembly has not delegated its essential lawmaking power; instead, as the Wisconsin Supreme Court put it, "it has simply delegated the complicated", and, we would add, inherently changeable, "fact determinations upon which the legislative policy is contingent." Niagara of Wis. Paper Corp., 268 N.W.2d at 162. Given that the legislative goal of protecting public safety might well depend on a prompt response to new technology, in our view the General Assembly is not constitutionally required to approve separately each and every ANSI Code amendment as it is developed.

C. Conclusion

In sum, "where the legislature adopts the rules and regulations of private associations in the fields of health and safety there has been little challenge on the basis of an illegal delegation." 1 Sutherland Statutory Construction §4.11, at 142 (Sands 4th ed. 1985). See also Freedman, Delegation of Power and Institutional Competence, 43 U. Chi. L. Rev. 307, 333 (1976). We conclude that the General Assembly's decision to adopt the ANSI Code for elevators, as amended, is not unconstitutional.3

III
Rulemaking Authority of the Commissioner of Labor and Industry

Article 89, §49B(d) expressly provides for the Commissioner's rulemaking authority with respect to elevators: "All new and existing elevators ... shall be inspected, tested and maintained ... as prescribed by the American National Standards Safety Code ... and all subsequent amendments and revisions to it, and rules and regulations which may be adopted by the Commissioner of Labor and Industry." (Emphasis added.)

However, the exercise of this rulemaking authority "must be reasonable and consistent with the letter and policy of the statute under which the agency acts." Comptroller v. M. E. Rockhill, Inc., 205 Md. 226, 233 (1954). Both the "letter and policy" of Article 89, §49B(d) mandate compliance with the ANSI Code. In essence, the ANSI Code and its amendments establish the minimum elevator safety standards to be met in Maryland.

In our view, the grant of rulemaking authority to the Commissioner does not extend to a rule that would modify an ANSI Code requirement, just as it does not authorize a rule modifying a requirement directly stated in the statute. Thus, the Commissioner lacks authority to prescribe by rule a testing procedure that is more relaxed than the procedure called for in the ANSI Code, for example, by allowing mere visual inspection instead of actual testing of a component. See, e.g., ANSI Code §1005.3a (hydraulic pressure testing).4

However, the issue of inspection frequency is more complicated, because both the ANSI Code and the statute itself contain pertinent provisions. The ANSI Code provides for varying inspection procedures at six month, one year, three year, and five year intervals. See, e.g., ANSI Code §§1001 and 1002 (electric elevators) and §§1004 and 1005 (hydraulic elevators). The statute, in contrast, specifically provides for one year inspection intervals:

"If an inspection discloses that an elevator ... complies with the applicable safety code and the rules and regulations of the Commissioner..., the Commissioner shall issue ... a certificate of registration and inspection. The certificate shall be valid for not more than one year from date of issuance." Article 89, §49B(i).

Reading §49B(i) and the ANSI Code together, we conclude as follows:

1. The Commissioner has authority, derived from §49B(i), to prescribe annual inspections, conducted in accordance with the ANSI Code requirements for such inspections. Given the maximum one year validity period specified in §49B(i), the Commissioner has the discretion not to require the ANSI Code's six month inspections.

2. The Commissioner lacks authority to prescribe inspections less frequently than annually. To do so would be inconsistent with §49B(i). However, the annual inspection required by §49B(i) need not be more extensive than required under the ANSI Code. In other words, if the ANSI Code calls for a particular inspection procedure once every three years, that procedure need not be performed annually merely because §49B(i) requires annual inspections; rather, the procedure is required every third inspection.

IV
Hardship Exceptions

With regard to your question about the authority of the Commissioner to take economic factors into account and modify the ANSI Code accordingly, we reiterate that a rule dealing with a matter addressed by the ANSI Code must be consistent with the Code. See Part III above.

At the same time, the Commissioner does have express authority to consider economic factors. Article 89, §49B(g) provides that:

"The Commissioner, upon written request, may grant exceptions from the literal requirements or permit the use of other devices or methods than those specified under ANSI Code A17.1-1971 and all subsequent amendments and revisions to it and rules and regulations adopted where it is evident that action is necessary to prevent undue hardship or where existing conditions prevent practical compliance and reasonable safety can in the opinion of the Commissioner be secured."

As we read it, this provision's reference to "exceptions" permits the grant of exceptions on a particularized, case-by-case basis only. If the person making the "written request" can satisfy the Commissioner that, under the particular circumstances, compliance with the ANSI Code would cause "undue hardship" or would be impracticable and that "reasonable safety can ... be secured," the Commissioner may permit noncompliance with the Code.

V
Conclusion

In summary, it is our opinion that the Commissioner of Labor and Industry may supplement the standards in the ANSI Code but may not amend the Code so as to relax or weaken its standards. If application of the ANSI Code results in undue economic burden or makes compliance impracticable in specific situations, the Commissioner may grant case-by-case exceptions, provided that reasonable safety measures are preserved.

Stephen H. Sachs
Attorney General
Mary C. Keane
Staff Attorney

Jack Schwartz
Chief Counsel
Opinions and Advice

1 "Two private organizations are the major sources of consensus standards: the American National Standards Institute, Inc., and the National Fire Protection Association." S. Rep. No. 1282, [Occupational Health and Safety Act of 1970], 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. & Ad. News 5182. A "national consensus standard" is any "safety and health standard or modification which (1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined ... that persons affected have reached substantial agreement on its adoption (2) and formulated after an opportunity for consideration of diverse views...." Id. at 5202-03.

2 As noted in a recent letter of advice, "[i]t is not uncommon for the General Assembly to make references to a private organization or corporation in a statute.... The Court of Appeals has frequently rejected constitutional attacks on statutes delegating a measure of governmental power to private organizations." Letter from Assistant Attorney General Robert A. Zarnoch to Senator Frank J. Komenda (October 28, 1986) (citing Commission on Medical Discipline v. Stillman, 291 Md. 390 (1981) and Scholle v. State, 90 Md. 729 (1900), and discussing reference in §4-509.1(a) of the Estates and Trusts Article to the Medical Eye Bank of Maryland, Inc.). Other examples of Maryland statutes that incorporate privately formulated codes may be found in Article 25, §§10D and 10E, which authorize the County Commissioners of St. Mary's and Charles Counties, respectively, to adopt building codes promulgated by the Building Officials Conference of America; Article 41, §257N, which requires the Department of Economic and Community Development to "develop statewide energy utilization guidelines" utilizing the most recent ASHRAE (American Society of Heating, Refrigerating, and Air Conditioning Engineers) standard; and Article 38A, §§58 and 60, adopting the National Fire Protection Association and National Electrical Codes, respectively.

3 Maryland is certainly not alone in its reliance on evolving private standards in technical areas: "There has been widespread State adoption of the National Formulary and the United States Pharmacopoeia as standards for pure food and drug legislation and the Uniform Classification of Accounts of the National Association of Railway and Utility Commissioners, the National Electrical Safety Code, the regulations of the National Board of Fire Underwriters, etc." 1 Sutherland Statutory Construction, §4.11 at 148 n.5. See also note 2 above.

4 The grant of rulemaking authority in Article 89, §49B(d), though it does not authorize relaxation of the ANSI Code, would be meaningless if it did not allow the Commissioner to supplement the ANSI Code. For example, the Commissioner may regulate in areas not covered by the Code, such as by requiring additional safeguards for handicapped persons on elevators. Cf. City of Baltimore v. Sitnick, 254 Md. 303 (1969) and Rossburg v. State, 111 Md. 394 (1909) (discussing "concurrent powers" doctrine with regard to local subdivisions and State).