Can a state agency adopt a technical handbook as a regulation without printing the whole document in the Maryland Register?

Plain-English summary

In 1988, Maryland's Secretary of the Environment asked the Attorney General about a handbook on soil erosion and sediment control that a state regulation had adopted as the official technical guide for erosion-control work. The question was whether that handbook counted as a "regulation" in its own right, and if so, whether it had to be printed in full in the Maryland Register or could instead just be referenced. The opinion concluded the handbook was indeed a regulation, since it had been adopted to carry out a law the Department of the Environment administered and applied generally going forward. But the opinion also concluded that the Administrator of the Division of State Documents had acted well within his authority in letting the handbook be incorporated by reference rather than reprinted in full, because the relevant statute let the Administrator exempt "generally available" technical publications from full republication, and a detailed, lengthy internally produced handbook available through depository libraries qualified.

Currency note

This opinion was issued in 1988. 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

Did a 1988 Maryland opinion say a technical handbook could count as a state regulation?
Yes. The opinion concluded the erosion-control handbook met the statutory definition of "regulation" because it had "general application" and "future effect" and had been adopted to carry out a law the agency administered.

Did the whole handbook have to be printed in the Maryland Register?
No, according to the opinion. It concluded the Administrator of the Division of State Documents could let the handbook be "incorporated by reference" instead, since the governing statute allowed the Administrator to exempt generally available technical publications from full-text republication.

What made the handbook "generally available" enough to qualify for incorporation by reference?
The opinion pointed to its availability through depository libraries under the Education Article as satisfying that requirement, and noted the same practice had already been used for other lengthy technical materials, like a state health plan.

Background and statutory framework

The handbook at issue, titled "1983 Maryland Standards and Specifications for Soil Erosion and Sediment Control," had been incorporated by reference in COMAR 08.05.01.10 as the official guide for erosion and sediment control principles, methods, and practices. The opinion reasoned that because the handbook had general application and future effect, and had been adopted by a state unit to detail or carry out a law that unit administered, it met the definition of "regulation" found in State Government Article §10-101(e).

Ordinarily, the opinion noted, the full text of a regulation must be published in the Maryland Register under State Government Article §§10-112, 10-113, and 10-114. But State Government Article §7-207 lets the Administrator exempt certain categories of material from full republication and instead let them be incorporated by reference, including, beyond a short list of already-published legal materials like the United States Code and the Code of Federal Regulations, "any other generally available publication that the Administrator specifies." The opinion found that this residual authority reached other types of documents too, pointing to the Administrator's past approval of incorporating by reference a national standard-setting organization's technical code under COMAR 08.13.08.10A(1) and an ANSI accessibility standard under COMAR 05.01.07.02B.

Applying that framework, the opinion concluded the Administrator could treat the sediment-control handbook the same way, since it was a comparably detailed and lengthy internally produced publication, so long as it remained "generally available," a standard the opinion found satisfied through availability in depository libraries under Education Article §§23-2A-01 and 23-2A-04. The opinion noted this approach matched the Administrator's established practice of incorporating by reference other lengthy technical documents, such as the State Health Plan adopted under COMAR 10.24.07.

Citations and references

Statutes:

• COMAR 08.05.01.10
• State Government Article §10-101(e)
• State Government Article §§10-112, 10-113, and 10-114
• State Government Article §7-207
• COMAR 08.13.08.10A(1)
• COMAR 05.01.07.02B
• Education Article §§23-2A-01 and 23-2A-04
• COMAR 10.24.07

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/1988/Volume73_1988.pdf

Original opinion text

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

ADMINISTRATIVE LAW

Regulations—Incorporation by Reference—Internally Produced Handbook Setting Regulatory Guidelines May Be Incorporated by Reference.

January 28, 1988

The Honorable Martin W. Walsh, Jr.
Secretary of the Environment

You have requested our views on the legal status of a handbook on soil erosion and sediment control. Specifically, you ask whether this handbook constitutes a "regulation" under the Administrative Procedure Act and, if so, whether it must be published in full in the Maryland Register.

It is our view that the handbook is a regulation. We also conclude that the Administrator of the Division of State Documents acted well within his authority in approving the incorporation by reference of this document.

I

The Handbook

COMAR 08.05.01.10 provides as follows:

The handbook titled "1983 Maryland Standards and Specifications for Soil Erosion and Sediment Control", is hereby incorporated by reference by the Administration, and shall serve as the official guide for erosion and sediment control principles, methods, and practices.

Plainly, the handbook has "general application" and "future effect"; in the form of "a guideline," it has been "adopted by a unit to ... detail or carry out a law that the unit administers." Accordingly, it meets the definition of "regulation" in §10-101(e) of the State Government Article ("SG" Article). See 72 Opinions of the Attorney General 230, 233-34 (1987). See also Letter of Advice from Assistant Attorney General Linda H. Lamone to Stuart Y. Gordon, Counsel to the AELR Committee (March 3, 1986).

II

Incorporation by Reference

Ordinarily, the full text of each regulation is required to be published in the Maryland Register. See SG §§10-112, 10-113, and 10-114. However, some components of regulations are not published in the Maryland Register, because their publication is expressly prohibited. SG §7-207 provides as follows:

(1) Unless the Committee provides otherwise, the Code of Maryland Regulations and the Register may not reprint any text from:

(i) the Annotated Code of Maryland;

(ii) the Session Laws;

(iii) the United States Code;

(iv) the United States Statutes at Large;

(v) the Code of Federal Regulations;

(vi) the Federal Register; or

(vii) any other generally available publication that the Administrator specifies.

(2) These publications may be incorporated by reference.

Many State regulations, for example, import federal definitions or requirements that are found in the United States Code or the Code of Federal Regulations. These provisions are fully as much a "regulation" under State law as any other component of a regulation. However, they are incorporated by reference, not published in full text. See, e.g., COMAR 08.13.08.10A(1) (requiring submission of "all the information required to be filed by 18 C.F.R. Part 274").

The first six enumerated items in SG §7-207 are legal materials that are published elsewhere. However, the grant of authority to the Administrator with respect to "any other generally available publication" comprehends other types of documents. For example, the Administrator has approved incorporation by reference of the components of regulations that adopt a national standard-setting organization's highly detailed and technical code. See, e.g., COMAR 05.01.07.02B (incorporating by reference an ANSI standard on handicapped accessibility).

As a matter of statutory construction, the Administrator is free to conclude that a comparably detailed and lengthy internally produced publication, like the sediment control handbook in question, should also be incorporated by reference rather than set out in full text in the Maryland Register. Of course, the publication must be "generally available," a requirement that can be satisfied through its availability in depository libraries. See §§23-2A-01 and 23-2A-04 of the Education Article. Indeed, unless the Maryland Register and COMAR are to become unmanageable, some discretion as to full-text reprinting of enormous technical publications is essential. The incorporation by reference of the sediment control handbook reflects a settled administrative practice, for example, the incorporation by reference of the State Health Plan adopted by the Health Resources Planning Commission. See COMAR 10.24.07. In our view, this practice is legally sound.

III

Conclusion

In sum, it is our opinion that COMAR 08.05.01.10 states a proper regulatory requirement, in conformance with the Administrative Procedure Act.

J. Joseph Curran, Jr., Attorney General
Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: The preceding opinion was originally written as a letter of advice. It is published here in a slightly revised format.