By Ashley Ellixson and Paul Goeringer
We’ve decided not to do a short overview of the recently announced Phosphorus Management Tool (PMT) regulations from the Maryland Department of Agriculture (MDA). The feeling is another overview of the regulations would be redundant and fall on an audience who has heard enough about PMT. You’ve all heard how the regulations will potentially impact nutrient management plans for your farm. Plus it is diving into science, and we really are not scientists (though Paul does admit to dressing as a scientist for Halloween many years ago).
Basic Overview
Instead, we will overview a less complicated issue: how a regulation becomes a law. We should quickly point out that regulations carry the same weight of law as a statute passed by the General Assembly or ruling of a court. After the legislative branch passes a law and it is signed by the executive branch, the law is sent to the appropriate executive branch agency. The agency will then develop regulations through collecting data and holding hearings to collect evidence on the best way to implement the law. Once the agency determines the best way to conduct the law’s implementation, the agency will draft a proposed regulation.
Proposed regulations are published in the Maryland Register and the public is given 30 days to comment. During the comment period, the public is encouraged to give feedback on the proposed regulation (positive or negative). At the end of the comment period, the agency will review the comments to determine if they contain new policy arguments, new data, or criticisms. Based on this, the agency can 1) make no changes; 2) make changes but get the Attorney General to certify that the change is not substantial and the certification is published in the Maryland Register, or 3) the changes are substantial and the process starts over (publishing a revised regulation with comment period).
If the agency decides to make no changes or changes that are not substantial, then the regulation is submitted to the Joint Committee on Administration, Executive, & Legislative Review (ALER) 15 days before the regulation is published in the Maryland Register. ALER is made up of 20 members, 10 from the Maryland House of Delegates and 10 from the Senate, and has the job of reviewing regulations to determine if they are in line with legislative priorities and meet procedural due process (or insuring that the regulation does not deny a citizen life, liberty, or property interest without first giving them an opportunity to be heard). ALER can delay or formally oppose a regulation’s adoption. If ALER formally opposes a regulation, then the regulation can only be implemented with the Governor’s approval.
If ALER does not oppose the regulation, then it is published one last time in the Maryland Register as a final rule and goes into effect 10 days after publication. It is at this point the regulation carries the weight of law and can be enforced.
Process for Adopting PMT Regulation
Under the State Government Code of Maryland, the process of adopting a regulation as it pertains to a “unit,” or an entity authorized by law to adopt regulations, is laid out in § 10-111(a). The entity in this case is MDA. The code says that a proposed regulation may not be adopted until ALER has reviewed it and must wait at least 45 days after the regulation has first been published in the Maryland Register. If ALER determines that an appropriate review of the regulation cannot be done within 45 days and that an additional period of review is required, it may do so by notifying MDA and the Division of State Documents, in writing, before the 45-day period ends. If ALER gives notice, MDA may not adopt the regulation until it notifies ALER, in writing, of its intention to adopt the regulation and provides ALER with a further period of review. In addition, MDA shall allow public comment for at least 30 days of the 45-day period after the regulation’s first publication in the Maryland Register.
ALER could also decide to approve the regulation by a majority vote or oppose the regulation with a majority vote within the review period. If ALER opposes the regulation, then within 5 days, ALER has to send notice to the Governor and MDA on why the regulation was opposed. At that point, MDA can withdraw the regulation, modify it (following the process discussed earlier), or submit it to the Governor with an explanation why MDA will not modify or withdraw it. Then it is up to the Governor to decide to withdraw, revise, or approve adoption of the regulation.
Confused? This process is not always straightforward and requires the appropriate hoops to be jumped through in order to enact a regulation. If you have questions on the process, let us know and we will attempt to answer you.
With that said, MDA is accepting comments on the PMT regulations until December 31, 2014. Comments may be sent to Earl F. Hance, Secretary, Maryland Department of Agriculture, 50 Harry S. Truman Parkway Suite 303, Annapolis, Maryland 21401, or call 410-841-5881, or email to Earl.Hance@maryland.gov, or fax to 410-841-5914 MDA has also set up an email address for any questions regarding the regulations: PMTinfo.mda@maryland.gov