THE OBLIGATORY PHOSPHORUS MANAGEMENT TOOL POST: HOW A REGULATION BECOMES A LAW

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 Registerand 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.

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