Bergeson & Campbell, P.C. serves small, medium, and large pesticide product registrants and other stakeholders in the agricultural and biocidal sectors, in virtually every aspect of pesticide law, policy, science, and regulation.

By James V. Aidala, Lisa M. Campbell, and Sheryl Lindros Dolan

Although the Office of Pesticide Programs (OPP) was able to operate through December 28, 2018, despite the current partial federal government shutdown, EPA will now join other parts of the federal service and shut down.

Meanwhile, the Pesticide Registration Improvement Extension Act (PRIA 3) sunset on December 21, 2018, in the absence of a Continuing Resolution (CR) and the onset of the shutdown.  According to Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 33(m)(2)(B) [7 USC § 136w-8(m)(2)(B)], the fee for any pesticide application that is subject to a service fee and submitted after December 21, 2018, will be reduced by 70 percent below the fee in effect on September 30, 2017, but no corresponding review period will be assigned.  Any applications submitted now thus will not have a required EPA review period and thus will likely be the lowest priority for EPA review when the shutdown ends.  For this reason, despite the lower fees, registrants should not submit applications until PRIA is enacted and defined review periods once again are established.

The enactment of some version of PRIA is expected soon, especially given the consequences of the current situation for EPA and government functions generally.  Most likely any kind of authorization for funding government operations, such as a CR for a limited time period or for Fiscal Year 2019, is expected to include at least a simple reauthorization of the PRIA 3 for the duration of the CR.  This would also mean the new Congress will have to act sometime in the next session to reauthorize PRIA either to continue PRIA 3 beyond a new CR time period or approve amendments such as those considered as PRIA 4 during the 115th Congress.  Given the difficulty of Congress in reaching agreement on appropriations legislation, it is possible that PRIA reauthorizations continue to be included as part of CRs for an indefinite time period.

This uncertainty about the status of PRIA may also impact generally the program’s ability to plan and schedule review of registration applications.

Regardless of when PRIA is enacted, however, the shutdown will prevent EPA action on newly submitted applications.  OPP states on its web site:

  • Applications received on or prior to December 21, 2018, will be reviewed under the decision time frames specified in PRIA 3;
  • Applications received after December 21, 2018, will be subject to the provisions of FIFRA Section 33(m)(2)(B); and
  • Applications received after December 28, 2018, will not be considered as received or processed until the shutdown ends.

Registrants should monitor developments closely. 


 

By James V. Aidala and Lisa M. Campbell

On December 19, 2018, the Senate passed a short-term Continuing Resolution (CR) to prevent a government shutdown and continue funding for the government through February 8, 2019.  Currently, however, given the uncertainty over border wall funding, it appears likely that there may well be a government shutdown for some period of time.  Until the immigration issue is ultimately resolved in an eventual agreement, however, the majority and Democratic staff of the U.S. House of Representatives Agriculture Committee expect that the Pesticide Registration Improvement Act (PRIA) extension will be included in the CR.  Both the majority and minority in both the House and Senate have reportedly agreed to support PRIA in the new year.

The recent House Conference Report for H.R. 2, the Agriculture Improvement Act of 2018, or the Farm Bill, deleted previously inserted provisions regarding the Pesticide Registration Improvement Enhancement Act of 2017.  The House version of the Farm Bill included the enactment of the Pesticide Registration Improvement Enhancement Act of 2017 (H.R. 1029, Section 9119), but the Senate version contained no comparable provisions.  More information on the Farm Bill Conference Report is available in our memorandum “Congress Passes Farm Bill Conference Report.”

Commentary

The positive news is that many members of both the House and Senate appear to remain committed to legislative reauthorization of PRIA.  At the same time, with the change in party control in the House of Representatives, reauthorization may continue to be delayed as the new Congress with new Committee leadership devotes time and energy to competing priorities. 

In addition, as PRIA amends the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), it could provide an opportunity for amendments to FIFRA outside of the funding context to be offered by members interested in other pesticide-relevant issues.  Debate on additional pesticide issues would only likely lead to further delay and uncertainty about long-term reauthorization of PRIA.


 

by James V. Aidala

Time is running out on the Pesticide Registration Improvement Act (PRIA), and it could die a natural death on January 19, 2018, absent Congressional action.  Congress enacted PRIA in 2003 and in so doing established a fee schedule for pesticide registration and amendment applications and critically important specified decision time periods within which the U.S. Environmental Protection Agency (EPA) must make a regulatory decision.  PRIA has been reauthorized twice, and was scheduled to expire at the end of the 2017 federal fiscal year, on September 30, 2017.  A short term funding measure saved the day, but it expires on January 19.

As was the case for PRIA and its prior reauthorizations, a coalition of registrants, labor, and environmental advocates were working with Congress relatively smoothly to pass what will be “PRIA 4” before the expiration date.  In May 2017, however, EPA announced that as part of its regulatory review efforts, there would be delays in implementing recent regulations making changes to worker protection standard (WPS) regulations and requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) certification and training (C&T) programs run by the states -- all Obama initiatives.  Some farm advocacy groups, the American Farm Bureau in particular, raised concerns about a few elements of the WPS regulations, and the National Association of State Departments of Agriculture (NASDA) also raised concerns about some elements of the WPS and C&T programs.  More information regarding the status of the WPS and C&T rulemakings is available in our blog item “EPA Signals New Rulemakings On Worker Protection Standard and Certification of Pesticide Applicators.”

When EPA announced plans to review and possibly change these regulations, farmworker advocacy groups withdrew their support for the draft PRIA legislation.  Along with concerns about possible regulatory changes and delays, environmental groups also expressed concerns with the Administration’s decisions allowing the continued use of chlorpyrifos as part of a petition response announced in March 2017.  The tumult fractured the PRIA coalition and a group of Democratic Senators supporting the environmental and labor advocates’ position blocked the PRIA legislation preventing changes to the current WPS regulations, and separately introduced legislation that would effectively end the use of chlorpyrifos (S. 1624).

The PRIA reauthorization has already been approved by the House of Representatives, but now there is a sufficient number of Senate Democrats to block movement of the legislation.  As a result, there is currently an impasse, with discussions reportedly ongoing but with no clear path towards resolution.

As the deadline nears, it is expected that a temporary PRIA renewal will be part of any additional short extension, with a less certain outlook about the chances of being included in any comprehensive, year-long legislation to fund government operations.  The expectation is that some kind of resolution will be found, but the specific parameters of any solution have not yet been identified.

PRIA has also included the authorization for the “maintenance fee” provisions first included in the 1988 amendments to FIFRA, designed as general support for the EPA pesticide program budget.  Taken together, PRIA reauthorization has become a major contributor to the program budget.

Should PRIA not be reauthorized, then the current law allows for a phase-down of the current submissions which include PRIA fees and are subject to decision deadlines.  The larger issue would be the potential for the elimination of approximately 200 positions from the pesticide program workforce, which is about one-third of the current staff (and is in line with the share of program costs supported by fees).

Stay tuned -- we will monitor this important topic.  More information on PRIA issues is available on our blog under key word PRIA.


 

By Susan M. Kirsch

On May 24, 2017, the U.S. House of Representatives passed H.R. 953, the Reducing Regulatory Burdens Act of 2017, by 256-165 vote.  H.R. 953, which is similar to bills introduced in the past three congresses, would overturn a 2009 U.S. Court of Appeals for the Sixth Circuit decision requiring Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permits for pesticide spraying activities into, over, or near waters.  The legislation would eliminate NPDES permitting for pesticide spraying that complies with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Proponents of the legislation assert that the addition of CWA regulation is duplicative, burdensome, and costly for industry without resulting in any additional environmental benefits.  Opponents argue that the bill would strip clean water protections for waters already listed as impaired for pesticides.  Championed by Representative Bob Gibbs (R-OH), the recent vote received significant bipartisan support, with twenty-five Democrats voting in support of the bill.  Senators Claire McCaskill (D-MO) and Mike Crapo (R-ID) introduced companion legislation in the Senate (S. 340), which currently awaits action by the Committee on Environment and Public Works.  The prospects for a Senate vote are mixed in light of the number of confirmations in the queue for political appointees, as well as big ticket legislative priorities, such as health care and tax reform.  If legislation is enacted, it would only apply to the four states (Idaho, New Hampshire, New Mexico, and Massachusetts), tribal lands, and other federally managed areas that are governed by the federal NPDES permit.  Forty-six states administer state versions of pesticide permits.  Mmany states would be expected to phase out permitting if the federal requirement is eliminated, however.

More information regarding CWA NPDES issues is available on our blog under key word NPDES.


 

By Lynn L. BergesonJames V. Aidala, and Margaret R. Graham

On February 14, 2017, in the House of Representatives, Rep. Rodney Davis (R-IL) introduced H.R. 1029, the “Pesticide Registration Enhancement Act of 2017,” which reauthorizes the Pesticide Registration Improvement Act (PRIA).  H.R. 1029 was immediately referred to the Agriculture Committee and to the Energy and Commerce Committee; it was passed by the Agriculture Committee on February 16, 2017.  Per Agriculture Committee Chair Michael Conaway’s opening statement at the Business Meeting markup of H.R. 1029, changes to PRIA include “reasonable increases in registration fees, funding for Good Laboratory Practices, and a seven year reauthorization as opposed to the five-year reauthorizations of the past.”  H.R. 1029 would allow the U.S. Environmental Protection Agency (EPA) to collect up to 31 million in registration fees (up from 27.8 million) per year from fiscal years (FY) 2017-2023.  It also includes the following registration increases for FY2017 through FY2023:

  • The maximum annual fee for registrants holding 50 pesticide registrations or less would be $129,400 (up from $115,500);
  • The maximum annual fee for registrants holding over 50 pesticide registrations would be $207,000 (up from $184,800);
  • The maximum annual fee payable for a small business registrant holding 50 pesticide registrations or less would be $79,100 (up from $70,600); and
  • The maximum annual fee payable for a small business registrant holding over 50 pesticide registrations would be $136,800 (up from $122,100).

Commentary

PRIA represents a commitment by the pesticide registrants to help with the continued resource issues of the pesticide regulatory program.  This has become an issue of increased concern with the arrival of the Trump Administration after campaign rhetoric about eliminating EPA and cutting budgets.  Fees are seldom a popular topic, but an essential program component.  Without staff and resources to approve pesticide registrations, registrants would be left with new products destined to pile in EPA in-boxes.  PRIA is designed to help maintain some certainty and predictability to the review process.

Of some note is that in recent years Congress has appropriated funds at a level below the statutory minimum that originally was a line in the sand which, if breeched, would de-authorize EPA’s authority to charge application fees.  The regulated community has reluctantly supported Congressional action to lower this “minimum” level of funding to hold onto the programmatic progress which has been made since the first PRIA authorization.  This appears to be an uneasy acceptance of the budget realities surrounding federal spending on discretionary, non-defense expenditures.