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

On March 8, 2019, President Trump signed S. 483, the “Pesticide Registration Improvement Extension Act of 2018,” which reauthorizes the Pesticide Registration Improvement Extension Act (PRIA 4) through fiscal year 2023, updates the fee collection provisions and authorities available under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and addresses worker protection matters.  The text is available at Congress.gov, which has not yet been updated to confirm that the bill has been signed (but this appears to be the final amended text of the bill).

On February 14, 2019, the Senate approved S. 483 to reauthorize the Pesticide Registration Improvement Extension Act (PRIA 4) and the House of Representatives approved it on February 25, 2019.  Further amendments were made and the Senate approved the amended text on February 28, 2019.  More information on the PRIA 4 legislation is available on our blog under key word PRIA.  


 

By James V. Aidala

On February 14, 2019, the Senate approved S. 483 to reauthorize the Pesticide Registration Improvement Extension Act (PRIA 4).  The Senate bill did not have the specific categories and timelines of earlier reauthorization language, referring instead to more general legislative language that the Senate approved during the Farm Bill authorization in 2018.  Legislation in this new session of Congress was necessary since PRIA was not reauthorized as part of the appropriations language approved by Congress to end the government shutdown.  More information on the Senate bill is available in our blog item “PRIA Not Extended in Appropriations Bill; PRIA 4 Bill Passed by Senate.”

When, on February 25, 2019, the House of Representatives also approved S. 483, the legislation included the specific timelines and PRIA categories which appeared in the original PRIA 4 proposal.  This meant that either the different language in the legislation would need a House-Senate conference, or, the Senate could simply vote again and approve the House version of S. 483.  That is the course of action taken by the Senate, which then approved the amended text (the House approved language) of S. 483 on February 28, 2019.

The legislation now awaits signature by the President, and then PRIA 4 will become law.  It extends PRIA through fiscal year (FY) 2023.  The legislation raises the industry registration fees and refines some of the categories of actions from PRIA 3 (specific legislative text is available here).


 

By Sheryl Lindros Dolan and James V. Aidala

The Appropriations Bill that is expected to be signed into law on February 15, 2019, provides funding for the rest of Fiscal Year (FY) 2019 and averts another federal government shutdown.  It does not, however, include either an extension of the Pesticide Registration Improvement Extension Act (PRIA 3) or Reauthorization, widely referred to as PRIA 4.  This omission was a surprise to industry and to the U.S. Environmental Protection Agency (EPA).  On February 13, 2019, the Senate introduced a stand-alone PRIA 4 bill (S. 483).  Acting swiftly, the Senate passed the bill on February 14, 2019, by unanimous consent.  S. 483 directly references H.R. 1029, the Pesticide Registration Enhancement Act of 2017, from the last Congress, with amendments passed by the Senate on June 28, 2018.  

S. 483 has moved to the House, where the timing of a vote currently is unclear.  The House will go into a week-long recess after today.  It is possible that the bill will not further progress until the House reconvenes on February 25, 2019. 

The effect on EPA and the regulated community during this transition is also unclear.  Currently, EPA is sorting out applications and PRIA deadlines along with workload planning in the aftermath of the recently concluded federal government shutdown.  The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) provides for a reduction in applicable fees if PRIA is not reauthorized, but it is unclear if applications submitted during the transition will be assigned a PRIA review date.  If PRIA 4 is passed, we expect that the fee provisions will be retroactive and that EPA will send invoices to applicants for submissions made during the transition period for the difference between what was paid and the new PRIA 4 fee. 

More information on these topics is available in our blog items "Federal Budget Deal Negotiations Fail to Advance PRIA Reauthorization" and "Continuing Resolution to Re-open the Government Includes PRIA Extension."


 

By James V. Aidala, Sheryl Lindros Dolan, and Susan M. Kirsch

As reported in the trade press on February 14, 2019, following budget negotiations late on Wednesday, February 13, several legislative riders did not make it into the conference report for the final fiscal year (FY) 2019 omnibus spending package.  This purportedly includes an extension of the Pesticide Registration Improvement Extension Act (PRIA 3) or the long-awaited Reauthorization known as “PRIA 4.”  This may be the result of political pressure to avoid another government shutdown with a “clean bill” package capable of garnering the necessary votes.  The Senate and House are expected to vote on the omnibus package today, February 14, 2019, ahead of the expiration of the current budget resolution on February 15.  While much is still in flux, the final omnibus package, once passed, will provide a clearer picture on any PRIA implications.  At this time it appears that, contrary to past budget resolutions, PRIA 3 will not be extended.  More information on the recent PRIA extensions is available in our blog items Continuing Resolution to Re-open the Government Includes PRIA Extension and Registrants Face PRIA and Shutdown Issues.

In the event of a lapse, the “phase-down” provisions in the statute will mean that new submissions require a reduced fee schedule, but submissions will no longer have an associated PRIA deadline for a decision on the application.  The U.S. Environmental Protection Agency (EPA) will likely “clarify” in the coming days and weeks what this means for any expectation for an application submitted during this time.  During the recent shutdown, EPA stated that applications submitted during that temporary lapse only required the reduced fee.  At that time, however, since no deadline was required for such an application, EPA advised that applicants should expect guidance as to when to expect a decision (that is, in effect, do not bother to submit things during the shutdown period since PRIA actions with an associated deadline will have priority for the foreseeable future).  When the federal government reopened on January 28, however, EPA processed all applications received during the shutdown as PRIA actions submitted on January 28.

Now with PRIA likely not in effect after February 15, 2019, even with an approved EPA budget for FY2019, EPA will have to evaluate what to communicate to applicants about what to expect during the time of the PRIA 3 phase-down.  Any plans for this period may be affected by provisions in PRIA 4.  On February 13, 2019, the Senate introduced standalone PRIA 4 legislation (S. 483) with bipartisan support which could facilitate relatively quick Senate action on a PRIA 4 proposal.  The House would also need to take action to renew the program.

Because no PRIA action was taken in the budget agreement, important questions now swirl about the program, including:  

  • What happens to any new submissions?  
  • Will there be impacts on pending deadlines?  
  • What exactly will happen to any submissions made during the current “no PRIA” period?  
  • What might be the longer term impact of this (in)action on general pesticide program operations (e.g., staffing, contracts, schedules for non-PRIA actions)?

EPA will be addressing these and many other important questions over the next few days. 


 

By James V. Aidala

The short-term continuing resolution (CR) includes an extension of the Pesticide Registration Improvement Extension Act (PRIA 3) through the duration of the funding measure, February 15, 2019.  This was expected, and is welcome news to registrants who have delayed submittal of registration applications due to the shutdown.

The status of applications submitted during the shutdown period is uncertain at best.  As described in our earlier blog item Registrants Face PRIA and Shutdown Issues, registrants were advised to not submit applications during the shutdown as the U.S. Environmental Protection Agency (EPA) has previously indicated that applications submitted during the shutdown would not be subject to any PRIA deadline.  During this period of budget battles and shutdown uncertainty, it would appear to be prudent to ensure that any applications for registration are submitted while EPA (and PRIA) are operational under appropriated funding.

While this is good news, the uncertainty surrounding the possibility of another shutdown at the end of this period not only makes planning difficult for registrants, it also creates workload management problems at EPA to deal with backlogs and unpredictable resources for processing pending and new applications.  EPA will have to clarify what the extended shutdown period means for processing times and priorities.  As of today, EPA is still literally sorting out applications and PRIA deadlines along with workload planning to determine how best to proceed.

Stay tuned …


 

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 Margaret R. Graham

On October 10, 2018, EPA’s Office of Pesticide Programs (OPP) announced that it will be holding a public meeting of the Pesticide Program Dialogue Committee (PPDC) on October 31, 2018, from 8:30 a.m. to 5:00 p.m., and that on November 1, 2018, from 8:30 a.m. to 12:00 p.m., it will be hosting an informational seminar on biotechnology-pesticide issues for stakeholders.  83 Fed. Reg. 50921.  The PPDC meeting and informational seminar will be held at 1 Potomac Yard South, 2777 S. Crystal Dr., Arlington, Virginia, in the lobby-level Conference Center.  EPA’s draft agenda for the PPDC meeting has been posted to the PPDC website.

The PPDC meeting agenda lists the following seven sessions: 

  1. Pesticide Registration Improvement Act (PRIA) -- session goal is to “provide the PPDC with an update on EPA’s progress in implementing PRIA”;
  2. Smart Label Project/e-CSF -- session goal is to “provide the PPDC with an overview the electronic pesticide label, the benefits to EPA and stakeholders, and next steps”;
  3. Emerging Application Technologies -- session goal is “to inform the PPDC about how new unmanned aerial vehicle (UAV) technology is working in the field for pesticide applications and how this new technology may benefit the agricultural sector”;
  4. Benefits of Biological Products: Industry Perspective -- session goal is to explain “BPPD’s focus on low risk products and biopesticides, how EPA encourages low risk products by having a different division and registration timelines and costs” and “how pesticides, whether conventional or biological, are reviewed with rigor and held to the same safety standard”;
  5. Integrated Mosquito Management Training -- session goal is to “provide awareness of on-line training and manual (in English and Spanish) focusing on Integrated Mosquito Management created by AMCA with funding by the Centers for Disease Control and Prevention”;
  6. Public Health Workgroup -- session goal is to “report on the progress of the group’s Emergency Preparedness Plan and solicit feedback”; and
  7. 21st Century Toxicology: OPP’s Efforts on Non-Animal Alternative Testing for the Acute 6-Pack -- session goal is to “update the PPDC on OPP’s recent progress toward the reduction of animal use in testing, and the implementation of alternative methods.”

Nancy Beck, Ph.D., Deputy Assistant Administrator of the Office of Chemical Safety and Pollution Prevention and Richard Keigwin, OPP Director, will make the opening remarks.  After the sessions, EPA is providing a 15-minute window for public comments.  PPDC meetings are free, open to the public, and no advance registration is required.


 

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 Lisa M. Campbell and James V. Aidala

On September 18, 2017, the U.S. Environmental Protection Agency’s (EPA) Office of Inspector General (OIG) issued a report on an evaluation conducted by OIG entitled “EPA Needs to Manage Pesticide Funds More Efficiently.”  OIG states that it conducted the audit “to determine whether EPA manages the Pesticides Reregistration and Expedited Processing Fund (known as the [Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)] Fund) and the Pesticide Registration Fund (known as the [Pesticide Registration Improvement Act (PRIA)] Fund) effectively to minimize reliance on appropriated funds.”

In the report, OIG states its finding that “EPA should manage the [Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)] and [Pesticide Registration Improvement Act (PRIA)] Funds more effectively by reducing excess fund balances to within a target range. As of September 30, 2016, [OIG] identified excess funds of approximately $21.4 million for FIFRA and $8.5 million for PRIA, for a total of $29.9 million.  A reduction in fund balances would increase the availability of appropriated funds for other environmental purposes.”

In the report, OIG makes the following recommendations to EPA:

  1. For the Assistant Administrator for Chemical Safety and Pollution Prevention (OCSPP) to “establish a target range for its FIFRA and PRIA Fund balances and develop and implement a plan to reduce excess funds to within the target range”; and
  2. For the Chief Financial Officer to “reconcile the FIFRA and PRIA Funds’ balances to the corresponding liabilities.”

The report states that EPA concurred with establishing a target range and developing a plan to reduce excess funds for FIFRA Fund balances, but did not agree with establishing a target range and developing a plan to reduce excess funds for PRIA Fund balances, citing the lack of predictability of PRIA collections. OIG stated that it “still believe[s] PRIA has excess funds that should be addressed,” and “[t]he agency agreed to reconcile FIFRA and PRIA balances.”

This report follows two OIG reports issued on August 14, 2017, on audits of the financial statements of (1) the FIFRA Fund; and (2) the PRIA Fund for fiscal years (FY) 2015 and 2016.  OIG is required to perform an annual audit of the financial statements of the FIFRA Fund under the Food Quality Protection Act (FQPA), and of the PRIA Fund under PRIA.

OIG states in its reports on the audits for FYs 2015 and 2016, of both the FIFRA and the PRIA Funds, that it “noted a material weakness in that the EPA cannot adequately support its FY 2016 [PRIA/FIFRA] Fund costs.”  OIG further stated, however, that this issue has been noted in prior audit reports, and that EPA is taking corrective actions.”  For those reasons, OIG stated that it was making “no new recommendations for [these] material weakness[es].”  In FYs 2016 and 2015, EPA “lost the audit trail to properly support how much of the [PRIA/FIFRA] payroll expenses were paid for by appropriations.”  To address these losses, in October 2016, EPA instituted an enhancement to its timekeeping system’s cost allocation that will allow for “the creation of an audit trail to capture costs incurred by the [PRIA/FIFRA] Fund and other appropriations that support [PRIA/FIFRA]-related activities.”

More information on other EPA OIG reports is available on our blog under key terms OIG and EPA OIG.

Commentary

The reality of why the FIFRA funds are in surplus is a political response to the overall budgetary politics of Congress.  The Office of Pesticide Programs (OPP) has not been authorized to utilize these funds fully or freely hire staff due to the budget agreements of Congress, and, more recently, due to the attempt by the new Administration to keep the Presidential budget proposal more in balance.  The OIG knows this also, but “politics” is not the concern of a good audit, and this is not helped by the problem of EPA having “lost the audit trail” of how these monies were spent.  PRIA reauthorization is soon to be overdue, and now appears perhaps to be in some jeopardy, at least in the near term.  Fortunately for OPP, the surplus in these funds that OIG addresses will be able to buy the program some time to continue relatively “as is” while waiting for PRIA politics to subside to the point where reauthorization is approved and the program can focus more on the improvements suggested by the OIG report.


 
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