By Lisa R. Burchi, James V. Aidala, and Dana S. Lateulere
On November 8, 2022, the U.S. Environmental Protection Agency (EPA) issued a final rule adding chitosan (Poly-D-Glucosamine), a naturally occurring substance found in the cell walls of all crustaceans, many fungi, and the exoskeletons of most insects, to its minimum risk pesticide exemption list. 87 Fed. Reg. 67364. EPA states that the listing also includes those chitosan salts that can be formed when chitosan is mixed with the acids that are listed as active or inert ingredients eligible for use in minimum risk pesticide products.
According to EPA’s announcement of the final rule, the purpose of the exemption list is to eliminate the need for EPA to expend significant resources to regulate products deemed to be of minimum risk to human health and the environment. Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 25(b) minimum risk exemption, products that contain only those active and inert ingredients allowed by the exemption and that meet certain requirements are exempt from the normal FIFRA registration requirements. Approximately a decade has passed since a substance was added to the list of ingredients eligible for the minimum risk pesticide exemption.
Chitosan is currently registered with EPA under FIFRA as a fungicide, antimicrobial agent, and plant growth regulator that boosts the ability of plants to defend against fungal infections. EPA’s decision was based on a review of an October 10, 2018, petition requesting that chitosan be added to the list of active ingredients allowed in exempted minimum risk pesticide products. In November 2020, EPA requested public comment on the proposed rule to add chitosan to the list of active ingredients eligible for the exemption. Additionally, in November 2021, EPA requested information from the petitioner on chitosan salts and their potential effect on the environment.
EPA states that after reviewing the latest available science and comments on the proposed rule and the Notice of Data Availability, it has determined to add chitosan to its list of active ingredients eligible for EPA’s minimum risk pesticide exemption. EPA’s analysis of the available data suggests that chitosan and chitosan salts are of low toxicity to humans and that no environmental risks of concern have been identified. As a result of this final rule, products that contain chitosan and that comply with all the other requirements applicable to minimum risk pesticides will no longer need to be registered under FIFRA. Products containing chitosan that cannot meet all minimum risk pesticide requirements may still require registration.
The final rule is available here. Additional information on chitosan is available on our blog.
As the first change to the list in many years, this may represent EPA’s attempt to communicate further about “safer” or reduced risk products to the public. These Section 25(b) products are allowed to make pesticidal claims without EPA review and approval and can make certain claims that are not permitted for registered pesticides (e.g., “safe for use around children and pets,” “all natural”). Based on EPA’s determination, these products will not be subject to EPA review, thus reducing workload for which program resources may be used on other products that possibly pose greater risks.
At the same time, this current effort to issue regulation changes to communicate better information to the public does not address past commitments to clarify important safety information about possibly misleading or often misunderstood claims for products already exempted from registration requirements under Section 25(b). Specifically, in response to a 2006 petition (see Petition of the Consumer Specialty Products Association to Modify EPA’s Exemption from FIFRA Regulation for Minimum Risk Pesticides under 40 C.F.R. § 152.25(f) (Mar. 15, 2006)) about health and safety claims for Section 25(b) products making implied public health label claims, EPA agreed to issue regulations to make requirements for insect repellents more clear for Section 25(b) products and to ensure that insect repellent products are safe and effective.
Regarding insect repellents, the 2006 petition argued that the average consumer would not distinguish between labeling claims to “repel mosquitoes,” which are allowed for minimum risk pesticides, and labels that make public health claims by linking a mosquito with a specific disease (e.g., “repel mosquitoes which may cause West Nile Virus”), which are not allowed for minimum risk pesticides.
In response to the 2006 petition, EPA pledged to ensure that insect repellents actually repelled insects. To date, little progress has been made, and no change to the Section 25(b) situation regarding repellents has been proposed or made final. The commitment to clarify and ensure effectiveness of insect repellents has not been addressed and does not appear to be on any announced regulatory agenda for the pesticide program.
The latest episode of Bergeson & Campbell, P.C.’s (B&C®) All Things Chemical® podcast, “Balancing Wildlife Protection and Responsible Pesticide Use -- A Conversation with Jake Li,” features a conversation with Jake Li, Deputy Assistant Administrator for Pesticide Programs, Office of Chemical Safety and Pollution Prevention (OCSPP), U.S. Environmental Protection Agency (EPA). Conversation topics include what the Administration is doing to balance wildlife protection and responsible pesticide use and how the Endangered Species Act (ESA) Workplan is helping EPA’s Pesticide Program meet its ESA obligations.
Lynn L. Bergeson, Managing Partner, B&C, and James V. Aidala, Senior Government Affairs Consultant, B&C, and former Assistant Administrator for EPA’s Office of Prevention, Pesticides, and Toxic Substances, join Mr. Li for a wide-ranging discussion of OCSPP obligations and priorities related to wildlife protection and ESA.
Enacted almost 50 years ago, ESA is intended to preserve and protect imperiled species. Implementing ESA while balancing the need for pesticide use has proven to be challenging for decades. Jake Li and Jim Aidala both have significant experience in senior policy positions in this space at EPA, with a keen understanding of the legal, policy, and commercial implications of ESA. This discussion will be of keen interest to growers, pesticide suppliers, policy makers, and anyone with an interest in balancing the protection of wildlife and the responsible use of pesticides to protect the food supply and human health.
“Balancing Wildlife Protection and Responsible Pesticide Use -- A Conversation with Jake Li” is available now on B&C’s website and on Apple Podcasts, Google Podcasts, and Stitcher.
By Lisa M. Campbell, James V. Aidala, Lisa R. Burchi, and Barbara A. Christianson
On May 6, 2022, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register announcing the availability of, and requesting comments on, data related to aquatic toxicity of chitosan salts. 87 Fed. Reg. 27059. Specifically, EPA is seeking comments on the following two aquatic toxicity reports submitted by Tidal Vision Products, LLC (Tidal Vision), the company that submitted a petition to EPA on October 10, 2018, requesting that EPA add chitosan to the list of active ingredients eligible for EPA’s minimum risk pesticide exemption under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 25(b):
- Tidal Vision USA. (2019). Aquatic Toxicology Report by Eurofins Environmental Testing Test America. Lab I.D. No. B4345. Report Date: June 17, 2019. EPA Master Record Identification (MRID) 51861901.
- Tidal Vision USA. (2019). Aquatic Toxicology Report by Eurofins Environmental Testing Test America. Lab I.D. No. B4421. Report Date: August 28, 2019. EPA Master Record Identification (MRID) 51861902.
EPA is seeking input on how these reports may be used by EPA in its assessment of aquatic toxicity of chitosan and its salts. EPA states “chitosan may form as a salt (e.g., acetate, lactate, hydrochloride, and salicylate) when it is solubilized in acids for end use product formulation and subsequently applied in the environment” and the new information submitted by Tidal Vision pertains to these salts. Comments on the aquatic toxicity reports are due on or before June 6, 2022, in Docket EPA-HQ-OPP-2019-0701.
As background, EPA on August 20, 2020, announced that it was seeking to add chitosan to the list of active ingredients allowed in minimum risk pesticides that are exempt from pesticide registration requirements and was providing to the United States Department of Agriculture (USDA) for review a draft regulatory document titled ‘‘Pesticides; Addition of Chitosan to the List of Active Ingredients Allowed in Exempted Minimum Risk Pesticides Products.” A minimum risk product must meet six specific conditions to be exempt from pesticide registration. One of those conditions is that the active ingredient in the minimum risk pesticide be one that is listed specifically by EPA. If EPA adds chitosan to the list of minimum risk pesticide active ingredients, pesticide products containing chitosan could qualify as minimum risk pesticides provided the other conditions also are satisfied (e.g., using inert ingredients approved by EPA for use in minimum risk pesticides, not making any public health claims).
On November 2, 2020, EPA requested comments on the proposed rule to add chitosan to the list of active ingredients eligible for the exemption. In the May 6, 2022, Notice, EPA states that comments received on the proposed rule expressed concerns regarding derivatives of chitosan that are likely to be produced when chitosan is mixed with certain acids and on the potential hazard for aquatic organisms exposed to chitosan salts. Because of the concerns raised, EPA now is requesting comments on the two aquatic toxicity reports that pertain to these salts.
EPA continues to remain focused on listing this specific substance rather than address other issues related to minimum risk pesticides that have been raised by industry to EPA over many years. There is, for example, a petition filed in 2006 by the Consumer Specialty Products Association (CSPA) requesting that EPA modify the minimum risk pesticide regulations to exclude products claiming to control public health pests from the Section 25(b) exemption. Comments submitted in response to the November 2, 2020, proposed rule raise additional concerns, including but not limited to the fact that the vast majority of states now require registration of minimum risk pesticides, thus shifting the burden away from EPA with costly and potential inconsistent results.
Though this EPA list is called “minimum risk,” it more accurately could be described as -- “so safe no one could, or at least should, have any concern about toxicity.” There is long-standing reluctance for EPA to call any pesticide whatsoever as “safe” for various reasons, even to the point of an outright prohibition on using the word “safe” on registered labels. (This is the clever distinction that “minimum risk” pesticides do meet the FIFRA definition of a pesticide, but the Section 25(b) designation allows that the label not be subject to EPA review and registration of the label.)
This issue of possible risks from adding chitosan to the Section 25(b) list in light of the studies EPA seeks comment on appears to allow EPA to back away from its intended designation as minimum risk or to have the public comment reaffirm EPA’s assessment that chitosan’s safety profile is sufficiently beyond reproach to align with the other members of this category. There are many other pesticides considered of very low risk but not so low as to have made the Section 25(b) list until now. That there is a hint of debate about possible toxicity could signal that future additions to the list are being contemplated to encourage more “minimum risk” product development. Or more simply, it may signal EPA’s reaction to the comments received has triggered some reconsideration of how “minimum” any minimum risk needs to be to qualify for the Section 25(b) list.
Bergeson & Campbell, P.C.’s (B&C®) April 20, 2022, webinar “FIFRA Hot Topics” is now available for on-demand viewing at https://attendee.gotowebinar.com/recording/7426709986449689102. During this one-hour webinar, Lisa M. Campbell, Partner, B&C, moderated a lively and informative discussion between Edward Messina, Director, U.S. Environmental Protection Agency (EPA) Office of Pesticide Programs (OPP), and James V. Aidala, Senior Government Affairs Consultant, B&C, as they discussed key OPP developments and priorities.
With year one of the Biden Administration’s term in the history books, EPA OPP is focusing on long-standing challenges, especially EPA-wide efforts to implement Environmental Justice (EJ) work and determining how best to meet core pesticide registration review obligations in 2022. During this webinar, Messina spoke about the recently released Endangered Species Act (ESA) Workplan, chlorpyrifos and dicamba developments, pesticide product performance data requirements, and per- and polyfluoroalkyl substances (PFAS) issues, as Aidala followed up with questions informed by his many years of experience in senior positions at EPA.
We encourage you to view the webinar, subscribe to B&C’s informative FIFRAblog™ and pesticide newsletter, and access more pesticide development news directly from OPP on its website.
Wednesday, April 20, 2022
12:00 p.m. - 1:00 p.m. (EDT)
Register now to join Bergeson & Campbell, P.C. (B&C®) for “FIFRA Hot Topics,” a complimentary webinar covering key Office of Pesticide Programs (OPP) priorities and what companies should know to avoid market delays.
With year one of the Biden Administration’s term in the history books, we have a clearer sense of how EPA is proceeding on all fronts. EPA OPP is focusing on long-standing challenges, especially a renewed effort to meet Endangered Species Act (ESA) consultation requirements and determining how best to meet core pesticide registration review obligations in 2022. These program priorities must reflect special considerations for environmental justice and climate change, advance critical science and policy issues, develop a fifth Pesticide Registration Improvement Act (PRIA) implementation framework, and display a renewed commitment to working collaboratively with state partners and other stakeholders to implement the program.
- OPP and Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Issues and Priorities
- Climate Change and Environmental Justice
- Trade and Import Issues
- Recent Developments in EPA Efforts to Better Coordinate FIFRA Efforts and ESA Requirements
- Reauthorization of PRIA
- Additional Review of Chlorpyrifos and Dicamba
- Per- and Polyfluoroalkyl Substances (PFAS) in Pesticide Containers
By Heather F. Collins, M.S.
The March 1, 2022, deadline for all establishments, foreign and domestic, that produce pesticides, devices, or active ingredients to file their annual production for the 2021 reporting year is fast approaching. Pursuant to Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 7(c)(1) (7 U.S.C. § 136e(c)(1)), “Any producer operating an establishment registered [under Section 7] shall inform the Administrator within 30 days after it is registered of the types and amounts of pesticides and, if applicable, active ingredients used in producing pesticides” and this information “shall be kept current and submitted to the Administrator annually as required.”
Reports must be submitted on or before March 1 annually for the prior year’s production. The report, filed through the submittal of EPA Form 3540-16: Pesticide Report for Pesticide-Producing and Device-Producing Establishments, must include the name and address of the producing establishment; and pesticide production information, such as product registration number, product name, and amounts produced and distributed. The annual report is always required, even when no products are produced or distributed.
EPA has created the electronic reporting system to submit pesticide-producing establishment reports using the Section Seven Tracking System (SSTS). Users will be able to use SSTS within EPA’s Central Data Exchange (CDX) to submit annual pesticide production reports. Electronic reporting is efficient, saves time by making the process faster, and saves money in mailing costs and/or courier delivery and related logistics. EPA is encouraging all reporters to submit electronically to ensure proper submission and a timely review of the report.
Links to EPA Form 3540-16, as well as instructions on how to report and how to add and use EPA’s SSTS electronic filing system, are available below.
Further information is available on EPA’s website.
By Lisa R. Burchi and Barbara A. Christianson
On December 30, 2021, the U.S. Environmental Protection Agency (EPA) issued a final rule rescinding the March 2, 2020, final rule (2020 inspection rule) regarding EPA’s procedures for conducting on-site civil inspections. This final rule applies to on-site inspections conducted by EPA civil inspectors, federal contractors, and Senior Environmental Employment employees conducting inspections on behalf of EPA.
This rule is effective immediately, as EPA states this rulemaking is procedural rather than substantive.
The 2020 inspection rule was promulgated to implement Executive Order (EO) 13892, “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication” (84 Fed. Reg. 55239). The 2020 inspection rule, codified at 40 C.F.R. Part 31, set forth the elements of the process to conduct on-site civil inspections (e.g., timing of inspections, opening and closing conferences, document review) and guidance regarding each element.
EPA states it is rescinding the 2020 inspection rule in accordance with EO 13992, “Revocation of Certain Executive Orders Concerning Federal Regulation,” issued by President Biden on January 20, 2021 (86 Fed. Reg. 7049). Specifically, EO 13992 revokes EO 13892, stating that it is the policy of the Biden Administration “to use available tools to confront the urgent challenges facing the Nation, including the coronavirus disease 2019 (COVID-19) pandemic, economic recovery, racial justice, and climate change. To tackle these challenges effectively, executive departments and agencies (agencies) must be equipped with the flexibility to use robust regulatory action to address national priorities. This order revokes harmful policies and directives that threaten to frustrate the Federal Government's ability to confront these problems, and empowers agencies to use appropriate regulatory tools to achieve these goals.”
According to EPA, the 2020 inspection rule being rescinded converted a subset of what had been long-standing civil inspection practices, guided by applicable Agency policies, into “rules” of EPA procedure by which “all” civil inspections “shall be conducted.” 40 C.F.R. Part 31.1(a). EPA states:
Although not altering the rights of parties outside of EPA, the change from an Agency practice to a rule of procedure reduces the flexibility that is inherent in implementing agency policies in a case-by-case manner. The procedures for inspections must be adaptable to the site-specific conditions that the Agency faces in conducting its investigations. By rescinding the 2020 inspection rule, EPA is restoring the flexibility needed when carrying out civil inspections under a myriad of circumstances.
EPA notes that it will continue to employ its policies and methods for public transparency of Agency procedures for conducting on-site civil inspections. For example, EPA notes procedures described in this rule already exist in inspection guidance documents and manuals, which are accessible to the public through EPA’s website. Additionally, EPA states it has met and will meet all statutory obligations pertaining to posting documents for public accessibility. To the extent that concerns arise regarding Agency guidance, a person may -- consistent with the Administrative Procedure Act -- petition EPA, including a request to issue, amend, or repeal EPA guidance, by contacting the EPA program office or regional office that is responsible for administering the area of stakeholder interest.
Bergeson & Campbell, P.C. (B&C®) is pleased to provide our Forecast 2022 to FIFRA Blog readers, offering our best informed judgment as to the trends and key developments we expect to see in the new year. For the U.S. Environmental Protection Agency’s (EPA) Office of Pesticide Programs (OPP), 2021 was a full year of working from home while addressing ongoing priorities; continuing the march toward meeting the 2022 deadline for registration review of pesticides registered before 2006; attempting to comply with the requirements of the Endangered Species Act (ESA); and meeting Pesticide Registration Improvement Act (PRIA) deadlines for registration applications. OPP is expected to focus on long-standing challenges, especially a renewed effort to meet ESA consultation requirements and to meet core pesticide registration review obligations. More details on this, and expected regulatory changes of all varieties, are available in our Forecast for U.S. Federal and International Chemical Regulatory Policy 2022.
“What to Expect in Chemicals in 2022”
January 26, 2022, 12:00 p.m. EST
B&C will be presenting a complimentary webinar, “What to Expect in Chemicals in 2022,” focusing on themes outlined in the forecast. Join Lynn L. Bergeson, Managing Partner; Richard E. Engler, Ph.D., Director of Chemistry; and James V. Aidala, Senior Government Affairs Consultant, for this informative and forward-looking webinar.
Bergeson & Campbell, P.C. (B&C®) is pleased to announce that FIFRA Tutor™ regulatory training courses are now available at www.FIFRAtutor.com. Professionals can preview and enroll in on-demand classes to complete at their own pace and timing. FIFRA Tutor joins B&C’s existing TSCA Tutor® training courses in offering efficient and essential training for chemical regulatory professionals, and a third training program, HazCom GHS Tutor, is planned for 2022.
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) product approval process is protracted, and often challenging, for any given product. Further complicating matters are the ensuing -- often expensive -- data, recordkeeping, and advocacy requirements associated with obtaining FIFRA product approvals. These courses are intended to provide on-demand knowledge to assist with the strategic planning that is critical to global product development. The subtleties of FIFRA are presented in a clear and business-focused context.
FIFRA Tutor online training courses include video lessons and detailed handout materials, including copies of all presentations and relevant course materials from the U.S. Environmental Protection Agency (EPA) and other sources. The newly-released modules cover:
- F101 -- An Overview of FIFRA
- F102 -- Import and Export of Pesticides
- F109 -- Defining Tolerances and Their Regulation
- F110 -- Adverse Effects Reporting Requirements
Additional modules in the FIFRA Tutor curriculum will be released throughout 2022.
FIFRA Tutor courses are developed and presented by members of B&C’s renowned FIFRA practice group, which includes former EPA officials, an extensive scientific staff, and a robust and highly experienced team of lawyers and non-lawyer professionals extremely well versed in all aspects of FIFRA law, regulation, policy, compliance, and litigation.
Courses can be completed at the learner’s own pace, and enrollment is valid for one full year. Interested professionals should visit www.FIFRAtutor.com to view sample course segments and purchase modules.
Bergeson & Campbell, P.C. is a Washington, D.C., law firm focusing on conventional, biobased, and nanoscale industrial, agricultural, and specialty chemical product approval and regulation, and associated business issues. B&C represents clients in many businesses, including basic, specialty, and agricultural and antimicrobial chemicals; biotechnology, nanotechnology, and emerging transformative technologies; paints and coatings; plastic products; and chemical manufacturing, formulation, distribution, and consumer product sectors. Visit www.lawbc.com for more information.
By James V. Aidala
In early July 1996, I was returning on a flight from Amman, Jordan, wondering what kind of negotiation we in the Clinton Administration faced in completing the legislative text of what became the Food Quality Protection Act (FQPA). (I had been asked to go to Jordan to visit the Jordanian pesticide regulatory program by a friend who was a senior official at the State Department. The result of my visit may have played a very, very small role in the Middle East peace process -- but that is another story for another time).
Some weeks earlier, I had been approached by Congressional staff members whom I knew from my previous job at the Congressional Research Service (CRS) as the subject area expert on the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and pesticide regulation. I joined the Clinton Administration as a political deputy in the U.S. Environmental Protection Agency’s (EPA) Office of Prevention, Pesticides, and Toxic Substances (OPPTS, now renamed as the Office of Chemical Safety and Pollution Prevention (OCSPP)). Dr. Lynn Goldman was the Assistant Administrator who had recruited me to join the efforts to reform, that is, modernize, the Delaney Clause of the Federal Food, Drug, and Cosmetic Act (FFDCA). Over the years since it was enacted in 1958, risk assessment methods and our understanding of possible cancer risks had changed greatly.
Setting the Context
In 1989, the National Academy of Sciences issued a report on “The Delaney Paradox,” examining how the Delaney Clause ironically prevented safer new pesticides from entering the market. After an important court decision (Les v. Riley), EPA was told that even if it was undesirable public policy, the law can only be changed by Congress. As EPA went along with its work, many feared that numerous pesticides might be forced off the market even if, using modern evaluation policies, they presented little risk or were in fact safer than the alternatives.
During this time, advocacy groups were concerned that the then-current law was not protective enough of the possible risks to children’s diets. A simple way to say this is, for purposes of risk assessment: “Children are not little adults,” and supporters emphasized that dietary risk assessments by EPA should pay special attention to possible children’s risk given differences in metabolism, growth stages, and other important physiological characteristics.
This led to another National Academy of Sciences report in 1994 on “Pesticides in the Diets of Infants and Children,” which recommended that pesticide regulation include particular attention and possibly greater regulation of estimated dietary risks from pesticides. Given that the new Assistant Administrator of OPPTS was Dr. Lynn Goldman, a pediatrician, this concern was a priority for the Clinton Administration.
“The Gingrich Revolution”
A less noticed irony, but also important to the history of FQPA, is the change in party control of the House of Representatives, led by Representative Newt Gingrich (R-GA) and the “Contract with America” during the 1994 elections. Unexpectedly, the Republicans had the majority in the House for the first time in 40 years, and they elected Representative Gingrich Speaker of the House.
Much longer stories have been and will be written, but shortly after taking power in the House in January 1995, the Republicans were viewed as letting lobbyists run amok -- even suggesting amendments to environmental laws while lobbyists were sitting on the dais of Committee meetings. By the end of 1995 and going into an election year in 1996, “word was” the leadership, at least on the House Energy and Commerce Committee -- chaired by Representative Thomas Bliley (R-VA) -- was looking for a “green vote” to offset the image of an anti-environment House majority. Led by staff from the office of Chair Bliley and Representative John Dingell (D-MI), who was the senior Democrat on the Committee, a draft of a compromise bill was floated and made its way to my office at EPA.
Meantime, during the previous Congress (103rd Congress, 1993 - 1994), a team of EPA staff, led by Jim Jones (a later even more famous name in EPA pesticide regulation) of the Assistant Administrator’s office, along with staff from the Office of Pesticide Programs (OPP) and the Office of General Counsel (OGC), and staff from the U.S. Department of Agriculture (USDA) and the U.S. Food and Drug Administration (FDA) (it takes a village), had developed a Clinton Administration bill that did not gather much support during 1994. The legislation did have the core concepts of “fixing Delaney” and including the “reasonable certainty of no harm” standard, and it incorporated strong protections about possible risks from residues in the diets of infants and children.
In the new Congress (the 104th), there was some action during 1995 in the House Agriculture Committee on FIFRA issues related to antimicrobial products, minor uses of pesticides, and ways to prod the registration process to become more predictable and timely (this was before the Pesticide Registration Improvement Act (PRIA)). The FIFRA amendments were not viewed as controversial and were successfully discussed between both sides of the aisle (the Agriculture Committees were much more bipartisan in those days). By itself, that package was not likely to make it through the legislative gauntlet, given the shift in political power on the Hill.
Also in 1995, Carol Browner (the EPA Administrator) cautioned us that successful bipartisan legislation was unlikely, so not much effort should be invested, given other priorities.
The key event came in the late spring of 1996, when we first saw a draft of the legislation floated by the staff of Representatives Bliley and Dingell. It was far from perfect, but it included the core elements of what the Administration had proposed in the previous Congress. Since that earlier bill had been drafted with the coordination of EPA, FDA, and USDA, if it had the essential ingredients, we thought it might be a viable vehicle for further discussion. We also sought comment from some of the influential environmental groups that had been disappointed in the Administration’s legislation in the previous Congress. Suffice it to say, inclusion of the core elements of a tough standard (reasonable certainty of no harm) and special protections regarding children’s diets made the proposals a “possible” vehicle for further discussion.
We also started to have discussions with the staff of Representative Waxman (D-CA) in the House and Senator Kennedy (D-MA). Representative Waxman was the ranking Democrat on the Energy and Commerce Subcommittee, and Senator Kennedy was the ranking Democrat on the Labor Committee, which had jurisdiction over the FFDCA.
Back to July 1996
To shorten the story, we had intense, long meetings with the various interested parties -- pesticide registrants; environmental groups; trade associations; agency staff at EPA, FDA, and USDA; Congressional staff from the authorizing Committees; and Administration leaders within the agencies and the White House. In an amazingly short time, we came to agreement over the text, which is now FQPA. Representatives Waxman and Roberts (R-KS -- Chair of the House Agriculture Committee) held a press event about the historic compromise -- even more historic since the two Representatives rarely agreed on significant legislation. Their joint endorsement and statement of support signaled to members of both parties on both sides of Capitol Hill that this was an unusual, and important, compromise. The Congressional staff then recognized the next hurdle: the August recess was approaching fast, and if not enacted into law by then, the delay could be fatal, or at least make matters more complicated, as the multitude of interest groups would likely pick apart and want further changes to the agreement that had been reached. So the rush was on to get the “green vote” to the floor of the House and Senate.
Some last-moment hiccups took a little more time. Senator Lugar (R-IN), the Senate Agriculture Committee Chair, wanted a hearing to at least review the legislation. This was not a huge hurdle, but finding time on the floor was a race against the clock before the August recess. The House was the first to vote on July 23, 1996. The bill was approved with a surprising unanimous roll call vote in the majority Republican House (the vote was 417-0 with 16 not voting). Unanimous bipartisan support! -- imagine that in today’s world.
Then, with a sprinkling of clarifying (that is, reassuring) pieces of correspondence, the Senate agreed to the House legislation under unanimous consent. (In fact, for any trivia nuts out there, if you watch the C-SPAN video of how long the Senate deliberation lasted at the end of the day on July 24, 1996 -- the request for unanimous consent and agreement clocks in under 30 seconds.)
So with unanimous support in both the House and the Senate, FQPA was approved.
One Last Step
One very important last step was needed before FQPA became law -- the President needed to sign the legislation. That happened at the White House when H.R. 1627 was signed by President Clinton on August 3, 1996.