FIFRA Amendment: Agricultural Interests Make Some Inroads at Expense of Environment

In mid-November 1975, a congressional conference committee¹ finally settled a bitter conflict which had broken out last summer between conservationists and farming interests over federal pesticide policy. The focus of the adversaries' well-prepared legislative campaigns, which quickly polarized the houses of Congress, was the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA),² the funding authorization for which was due to expire November 15.

Agricultural groups and pesticide manufacturers objected primarily to FIFRA's original transfer of pesticide control power from the Secretary of Agriculture (Secretary) to the Administrator of the Environmental Protection Agency (Administrator). They claimed that this had deprived agricultural interests of adequate representation in the Administrator's pesticide control decisions, including cancellation of DDT, aldrin and dieldrin, and suspension of chlordane and heptachlor.³ Other major issues included composition of a newly-mandated scientific advisory panel, alleged burdensomeness of the Administrator's standards for certifying private applicators' knowledge of the dangers of highly toxic pesticides and retroactivity of FIFRA's provision requiring a pesticide registrant to [6 ELR 10032] pay reasonable compensation to an earlier registrant for reliance on his test data.

Advance Notification of USDA

Adequacy of farming interest representation in the decision-making process became the central issue. The anti-EPA forces, led by the National Farm Bureau Federation and the National Agricultural Chemical Association, sought⁴ to give the Secretary veto power over any pesticide classification decision or regulation proposed by the Administrator. After a media battle in which the merits of the DDT ban were hotly debated,⁵ the House Agriculture Committee reported out and the House passed a substitute version of H.R. 8841. It deleted the veto provision and instead required EPA to give the USDA advance notice of proposed notices of pesticide classification changes under § 6 (including cancellation and suspension), and of proposed and final implementing regulations under § 25(a). Such notice must also go to a new scientific advisory panel and, in the case of regulations, to the congressional agriculture committees. It must be given at least 60 days in advance of contemplated publication in the Federal Register. Should the Secretary or the advisory panel comment in writing on the EPA's proposed action within 30 days of receipt, such comments, together with the EPA's response and its initial proposal, must be published in the Federal Register.

The Senate amended the notification provisions to require Federal Register publication of EPA's proposals at the time of their submission to the Secretary and the scientific advisory panel. This proposal was, however, deleted in conference. The conference committee also rejected a Senate amendment which would have broadened the grounds for EPA's waiver of the 60-day notice requirement. The House version had restricted waiver to situations in which the Administrator determines that a pesticide poses an imminent threat to human health. The Senate would have included as well those in which he finds an imminent threat to the non-human environment.

The Senate did, however, succeed in modifying one House amendment, which established a scientific advisory panel to review the Administrator's proposed pesticide control decisions. The House had simply specified that the Administrator was to choose a panel of seven persons from a roster of twelve nominees, half suggested by the National Institutes of Health and half by the National Science Foundation. The Senate modifications, which authorize the Administrator to require, inter alia, Federal Register publication of panel members' names and professional affiliations, are designed to assure that advisory committee members will reflect a balanced representation of interests and avoid conflicts of interest.

"Self-Certification" for Private Applicators

Perhaps the most significant substantive change wrought by H.R. 8841 in the balance of environment/health versus economic interests involves FIFRA's provision for ensuring competent handling of "restricted use" pesticides, i.e., those judged most highly toxic by the Administrator. In 1972, § 4 of FIFRA was amended to give the Administrator authority to require that these substances be used only by or under the direction of "certified" applicators. In order to be certified, applicators had to demonstrate familiarity with the risks posed by such substances.

Agricultural interests have objected to what they view as cumbersome requirements for certification of "private" applicators; these are usually farmers who apply pesticides to their own crops. In response to these complaints, the House passed and the conference committee accepted an amendment which authorizes a "self-certification" system for private applicators. The amendment permits any private applicator to certify himself as knowledgeable about and competent to handle any restricted pesticide simply by signing an affirmation to that effect. The amendment specifically forbids the Administrator to impose a requirement that private applicators "take … any examination to establish competency in the use of the pesticide." Although the conference committee clearly stressed that this language does not preclude imposition of such a testing requirement by individual states, it is unlikely that any farm state will do so. After all, it was the farm belt legislators who secured passage of this provision. In short, the effect of self-certification is to remove any requirement for real training of many persons who will be applying dangerous pesticides.

Compensation for Test Data Use

The last major issue, hotly contested because of its economic significance to registrants, concerned retroactive application of § 3(c)(1)(D) of FIFRA, which requires any applicant for registration who relies on test data previously submitted by another applicant to pay to the latter reasonable compensation for such use. After strenuous debate, the conferees agreed on a compromise measure, which makes compensable all data adduced in support of any application submitted on or after January 1, 1970. However, the obligation to make compensation for use of this data applies only with respect to applications for registration or re-registration submitted on or after October 21, 1972.

The resolution of the major issues arising out of the FIFRA amendment process makes evident the strength of the pro-pesticide forces in Congress. That these should have significant power in the political arena is not surprising.⁶ After all, they represent immediate, quantifiable, and economically significant interests, and, in consequence, are well-organized. On the other [6 ELR 10033] side are diffuse concerns about latent, low-frequency risks to human health and the non-human environment, interests which have traditionally suffered from under- or non-representation in the political process. Viewed in this context, FIFRA's environmental provisions showed remarkable strength and resiliency under the pressure of a determined and experienced pesticide lobby.

1. The conference report, H.R. Rep. No. 94-668, "Extension of the Federal Insecticide, Fungicide, and Rodenticide Act," was issued November 15, 1975. Both houses then passed the bill, H.R. 8841, as amended, and the President signed it on November 28, 1975, Public Law 94-140, 89 Stat. 751. Copies of the law are available from ELR, ELR Order No. L-1002 (5 pp. $0.75). The ELR print of FIFRA, ELR 41301, reflects these amendments.

2. 7 U.S.C. §§ 135-136y, ELR 41301. The conferees agreed on an 18-month extension of FIFRA's authorization.

3. The Administrator's suspension of chlordane and heptachlor was not ordered until late December. See Comment, Imminent Hazards from Pesticides: EPA Administrator Suspends Major Uses of Heptachlor and Chlordane, 6 ELR 10029 (Feb. 1976).

4. H.R. 8841, introduced last summer by Reps. W. R. Poage (D.-Texas) and William C. Wampler (R.-Va.).

5. Both EPA and environmental groups emphasized the ban's beneficial impact on humans and wildlife, citing a new EPA study which shows decreasing concentrations of DDT in human tissues, the food supply and in shellfish. The other side laid stress on the economic impact of the ban on farming. In addition, an Idaho congressman on the House Agriculture Committee attempted to link the DDT ban to last summer's outbreak of encephalitis.

6. Cf. Quarles, "Fighting the Corporate Lobby," Environmental Action, Dec. 7, 1974, p. 3.