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December 18, 2018

Congress Passes Farm Bill Conference Report

Bergeson & Campbell, P.C.

On December 12, 2018, the House passed the Conference Report for H.R. 2 (the Agriculture Improvement Act of 2018, also known as the Farm Bill) to provide for the reform and continuation of agricultural and other programs of the United States Department of Agriculture (USDA) through fiscal year 2023. The Senate passed the Conference Report on December 11, 2018.

Sec. 10101. Specialty crops market news allocation.

Sec. 10102. Local agriculture market program.

Sec. 10103. Organic production and market data initiatives.

Sec. 10104. Organic certification.

Sec. 10105. National organic certification cost-share program.

Sec. 10106. Food safety education initiatives.

Sec. 10107. Specialty crop block grants.

Sec. 10108. Amendments to the Plant Variety Protection Act.

Sec. 10109. Multiple crop and pesticide use survey.

Sec. 10110. Report on the arrival in the United States of forest pests through restrictions on the importation of certain plants for planting.

Sec. 10111. Report on plant biostimulants.

Sec. 10112. Clarification of use of funds for technical assistance.

Sec. 10113. Hemp production.

Sec. 10114. Interstate commerce.

Sec. 10115. FIFRA interagency working group.

Sec. 10116. Study on methyl bromide use in response to an emergency event.

The Farm Bill might be better understood for what it does not include, as opposed to what it addresses. Unaddressed issues include:

No Enactment of the Pesticide Registration Improvement Enhancement Act of 2017: While the House version of the Farm Bill included the enactment of the Pesticide Registration Improvement Enhancement Act of 2017 (H.R. 1029, Section 9119), the Senate version contained no comparable provisions. The final Conference substitute deleted the House provisions.

No Amendments to National Pollutant Discharge Elimination System (NPDES) Requirements for Pesticides: The House version of the Farm Bill included amendments to: (1) Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 3(f) that would direct the U.S. Environmental Protection Agency (EPA) and states not to require permits under the Federal Water Pollution Control Act for a discharge from a point source into navigable waters, and (2) Section 402 of the Federal Water Pollution Control Act to add new subsection(s) preventing EPA or a state from requiring a permit for a discharge into navigable waters of a pesticide authorized under FIFRA except under listed circumstances. The issue of eliminating NPDES permits for FIFRA-registered pesticides has been a major issue for the agricultural industry since 2009, when a U.S. Circuit Court decision required EPA to regulate pesticides under the NPDES program. Despite criticism that such requirements are duplicative and unnecessary for pesticides applied in accordance with FIFRA, attempts to pass legislation that would eliminate NPDES permitting for FIFRA-compliant pesticides applications have not been successful to date. 2018 is no exception, as the Senate version contained no comparable provision regarding NPDES amendments and the final Conference substitute deleted the House provisions.

No Amendments to Reform the Endangered Species Act (ESA) Consultation Process: The House version of the Farm Bill included amendments to various sections of FIFRA (e.g., Sections 3(c)(5), 3(c)(7), 3(g)(1)(A), 5(a), 6(b)) that would require EPA when taking action related to a pesticide (e.g., register, amend a registration, review the continued registration of a pesticide, issue an experimental use permit (EUP), cancel) if it determines that the pesticide, when used in accordance with widespread and commonly recognized practices, is not likely to jeopardize the survival of a federally-listed threatened or endangered species or to alter habitat critical for the survival or recovery of such species. Importantly, the House version of the Farm Bill would have clarified that EPA shall not be required to consult or communicate with the Secretary of the Interior or the Secretary of Commerce under the authority of any other statute when making such determination, unless otherwise petitioned by the registrant of the pesticide. Industry has long advocated that the current process, requiring consultation with the National Marine Fisheries Service or the U.S. Fish and Wildlife service on actions that might impact endangered species, has created a cumbersome process resulting in significant delays, litigation, and unpredictability.

Instead, the Farm Bill requires the establishment of an interagency working group, to be comprised of representatives from USDA, the Department of Commerce, the Department of the Interior, the Council on Environmental Quality, and EPA, to provide recommendations regarding, and to implement a strategy for improving, the consultation process required under ESA Section 7 for pesticide registration and registration review. The goal of this process is to make the ESA review process more efficient and predictable for the federal agencies involved and affected stakeholders.

Lastly, the Senate version contains no comparable provision regarding the NPDES amendments, and the final Conference substitute deleted the House provision.

In addition to the requirements for an interagency process to improve the ESA implementation process, the Farm Bill includes Section 10111, which requires USDA to submit, no later than one year after enactment of the Farm Bill, a report that “identifies any potential regulatory, non-regulatory, and legislative recommendations, including the appropriateness of any definitions for plant biostimulant, to ensure the efficient and appropriate review, approval, uniform national labeling, and availability of plant biostimulant products to agricultural producers.” For purposes of the report, Congress provides that USDA should consider a “plant biostimulant” to be a “substance or micro-organism that, when applied to seeds, plants, or the rhizosphere, stimulates natural processes to enhance or benefit nutrient uptake, nutrient efficiency, tolerance to abiotic stress, or crop quality and yield,” although USDA has the authority to modify this description as appropriate.

Biostimulant Report Provision

The requirement for issuance of a biostimulant report is a welcome development for many in the agricultural industry. This area has long been recognized as a jurisdictional grey area for the emerging technology of biostimulants. FIFRA Section 2(v) defines a “plant regulator” as “any substance or mixture of substances intended, through physiological action, for accelerating or retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of plants or the produce thereof, but shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments.”

Currently, it is not clear where biostimulants fall between a “plant regulator” that is subject to FIFRA Section 3 pesticide registration requirements, and products including “plant nutrients, trace elements, nutritional chemicals, plant inoculants, and soil amendments” that are specifically excluded from the definition of plant regulator and thereby FIFRA Section 3 pesticide registration requirements. The lack of clarity has continued in part by the lack of EPA guidance on permissible label claims for biostimulants. EPA’s Biopesticides and Pollution Prevention Division (BPPD) has been developing draft guidance for several years, but no document has been released for comment or otherwise.

USDA is required under the Farm Bill’s provision to consult with EPA, states, industry, and other stakeholders in developing its report. It is imperative for those in the agricultural industry with “biostimulant” products to engage with USDA and EPA to ensure this report accurately captures the issues related to this technology and why the jurisdictional line should confirm that a plant biostimulant should not be considered to be a pesticide or a plant growth regulator under FIFRA or otherwise subject to FIFRA registration.