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Hidden Gems in the Farm Bill

By Nathan Fretz

After three years of work, Congress passed the Agricultural Act of 2014 (the “farm bill”), which the President signed into law on Friday, February 7.  Despite a tumultuous and partisan 2012 and summer of 2013, the farm bill conference report was approved by conferees and sailed through the House and Senate with the bipartisanship that traditionally accompanies a farm bill.

Over a series of blog posts, we will focus on various provisions of the farm bill, with a particular focus on some of the provisions that may not have received the same attention as others, yet are important nonetheless.  Today, we will begin with a look at some of the so-called “regulatory reform” provisions in the bill, many of which originated in the House-passed farm bill and were aimed at curbing the Environmental Protection Agency’s (EPA) regulatory actions that could significantly and negatively impact agriculture.

EPA’s Science Advisory Board

One regulatory reform provision that may prove to be critical to all of agriculture establishes a standing agriculture-related committee within EPA’s Science Advisory Board (sec. 12307).  Once active, the committee will provide the Board with scientific and technical advice on issues that have a significant impact on agriculture.  Importantly, the Secretary of Agriculture must be consulted on appointments to the agriculture-related committee, and the Board must operate in a transparent manner and maximize public participation.  Finally, the EPA Administrator must report annually to Congress on the membership and activities of the agriculture-related committee.

For the agriculture community that is desperate for a voice within EPA and for increased transparency into the EPA decision-making process, the establishment of an agriculture-related committee within the Science Advisory Board is a significant victory, and one that has not garnered the attention it warrants.  Agriculture groups should immediately consider potential nominees for the committee, and should make those names known to the Secretary of Agriculture, the EPA Administrator, and the House and Senate Agriculture Committees.  The agriculture community has demanded that EPA consider its interests, and having a standing committee on the Science Advisory Board to provide input from agriculture’s scientific perspective is a significant first step.

NPDES Permits for Silviculture Activities

The farm bill also addresses the issue of forest roads and National Pollutant Discharge Elimination System (NPDES) permits (sec. 12313).  The farm bill amends the Clean Water Act (CWA) to exempt certain silviculture activities from the NPDES permit requirements.  Specifically, an NPDES permit will not be required for discharge from runoff from the following activities: nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations surface drainage, or road construction and maintenance.  The provision stipulates, however, that the exemption does not apply to dredge or fill materials under section 404 of the CWA, or to existing NPDES permitting requirements under section 404.

Food Safety Modernization Act Rulemaking

The farm bill responds to some of the concerns agriculture producers have raised related to the Food and Drug Administration’s (FDA) proposed rules to implement the Food Safety Modernization Act (sec. 12311).  The conference agreement requires that when publishing the final rule on “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption”, the Secretary of Health and Human Services include scientific and economic analyses of the impacts the final rule will have on agriculture, as well as a plan for evaluating and responding to the impact of the final rule once it becomes effective.

FDA has clearly received the message that the agency must address the issues raised by producers when finalizing the food safety rules.  However, producers must continue to present their ideas and concerns to FDA, and fully participate in both the final rulemaking process and the development of the scientific and economic analyses to ensure that the rules have a rational basis and are capable of being implemented by producers.  For the regulators at FDA, agricultural production is new territory.  As a result, FDA must be educated on the processes involved in production and bringing product to market to ensure that regulations make sense, can be implemented without disrupting the production system, and actually improve food safety.

Sulfuryl Fluoride

Finally, the farm bill responds to EPA’s 2011 proposed order regarding sulfuryl fluoride (sec. 10015). Under the proposed order, EPA began to take steps towards a phased-down withdrawal of the pesticide sulfuryl fluoride, which is commonly used in food storage and processing facilities, as well as for the control of insect pests in stored grains, coffee and cocoa beans, dried fruits and tree nuts.  The farm bill directs EPA to exclude nonpesticideal sources of fluoride from aggregate exposure assessments when assessing tolerances associated with residues from the pesticide.

Sulfuryl fluoride is a critical fumigant used to treat a variety of products at storage facilities, and, importantly, is the last such fumigant available for a variety of products.  The farm bill provision will require EPA to conduct a new risk assessment, which is likely to lead the agency to withdraw its proposed order.  However, it will be critical for the food product industry to monitor the risk assessment process, as well as to respond to potential litigation from groups seeking to ban sulfuryl fluoride.

While the provisions discussed here have not received the media attention of others in the farm bill, they represent important compromises to come out of the conference committee.  The doors at EPA and FDA are being opened, and it is up to the agriculture and food product communities to provide their input and concerns to the agencies.

Nathan Fretz joined OFW Law on Monday, February 3. Prior to joining OFW Law, Nathan was counsel for the House Agriculture Committee.  He previously worked at the U.S. Department of Agriculture’s Food Safety and Inspection Service.

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