Tuesday, April 18, 2017

HR 1891 Introduced – Methyl Bromide

Earlier this month Rep. LaMalfa (R,CA) introduced HR 1891, the Safe Agriculture Production Act of 2017. The bill would authorize the continued use of methyl bromide as a pesticide and/or fungicide for certain emergency uses. The bill is essentially identical to HR 3710 from the 114th Congress. That earlier bill saw no action.

LeMalfa and his 10 cosponsors (9 Republicans and 1 Democrat) are all from agricultural districts that were presumably affected by the phase out of methyl bromide under the Montreal Protocol to Protect the Ozone Layer as enforced by 40 CFR Part 82. 2017 is the first year that there are no authorized essential uses for methyl bromide and its manufacture, importation or use in the United States is generally outlawed.

As I outlined in my blog post about HR 3710, the bill would amend 7 USC 7719 concerning the agricultural uses of methyl bromide. The amendment is in effect a complete re-write of §7719. Something that I failed to mention in that earlier post is an important provision of §7719 that was not included in the new rewrite in this (or the earlier) bill. That provision was found at §7719(d)(2):

“Nothing in this section shall be construed to alter or modify the authority of the Administrator of the Environmental Protection Agency or to provide any authority to the Secretary of Agriculture under the Clean Air Act (42 U.S.C. 7401 et seq.) [link added] or regulations promulgated under the Clean Air Act.”

This type verbiage is typically added when there is a conflict between the authorities and responsibilities of two different sections of the Executive Branch. The removal of this language in the rewrite of §7719 and the inclusion of the “Notwithstanding any other provision of law…” verbiage in the new §7719(f) is effectively intended to remove the EPA from any regulation of methyl bromide in the ‘emergency’ situations broadly outlined in the bill.

The lack of any action in the last session on the previous version of this bill is a pretty good indicator that bill is unlikely to be considered in this session. There is, however, more incentive for the sponsors of this bill to push for action since methyl bromide use is completely disallowed for the first time this year. The replacement chemicals are not as effective as methyl bromide and many farmers and agricultural importers are going to be bothering these representatives for some sort of relief.

Even given that, I see little chance that this bill will make it through the legislative process. Passage may be possible in the House, but the bill would never make it to the floor in the Senate. The only chance that I see this making it into law is if it was included in the agriculture authorization bill, and that chance is fairly remote seeing that Rep. Conaway (R,TX; the Chair of the House Agriculture Committee) did not allow any action on the previous version of the bill in his Committee in the 114th Congress.

As always, my concern with this bill lies in the failure of DHS to include methyl bromide (a toxic inhalation hazard chemical) in its list of chemicals that would trigger a Top Screen reporting requirement under the Chemical Facility Anti-Terrorism Standards (CFATS) program. This is the only TIH chemical not on that list and it was specifically removed because it was being phased out by Montreal Protocol.

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