Regulatory Update: Unsettled Congress Creates Uncertainty, NPMA Says

FAIRFAX, VA. — Vulnerable seats in both the U.S. Senate and U.S. House of Representatives, an upcoming Presidential election that is expected to be hotly contested, and an environmental movement that is re-gaining its footing, have the potential to create legislative and regulatory challenges for pest management professionals, according to Bob Rosenberg, senior vice president of the National Pest Management Association.

“In the last seven years, we have not been terribly challenged in the legislative process,” Rosenberg said. “We had some issues where we were on offense, where we had our issues on the table. What we didn’t have was people coming after us. That changed after the 2006 election. There are people in positions of authority that have a long history of going after our industry.”

Despite significant Congressional turnover following the 2006 November election, the pest control industry has been largely unscathed. The Democratic-controlled Congress has been focused on big issues such as the war in Iraq, immigration, energy policy and budget appropriations. “Think what you will of the Democratic leadership, but they have been very disciplined and very determined,” Rosenberg said. “They have kept members in check, kept their eyes on the ball —  on the bigger issues (Iraq, immigration, etc.) —  and not allowed them to go off on tangents.”

But Rosenberg warns that may change, and that NPMA is already seeing some “chinks in the armor,” specifically challenges with the following issues.

• H.R. 2401, introduced by Rep. Joe Baca (D-Calif), legislation that would have amended the Food, Agriculture, Conservation, and Trade Act of 1990 to revise pesticide recordkeeping provisions. Originally introduced as a stand-alone bill, it was later offered as an amendment to H.R. 2419, the Farm Bill Extension Act of 2007. This amendment included several other objectionable provisions and was soundly defeated on the House floor. Had this bill passed it would have resulted in extensive recordkeeping requirements for pest management professionals. 

• Proposed school pesticide legislation similar to the School Environment Protection Act of 2005. This latest introduction, H.R.3290, was also proposed as an amendment to the Farm Bill (H.R. 2419). Ruled as germane to the Farm Bill and prevented from actually being offered on the House floor, the measure would amend the Federal Insecticide, Fungicide, and Rodenticide Act to require local educational agencies and schools to implement integrated pest management systems to minimize the use of pesticides in schools and to provide parents, guardians, and employees with notice of the use of pesticides in schools, and for other purposes.

• The U.S. House of Representatives in late September approved an amendment to H.R. 2881, the Federal Aviation Reauthorization Act of 2007 requiring airlines and ticket agents to notify passengers of insecticide treatments. Specifically, the provision reads: “No air carrier, foreign air carrier, or ticket agent may sell in the United States a ticket for air transportation for a flight on which a insecticide has been applied in the aircraft within the last 60 days or on which an insecticide is planned to be used in the aircraft while passengers are on board the aircraft unless the air carrier, foreign air carrier, or ticket agent selling the ticket first informs the person purchasing the ticket of the application, application, or planned use of the insecticide, including the name of the insecticide.” Some members vehemently opposed the amendment, including Thomas E. Petri (R-WI), who outlined many of the same concerns of the pest control industry. “For example, notifying a passenger when buying a ticket whether an insecticide has been used on the plane in the last 60 days before the flight is a procedural nightmare for airlines. Is it really a national problem that requires such onerous regulation?” Petri asked. “How many flights would that plane have taken and in what countries? It's just incredible.” Rosenberg said he is optimistic that this amendment will be killed in the Senate, “but these are the type of things we haven’t seen in a very, very long time. We are starting to see them crop up again.”
   

Looking ahead, PCOs will want to pay particular attention to the 2008 election, not only because of the Presidential election, but because of the Congressional seats up for grabs. Should Democrats gain further control of both houses, they can potentially push through significant amounts of legislation, some of which could impact the pest control industry.

Rosenberg encouraged PCOs to start developing relationships now and a good place to start is the upcoming NPMA Legislative Day, set for March 3-4 in Washington. “The time to start developing relationships with members is not when there is a crisis – when there is a bill on the floor tomorrow – it’s too late by then. You need to establish that relationship by the time that emergency has occurred. This Legislative Day and Legislative Days in the foreseeable future will be among the most important.”

For more information about Legislative Day visit http://www.npmapestworld.org/events/ or call (800) 678-6722.

ARIZONA SPCC UPDATE.In other regulatory news, Arizona is in the process of transferring to another department regulatory responsibility of structural pest control following a recommendation from a key legislative panel in late October that the state’s Structural Pest Control Commission be abolished.

Members of the legislative panel felt the SPCC was plagued by a variety of problems, including inefficiency and personnel issues. The agency, The agency, which consists of a seven-member appointed commission that oversees a staff of approximately 35 inspectors and other personnel, was headed by Executive Director Lisa Gervase, who was fired in October.

NPMA Director of Government Affairs Gene Harrington said that the Commission is likely to be abolished on June 30, 2008, and that between now and then the Arizona Legislature will approve legislation shifting the SPCC’s powers and duties to another state agency.

Harrington said whenever the decision is made, NPMA will be working with legislators to ensure that the new regulatory structure is sound. “We want to ensure that structural pest control does not become ignored and lost in the shuffle,” Harrington said. “Anytime something like this happens there are concerns that it will lead to de-regulation and an explosion of fly-by-night companies. We are going to work with legislators and others to make sure those fears aren’t realized.”

DHS APPENDIX A PUBLICATION.Rosenberg and Harrington also provided an update on the impact of the recent publication of the Department of Homeland Security (DHS) final "Appendix A: DHS Chemicals of Interest," which is available on the department's Web site, www.dhs.gov.

The two Department-issued documents are the Final Rule and the Final Appendix, which lists chemicals of interest.

Last winter DHS proposed screening threshold quantities of 2,000 pounds for aluminum and magnesium phosphide and any quantity for sulfuryl fluoride, methyl bromide and chloropicrin. DHS listed for the threshold screening quality for sulfuryl fluoride, methyl bromide and chloropicrin as zero, which meant that any physical location where any amount of these products were stored at any time had to submit a top screen (a consequence screening questionnaire). “There are approximately 200,000 structural fumigations each year, so what this would have meant was that each of the houses where (sulfuryl fluoride, methyl bromide and chloropicrin) were used would have to submit a top screen,” Rosenberg said. NPMA worked with DHS officials and in the revised Appendix A, DHS determined that those chemicals did not pose a threat and dropped them from the list entirely.

Unfortunately, included in the Final Rule was a the requirement of a top screen for those in possession of  aluminum or magnesium phosphide, either in a commercial grade or in an amount that would require placarding under DOD regulations. “We are interpreting the rule that if you are in possession of any quantity of aluminum or magnesium phosphide you will need to submit to a top screen,” Rosenberg said.

“We’ve had additional discussions with DHS and they have been willing to listen to industry concerns and they made it fairly clear that their intention is not to capture the user of these chemicals and are exploring regulatory options,” Rosenberg said. “It’s possible that the Department could issue supplemental guidance in the next several weeks.”