Sens. Chambliss & Roberts want action on Obama's pledge to rein in federal regulations

By Jon H. Harsch

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, Jan. 26 - Sens. Saxby Chambliss, R-Ga., and Pat Roberts, R-Kan., respectively the outgoing and expected incoming Ranking Member of the Senate Agriculture Committee, sent a letter Wednesday urging the federal Office of Management and Budget (OMB) to reduce “burdensome and ineffective regulations impacting farmers, ranchers and rural America.”

The letter to Cass Sunstein, OMB's Administrator of the Office of Information & Regulatory Affairs (OIRA), follows President Obama's regulatory reform executive order, his Wall Street Journal article, and his State of the Union pledge that “When we find rules that put an unnecessary burden on businesses, we will fix them.” The senators provided a list of regulations and proposals they want OIRA to treat as priorities for review, charging that unless changes are made, these regulations “will have a substantial and unjustifiable cost on production agriculture and rural communities across our nation.”

In the letter, the senators ask for assurance that the administration will review the actions by the U.S. Department of Agriculture (USDA) and the Environmental Protection Agency (EPA) and swiftly implement corrective action. The senators also state that “We are fully supportive of any effort to reduce burdensome and ineffective regulation.”

The full text of the letter to Administrator Sunstein is below:

January 26, 2011

The Honorable Cass Sunstein
Administrator
Office of Information and Regulatory Affairs
The Office of Management and Budget
725 17th Street, NW
Washington, DC 20503

Dear Administrator Sunstein:

We write as a follow-up to your recent conversation with Senator Chambliss regarding the grave concerns we have about a significant number of regulatory proposals by the Obama Administration. These proposals will impact the U.S. agriculture industry as well as jobs and wealth creation in rural America. We are most interested in the executive order released last week by President Obama and, importantly, the impact of this measure as it is implemented by leadership at the Department of Agriculture and Environmental Protection Agency.

Globally Positioned Agriculture

As stated in the executive order, “some sectors and industries face a significant number of regulatory requirements, some of which may be redundant, inconsistent, or overlapping.” Furthermore, the executive order mandates that “…each agency shall attempt to promote such coordination, simplification and harmonization” across agencies. Agriculture is such an industry under the jurisdiction of multiple agencies where coordination is necessary to ensure the executive order's goal of “economic growth, innovation, competitiveness, and job creation.”

We are fully supportive of any effort to reduce burdensome and ineffective regulation.

Therefore, we wish to draw your attention to the following measures which we believe will have a substantial and unjustifiable cost on production agriculture and rural communities across our nation. In addition to expressing our continued concern about these provisions, we hereby request a review and subsequent analysis by your office as to whether each of these proposals is consistent with the essence and requirements of the January 18th executive order. Finally, once such analysis is complete, we ask that your staff be made available to present your findings to our staff and the staff of other Senators concerned about these matters.

Thank you for your prompt attention to this request.

Sincerely,

U.S. Senator Saxby Chambliss
U.S. Senator Pat Roberts

REGULATORY ACTIVITY OF CONCERN FOR AGRICULTURE AND RURAL AMERICA

(A) EPA

(1) PESTICIDES

a. NPDES permits- This is scheduled to go into effect on April 9, 2011. It will require 5.6 million applications of pesticides by 365,000 applicators to have NPDES permits to apply pesticides. It will cost $50 million and require one million hours per year to implement. http://cfpub.epa.gov/npdes/home.cfm?program_id=410

b. Atrazine - In the fall of 2009, in response to a New York Times article, EPA announced an unscheduled re-review of atrazine. Atrazine was favorably reviewed by EPA in 2006 and is scheduled to begin registration review in 2013. EPA's decision on atrazine could establish a precedent for other pesticides. http://www.epa.gov/opp00001/reregistration/atrazine/

c. Endangered Species Act - Courts are imposing arbitrary limits on pesticide use, mostly by requiring large buffers along streams, in order to protect endangered species. The uncertainty that these actions have created is then greatly exacerbated by the Administration's failure to establish a process through which the U.S. Fish and Wildlife Service and National Marine Fisheries Service can consult with EPA on endangered species issues as they are required to do by statute. Such failure to coordinate is creating serious jeopardy for agriculture as environmental groups recently filed suit against EPA alleging that its pesticide regulatory process does not take into account the effects of pesticides on endangered species.

http://www.epa.gov/espp/ http://www.biologicaldiversity.org/news/press_releases/2011/pesticides-01-20-2011.html

d. Risk Assessment Process/Precautionary Principle - In December 2009, EPA proposed to revise its risk assessment methods related to agricultural workers, their children and pesticides with no food uses. This is a significant change to the agency's risk assessment methodology and is not required by FIFRA. It would add an additional ten-fold safety factor for occupational risk. http://www.epa.gov/pesticides/health/worker-rsk-assmnt.html

(2) WATER

a. Clean Water Act Strategy - In 2009, EPA began to develop a series of aggressive Clean Water Act initiatives. Agriculture is the chief focus of the effort. The problem is not that EPA is developing new strategies and plans for improving water quality, but it is how the agency is going about doing it. Agriculture has not been impressed with the promises of openness and transparency. Agriculture groups are routinely not included in meetings and strategy sessions and the groups' concerns about hasty decision making without thorough analysis are frequently dismissed. For example, only a few from the agriculture community were invited to attend EPA's strategy workshop held in August 2010.

http://blog.epa.gov/waterforum/2010/08/draft-clean-water-strategy-is-released/

b. Numeric Nutrient Criteria - Under a settlement agreement with an activist group, EPA has taken over the development of numeric nutrient criteria (NNC) for Florida's waters. NNC are a subset of EPA's technical water quality standards program. Florida estimates the total capital cost of EPA's criteria will range from $47 to $98 billion over 30 years. At this time, 44 states have criteria under development. http://yosemite.epa.gov/opei/RuleGate.nsf/6c93b95a7f1614c1852576b70060eb51/355215442d406485852576da0076d5cb!OpenDocument

c. Water Quality Standards Rulemaking - On July 30, 2010, EPA announced it will propose amendments to the Water Quality Standards program. EPA plans to strengthen anti-degradation standards, adopt a presumption that all U.S. waters should be fishable and swimmable, and require state decisions to be approved by EPA. In effect, this proposal would federalize decisions historically made by the states under the Clean Water Act. http://water.epa.gov/lawsregs/lawsguidance/wqs_index.cfm

d. Chesapeake Bay Total Maximum Daily Load (TMDL) - EPA is seeking expanded authority to implement plans to restore the Bay. Part of this effort is setting a stringent total maximum daily load (TMDL). TMDLs are allocations by sector of allowed discharges to certain water bodies. This will subject producers in the Bay states to more regulation than producers in other states. The Bay TMDL is expected to be used as a model for other water bodies, such as the Mississippi River in the Midwest and the Puget Sound in the Pacific Northwest. http://www.epa.gov/chesapeakebaytmdl/

e. CAFOs - A new regulation is planned for summer 2011. It is expected to require small and medium Concentrated Animal Feeding Operations (CAFOs) to obtain permits and the use of more aggressive nutrient management plans. It also will include a presumption that all CAFOs discharge, thus subjecting them to permitting requirements. http://www.epa.gov/npdes/pubs/cafo_implementation_guidance.pdf

(3) AIR

a. PM 10/Dust - EPA is preparing to reconsider its large particulate matter (PM 10) standard. EPA's Clean Air Advisory Committee has recommended lowering the standard. This is problematic because the current standard is already difficult for many rural counties, especially in the West, to meet. http://www.epa.gov/ttn/naaqs/standards/pm/s_pm_index.html

b. Greenhouse Gas Regulations - EPA is swiftly moving ahead with a suite of regulations concerning greenhouse gas emissions. In the short term, they will affect agriculture by creating additional uncertainty and slowing the recovery of the economy. In the long term, they will raise production costs for producers and agricultural businesses. http://www.epa.gov/climatechange/initiatives/index.html

(4) OTHER

a. Dioxin Risk Assessment - EPA is considering a cancer risk factor that will cause nearly all agricultural products to exceed the agency's level of concern. Since 2000, the incidence of dioxin contamination has dropped 90 percent. http://cfpub.epa.gov/ncea/CFM/nceaQFind.cfm?keyword=Dioxin

b. Arsenic Risk Assessment - EPA is considering a cancer risk factor that will cause virtually all soils to exceed the agency's target risk range. This means rice, wheat, corn meal, peanuts, apples, lettuce, carrots, onions, sugar, and tap water would be considered unsafe. http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=219111

c. Urea Risk Assessment - Urea is widely used in fertilizers as a source of nitrogen. It also is an important raw material for the chemical industry. In September, EPA announced a 60-day public comment period and a public listening session on November 16 for the external review of the draft human health assessment on urea. http://cfpub.epa.gov/ncea/iris_drafts/recordisplay.cfm?deid=214771

d. Fly Ash Regulation - EPA's preferred approach for regulation of fly ash is to declare it hazardous waste. This would end all beneficial uses of fly ash, including agricultural uses. Currently, it is used as a soil amendment and research shows it can be used at field borders to better capture phosphorus runoff. http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/4eca022f6f5c501185257719005dfb1b!OpenDocument

(B) DEPARTMENT OF AGRICULTURE

(1) Biotechnology- Recently, USDA convened a forum of stakeholders to discuss alfalfa co-existence and conflicts between supporters and critics of agriculture biotechnology. In proposing a “partial deregulation” with isolation distances and geographic restrictions based entirely on perceived economic consequences resulting from the commercialization of genetically engineered alfalfa, the Department has introduced political considerations that exceed their statutory authority to regulate the introduction and movement of plant pests. The integration of the co-existence discussion within the regulatory process signals the Department's willingness to elevate the precautionary principle as a fundamental tenet of decision making rather than established procedures as set forth by years of science based risk assessment. The Department plans to issue a record of decision on GE alfalfa the week of January 24th. http://www.aphis.usda.gov/biotechnology/alfalfa_documents.shtml

(2) Trade- USDA intends to propose modifications to the Foreign Market Development and Market Access Programs that have the potential to reduce their effectiveness in increasing U.S. exports. At present, these programs are operating optimally and fulfilling all of the goals of the President's National Export Initiative by including small and medium-sized enterprises as required by law.

(3) Livestock marketing- In June of last year, the Grain Inspection, Packers and Stockyards Administration (GIPSA) published a proposed rule that would make historic changes in the rules governing production and marketing of livestock. The draft rule has come under significant criticism from industry as well as Congress as to substance and a lack of economic analysis conducted before the proposal was published. http://archive.gipsa.usda.gov/rulemaking/fr10/06-22-10.pdf

(4) Crop insurance- In early January, the Risk Management Agency (RMA) unveiled a proposed rule that would reward farmers participating in the federal crop insurance program for good performance. As proposed by RMA, the “Good Performance Refund” Program does not appear to meet the spirit of the new executive order. First, instead of utilizing an electronic delivery mechanism that is already in place, the proposal would require the Treasury or USDA to issue hard copy checks to eligible producers. Secondly, the proposal fails to comply with the statutory requirement that producer performance be based on region. By failing to take geographical differences under consideration, RMA's proposal disproportionately benefits producers in regions with favorable weather conditions. Finally, the agency has allowed only 15 days for public comment. http://www.rma.usda.gov/regs/2011/gprpr.pdf

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