Both the Plant Board and the Arkansas Agricultural Aviation Association (AAAA) have “rough” bills that could be polished and then introduced to the Arkansas legislature soon. Currently, in regards to pesticides, the Plant Board regulates the farmer and applicator. But no one, say critics, regulates “spoken” recommendations made by crop consultants standing between the two.

The aerial applicator bill

Ron Harrod, executive director for AAAA, says the genesis for his proposed bill was an outbreak of armyworms in wheat in the 2001. At the time, Fury was recommended for use on the pest by consultants or company reps working in eastern Arkansas. An uproar ensued after it was discovered that Fury had no label for wheat. In fact, at one point, it was thought a vast portion of Arkansas’ wheat crop would be deemed unusable due to co-mingling contamination. The ordeal left many farmers and aerial applicators with a bitter taste and hearings to attend.

“Following the Fury deal (the Plant Board) held some hearings,” says Harrod. “Three of the affected farmers actually broke down during the hearings. They were distraught because they didn’t know what had been put on their crop until the Plant Board sent them a summons.

“Even after all that, there’s resistance to regulating crop consultants. What’s interesting is the resistance isn’t coming from the professional consultants that charge by the acre. The resistance is coming from people who sell the chemicals. They don’t want to be accountable for the recommendations they make while selling chemicals – which is what happened with the Fury.”

Harrod relates another incident. An aerial applicator in Marvell, Ark., had a chemical company consultant come to his home and put Fury in the back of his pick-up. The consultant said he’d have the pertinent label information the next day. In the meantime, he suggested the applicator go ahead and spray wheat with it before armyworms ate up the crop.

“The applicator did what was suggested. The farmer didn’t know what was being put out and the applicator thought it was all covered because the chemical company rep told him it was okay. Of course, it turned out Fury didn’t have a label for wheat. The end to the story is the farmer got fined, the applicator got fined and the chemical rep (whose company ended up buying the contaminated wheat) got off Scot-free. Now something is wrong with that picture,” says Harrod.

The reasons given for not adopting the rules changes are, says Harrod, born out of “craziness or laziness – maybe both. They say, ‘I don’t have time to go out and look at every field. I might be driving down the road and someone calls me wanting recommendations for what to put on their field. Well, I don’t know what’s right across the turn-row. I just don’t know and I don’t have time to visit all these fields.’”

As the new legislative session kicked off, Harrod started visiting state politicians. So far, he’s got about a dozen sponsors.

“I’m going to have 51 sponsors before it’s introduced. We’ve had some very vocal opposition to this from ranch and farmer-supply stores. Some chemical reps have also been loudly complaining about it. But we’ve had nothing but support from – for lack of a better term – ‘real’ crop consultants.”

Harrod isn’t talking to the same folks Claude Bonner is. Bonner, a former Arkansas Extension cotton specialist who now works as a consultant with Cotton Specialists of Arkansas, Inc., says his peers aren’t keen on what’s being proposed.

“Things are still up in the air,” says Bonner. “Within the consulting group, though, the proposed law changes are quite controversial – particularly as they pertain to every consultant. The language doesn’t just cover for-fee consultants, but all phases of our industry. That doesn’t sit well with us.”

The Arkansas Plant Board bill

On a separate but similar track, the Arkansas Plant Board is also looking at tightening up laws governing consultants. A pesticide committee meeting (which is a sub-committee of the Arkansas State Plant Board) was to be held on Jan. 28 to look at the latest version of the proposed rules. The pesticide committee will vote whether or not to recommend new rules be taken up by the full Plant Board. If the Plant Board later approves the proposed new language in the proposed bill, it will be taken on legislative rounds.

“Originally, in response to the Fury fiasco, we went and spoke with different consulting groups that make recommendations for pesticide use,” says Mike Thompson, director of the Plant Board’s pesticide division. “We explained the problem that happened with Fury and how that could be repeated in the future without new regulations. We talked to consultants about what we felt needed to be done to reconcile the situation and then asked them for their input.”

Thompson says “very good comments” came back.

“Everyone we spoke with understood where we were trying to go with this. Many of the comments were very similar and we pulled into the working rules as many of their suggestions as we could.”

So what are the changes to the rules?

The law currently says that licensing consultants is voluntary not mandatory. Many of the consultants in the state, “work on their own, are a member of the Certified Crop Advisors (a national organization with state chapters) or may work as a voluntary consultant,” says Thompson. “We want the licensing to be mandatory for any crop consultant operating in Arkansas. To make it enforceable, we want any recommendation a consultant makes to be put into writing.”

If the paper trail was all the new laws were about, Bonner wouldn’t have much objection. “The consultants – the for-fee consultants, not the field and company reps and the rest – are all in agreement that we’ll provide a written recommendation,” he says. “Most of us already do. Now, there are some things on the proposed legislation related to the written recommendation that some of us aren’t doing currently, but we can make adjustments.”

And Bonner isn’t opposed to mandatory licensing for certain consultants.

“The Arkansas Agriculture Consultants Association’s position is we’d support a mandatory licensing law (AACA already supports a voluntary licensing law, in place since 1987) that is directed toward for-fee consultants. We really don’t see the utility of what they’re suggesting at this point. The Plant Board is trying to cover too much of the waterfront and should be narrowing the scope and focus of their efforts. We want nothing to do with the bill the way it’s written right now.”

Thompson doesn’t shy away from the fact that there has been some opposition. “It’s human nature: people don’t like to change the way they’re already doing things. We knew that would be a struggle going into this. I’ve gotten some calls. Consultants have some of the same concerns they’ve spoken of all along. They’re worried about how they’ll maintain extra paperwork. This isn’t a big secret. We’ve already distributed the form we’d like to see used in this.”

Harrod says creating a paper trail protects everyone and holds everyone to the same level of accountability. “The state can’t have any more (situations as with Fury). All recommendations should be in writing. If consultants want to make recommendations from the pick-up driving down I-40 without visiting anyone, fine. But if they screw up, there must be consequences to their actions.”

Not at cross purposes

Why don’t the AAAA and the Plant Board work together on this? Simple, says Harrod: because the aerial applicators are unwilling to wait for a Plant Board ruling.

“The truth is, as long as this gets done, I don’t care if the bill comes out of the Plant Board or not. We’re of a like mind on this. But before the Plant Board can do anything in the legislature, they must jump through a series of rule hoops. I don’t have such restrictions.”

Regardless, Harrod doesn’t anticipate the bill being introduced until February at the earliest anyway. And if the Plant Board does move to introduce a bill, Harrod will have already primed the legislative engine.

“If this gets pushed through the Plant Board, I’m perfectly willing to work with them. There’s no reason to duplicate our efforts. I’ll be happy to visit with legislators and educate them on this issue. Currently, my efforts aren’t tied to what the Plant Board does. That may change. We certainly aren’t working at cross-purposes.”

Consultants, meanwhile, are watching developments with a wary eye. Bonner says one thing is certain: liability may be spread but in the end, the farmer and applicator are the ones who stop the buck.

“The farmer and applicators will never get away from their liability entirely,” says Bonner. “They may be able to spread liability to consultants some, but ultimately the grower and aerial applicator are going to share responsibility for bad spraying decisions. They’ll never be able to shirk that.”

e-mail: dbennett@primediabusiness.com