Nanotechnology Lawyer & Attorney : Porter Wright Morris & Arthur : Nanotechnology Law Report - Germanium nanobead image provided by UT-Battelle, which manages Oak Ridge National Laboratory for the Department of Energy

On June 17, 2011, the Environmental Protection Agency (EPA) published a notice in the Federal Register announcing that it was seeking "comment on several possible appraoches for obtaining information about what nanoscale materials are present in registered pesticide products. . .  . and its potential effects on humans or the environment. . . ."

Under one approach to collecting this information, EPA would use the authority granted to it by the Federal Insecticide, Fungicide,and Rodenticide Act  (FIFRA) to require applicants to "provide any factual information of which [the applicant] is aware regarding unreasonable adverse effects of the pesticide on man and the environment". If EPA adopts this approach, it would require the inclusion of "such information with applications for registrations of pesticides or pesiticide products containing 'nanoscale materials'".

Under a different section of FIFRA, EPA would gather information using Data Call-In notices.

EPA is required to collect information regarding pesticides under section 3(a) of FIFRA. Using the information collected, EPA can then determine

1) the validity of the products claims

2) that labelling complies with FIFRA requirements

3) that the pesticide or pesticide product will not cause unreasonably adverse harm to humans or the environment.

EPA "believes that certain information concerning pesticide ingredients" - in this case, nanoscale materials, defined by EPA as (1) between 1 and 100 nanometers, (2) " exhibit unique and novel properties compared to larger particlesof the same material" and (3) has been manufactured or engineered at the nanoscale level to take advantage of those unique or novel properties - have not been routinely provided to EPA, complicating the agency's attempts to fulfill its legal obligations.

In determining whether an ingredient meets this description, EPA
may review particle size data and, among other things, the
manufacturing process to determine whether it employs processes
specifically to create or enhance the proportion of nanoscale materials
in the product, as compared with other processes used to produce
similar products. The Agency generally expects that these ingredients
may comprise, but are not limited to, metal-based (e.g., silver) and
carbon-based (e.g., carbon nanotubes) nanoscale materials. . . EPA would
review information provided by a registrant or applicant concerning the
composition of the pesticide product and to provide an Agency view on
whether the product did (or did not) contain a nanoscale material for
purposes of this policy.

 

Noting that ". . . there is a growing body of scientiific evidence showing that differences can exist between nanoscale material[s] and their non-nanoscale counterpoint[s]. . . EPA sees the emergence of nanoscale materials as offering . . .potential benefits for society in many different fields, including pest control products". Among these potential benefits are :

1) creation of more effective and efficient targeting of pesticide products

2) use of smaller quantities of pesticide products, reducing the amount of pesticides circulating in the environment

3) reducing the frequency of usage of these products.

All of these benefits would lead to "improved human and environmental safety and could lower pest control costs. . .. EPA seeks to encourage innovative work in developing nanoscale materials to realize these benefits".

But while EPA may be encouraging innovative work to realize those benefits, it is also aware that

the small size . . . or the unique or enhanced properties of nanoscale materials may, under specific conditions, pose new or increased hazards to humans and the environment. . . . It is important to empasize that  . . any individual type of nanoscale material may
not display all or even any of the characteristics observed and
reported for other nanoscale materials. In other words, some nanoscale
materials may have properties which, for purposes of assessing the risk
of a pesticide, are essentially identical to larger sized materials (or
particles) of the same substance. Furthermore, nanoscale materials may
also have properties that make them less risky, or more beneficial in
some other way, than larger sized materials (or particles) of the same
substance. So, it appears increasingly likely that there are few, if
any, universal ``nanoscale'' effects, and the distinctive effects seen
at nanoscale are specific to the properties of each material type under
specific exposure scenarios. Thus, EPA does not regard the fact that an
ingredient meets our description of a nanoscale material as evidence
that a pesticide containing the ingredient would cause unreasonable
adverse effects on the environment and thus would no longer meet the
statutory standards for registration. Rather, the presence of a
nanoscale material in a pesticide is grounds for EPA to consider the
possible need for data to characterize the potential of the ingredient
to pose risks. However, the registration status of a product would not
change merely as a result of providing information to EPA about the
presence of a previously-unreported nanoscale material. If, based on a
science based assessment of the risks of the specific pesticide
ingredients involved, EPA were to determine that the pesticide no
longer met the criteria for registration, or that some change was
needed in the conditions of use, EPA would conduct a separate action to
notify the manufacturer of that determination, consistent with current
FIFRA regulations.
    Finally, scientifically speaking, there currently is no bright line
with respect to a size below (or above) which nanoscale materials do
(or do not) exhibit properties that might be of interest in assessing
whether a pesticide product has the potential to cause unreasonable
adverse effects on the environment. Therefore, the precise size range
in nanometers addressed by the policies proposed in this document might
be revised in the future as new information becomes available.

EPA believes that any of the
following types of information are relevant to assessing the potential
of a pesticide to cause unreasonable adverse effects on the
environment:
    Any information concerning what nanoscale materials are
present in pesticides, whether as an active ingredient or as an inert
ingredient;
    For any pesticide product that contains nanoscale
material, whether active or inert, any existing information that
characterizes the size and size distribution of the nanoscale material
as measured in nanometers;
    For any pesticide product that contains nanoscale
materials, whether active or inert, any existing information that
describes the manufacturing process used to produce the nanoscale
material in whatever size range it is produced;
    For any pesticide product that contains nanoscale
materials, whether active or inert, and that also is or will be used
for an end-use formulation that contain(s) a composite (e.g., the
active ingredient is a matrix complex comprised of the nanoscale
material(s) in combination with a carrier, such as silica or sulfur),
any existing information that characterizes the size and size
distribution of the composite; and
    For any pesticide product that contains nanoscale
materials, whether active or inert, any existing information that shows
adverse effects at any level of exposure to the nanoscale material on
humans or nontarget species, and/or that shows the levels or nature
(e.g. routes, frequency, or life stage) of potential human and environmental exposure.
. . . . the foregoing is not intended to be an exclusive list.
To the extent that a registrant has a pesticide product that contains a
nanoscale material, and in addition has any other existing information
not captured in the previous list that pertains to, concerns, or
otherwise relates to the nanoscale material and has the potential to
raise questions about the continued registration of a product or the
appropriate terms and conditions of a product registration, EPA is also
considering whether this too should be submitted to the Agency.
 

The main purpose of this notice was to solicit comments regarding how EPA will collect information regarding nanoscale materials in pesticides or pesticide products. As stated above, EPA is considering two methods.

The first is to require that information submitted by registerants of pesticides under 6(a)(2) of FIFRA include information about nanoscale materials.

Noting that some stakeholders have objected to this method of collecting information as (1) potentially stigmatizing nanoscale materials as causing "adverse effects" on humans and/or the environment and (2) "overly burdensome", EPA notes that

1) " It is . . .EPA's position that . . .filing an additional report . . .doesnot stigmatize pesticides and wouldnot stigmatize any nanomaterials in pesticides since filing such reports is quite common."

2) . . . only registrants who know that their products contain nanoscale
materials would be required to report to EPA. Further, they would be
required to report only the information they know about. Section
6(a)(2) does not require a registrant to generate new data or to seek
out additional information. Further, registrants and applicants whose
products do not contain nanoscale materials (or who do not know that
their products contain nanoscale materials) would have no reporting
obligation under FIFRA section 6(a)(2).

Alternatively, EPA could gather the information it needs by using the authority granted to it under section 3(c)(2)(B) of FIFRA to issue Data-Call In Notices and to require the inclusion of this information "with any application for registration of a pesticide product that contains a nanoscale material". The use of DCIs would prove burdensome for both EPA and registrants, requiring the former to have to create new administrative procedures to monitor the intake and processing of reports, and for the latter, who would have to generate data about it's products that it didn't have

Under either the 6(a)(2) or the 3(c)(2)(B) approach, DCIs targeted
to individual pesticide products that contain specific nanoscale
materials would likely be used in the future to collect more specific
information or data about particular products. EPA would consider doing
so on a case-by-case basis and would tailor any request for information
accordingly.

 

Some stakeholders have suggested that EPA simply propose a new regulation to require the disclosure of what nanoscale materials are present in a pesticide as part of the application for registration of a pesticide. EPA, while not considering proposing such a regulation at this time, is also seeking comment on that appraoch.

EPA is also considering a change in policy in how it classifies applications for registration of pesticides with nanoscale materials

. . . . EPA is thus proposing that it not make
the requisite findings absent specific information on the nanoscale
material included in a pesticide product when the application relies on
a comparison to a currently registered pesticide product containing
either a non-nanoscale version of the same ingredient or another
nanoscale version of the ingredient that has different characteristics. 
. . . .  EPA would initially classify any application for
registration of a pesticide product containing an active or inert
ingredient that is a nanoscale material as an application for a ``new''
active or inert ingredient, even when another registered pesticide
product contains a non-nanoscale form of the ingredient or a nanoscale
form of the ingredient with different size dimensions or other
properties. This initial presumption, however, could be rebutted on a
case-by-case basis through the submission of, among other
possibilities, bridging data or other information demonstrating to
EPA's satisfaction that the nanoscale material's properties, which are
relevant to assessing the potential risks to human health and the
environment, are substantially similar to the properties of the
already-registered non-nanoscale or already-registered nanoscale form
of the material, or that the nanoscale material differs only in ways
that do not significantly increase the risk of unreasonable adverse
effects on the environment, and that approving the registration in the
manner proposed would not significantly increase the risk of any
unreasonable adverse effect on the environment.
    If an applicant could make this showing to EPA's satisfaction, then
the application would be processed as a ``me-too'' application within
the timeframes prescribed for such applications.

EPA concludes the notice by presenting several questions for respondents to consider:

EPA  specifically invites comments on the following issues:
    1. In view of the Agency's goal of identifying what nanoscale
materials are in products so that EPA can determine whether it needs
additional data to evaluate the products' safety under FIFRA, should
EPA change the description of a ``nanoscale material''? For example,
should the size range remain ``between approximately 1 and 100 nm in
one dimension''? Are there other characteristics that EPA should
consider, e.g., morphology, including shape and crystal structure;
surface chemistry and reactivity; specific surface area, charge;
solubility; conductive, magnetic, and optical properties?
    2. Should the reporting requirement apply only to nanoscale
material that is ``intentionally produced to have at least one
dimension that measures between approximately 1 and 100 nanometers,''
or should it also apply to naturally occurring materials? Why?
    3. Is the meaning of ``intentionally produced'' sufficiently clear?
If not, in what circumstances would the term be unclear and how might
it be clarified? Would offering a consultation procedure--by which a
registrant or applicant describes to EPA the production process that
results in the presence of a material in the nanoscale size range, and
EPA responds with a determination regarding whether reporting is
required--be an acceptable approach to providing clarity?
    4. Should the reporting requirement apply to ingredients in
pesticides that contain any amount of a nanoscale material, or should
the requirement apply only if an ingredient contains more than a
specified percentage (e.g., 10%) of nanoscale material? If the latter,
what should the specified percentage be and why?
    5. How should the reporting requirement apply to a pesticide
manufacturer who purchases ingredients that may contain nanoscale
material?
    6. Are there ways in which the description of ``nanoscale
materials'' can be refined and clarified, including ways in which
agglomeration and aggregation could be considered as well as
suggestions for ways in which more subjective criteria, such as
``unique or novel properties'' can be incorporated into the screening
criteria?
    7. Is EPA's description of ``nanoscale material'' inconsistent with
other definitions of nanoscale material or similar terms? If so, please
comment on whether such differences create any regulatory issues. In
particular, does the focus on ``intentionally produced'' materials
create any such inconsistency with other definitions of nanoscale
materials or similar terms?
    8. If a pesticide is identified as containing a particular
nanoscale material, what would be the most useful next steps to inform
EPA's understanding of potential risks associated with the pesticide?
Are there tests that could provide useful information toward an
understanding of risk that would be common to all nanoscale materials,
or should the data requirements necessarily be compound- and situation-
specific? How should bioavailability be considered in determining
testing requirements (e.g., are nano-particles respirable or bound to
other components)?
    With respect to the proposed approaches, EPA is seeking comment on
how to implement them to ensure efficient, effective, and timely review
of applications. EPA specifically invites comments on the following
issues:
    1. Is there a way to determine, in advance of receiving an
application for registration of a product containing a nanoscale
material, whether a particular kind of nanoscale material has
properties that, for purposes of risk assessment, are essentially the
same as larger sized materials of the same substance? If so, how would
such determinations be made and on what would they be based?
    2. What kinds of information should EPA accept as demonstrating
that a pesticide product containing a nanoscale ingredient is identical
or substantially similar to a currently registered pesticide or differs
only in ways that would not significantly increase the risk of
unreasonable adverse effects on the environment, and that approving the
registration in the manner proposed would not significantly increase
the risk of any unreasonable adverse effect on the environment?
    3. Can you suggest any alternative(s) to the proposed approaches
that would be equally or even more effective in addressing the status
of nanoscale materials as new active or inert ingredients for purposes
of both FIFRA and PRIA, keeping in mind the data showing that size,
especially when reduced below approximately 100 nm, may alter the
manner in which materials behave and, in turn, the potential risk to
human health and the environment associated with such materials?
    With respect to the potential alternative ways of obtaining the
needed information on what nanoscale materials are in pesticide
products, EPA specifically invites comments on the following issues:
    1. Has EPA appropriately characterized in this document the current
scientific understanding of the potential risks of nanoscale materials?
If not, please comment on how to characterize the potential risks of nanoscale materials. How would the  perception of the risks of nanoscale materials differ depending on the  approach used by EPA to require needed data on nanoscale materials in  pesticides? How could EPA lessen the possibility that issuance of a
final requirement to report what nanoscale materials are in pesticides
will result in a public misunderstanding of the potential risks of
nanotechnology more generally?
    2. Do commenters believe that identification of the nanoscale
materials in pesticide products is relevant to EPA's statutory
determination regarding the potential for unreasonable adverse effects
on the environment? Please provide the scientific or legal basis for
your view.
    3. Has EPA characterized the alternative approaches with respect to
which they would: (a) result in a misunderstanding of the potential
risks posed by nanoscale materials; (b) result in the timely submission
of needed information; and (c) impose burdens on pesticide companies,
those whose products do, and do not, contain nanoscale materials? If
not, please comment on those issues.
    4. If EPA uses FIFRA section 6(a)(2) to obtain the needed
information on nanoscale materials in pesticides, how could the Agency
ensure that its action is not mischaracterized or misunderstood as a
determination that the mere fact that a pesticide contains nanoscale
materials causes unreasonable adverse environmental effects?
    5. If EPA were to use DCIs to obtain the needed information on
nanoscale materials in pesticides, how could EPA reduce both the
burdens on registrants and on EPA, as well as the time required to
complete such a process? For example, is it possible to reduce the
burdens on registrants by targeting only certain types of products? If
so, how would EPA determine which products should receive DCIs?
    6. What are the advantages and disadvantages of requesting
information on nanoscale materials specifically versus requesting
information on size distribution generally? (Note that either type of
information could be collected under either the 6(a)(2) or the
3(c)(2)(B) approach, except that 6(a)(2) cannot be used to require the
production of new information that does not already exist, while a
collection under 3(c)(2)(B) must be directed to an individual
registrant and requires a response.) Is identifying what nanoscale
materials are in products a useful first step, or should EPA move
towards immediate collection of more specific information, such as
particle size distribution, on products that might contain nanoscale
materials? Are there other physical and/or chemical properties that
might be equally or more important for assessing the potential of a
pesticide to cause unreasonable adverse effects on the environment
(e.g., morphology, including shape and crystal structure; surface
chemistry and reactivity; specific surface area, charge; solubility;
conductive, magnetic, and optical properties)? Should information on
these properties be separately requested? What would be the value and
burden of obtaining such information?
    1. If EPA were to use rulemaking to establish data requirements for
pesticides containing nanoscale materials, what types of information
should EPA use to determine appropriate data requirements? What types
of studies should EPA require to evaluate a nanoscale material?
    2. When choosing an approach for obtaining needed data, how should
EPA weigh considerations relating to the need to update its safety
evaluations of currently marketed pesticides in a timely manner, the
goal of ensuring marketplace equity, and the interest in minimizing the
burdens on regulated entities?

 

Comments need to be filed by July 18, 2011, either in an e-format via www.regulations.gov or delivered in paper to

Mail: Office of Pesticide Programs (OPP) Regulatory Public
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001.
    Delivery: OPP Regulatory Public Docket (7502P),
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only
accepted during the Docket Facility's normal hours of operation (8:30
a.m. to 4 p.m., Monday through Friday, excluding legal holidays).
Special arrangements should be made for deliveries of boxed
information. The Docket Facility telephone number is (703) 305-5805.
   

Further information on submitting comments may be found at the head of the notice. A docket - EPA-HQ-OPP-2010-0197 - has been established on the Regulations.gov site. A few comments have been filed and may be viewed there, along with supporting and related materials used by EPA in drafting this notice. Members of the Nanotech community are encouragef to file appropriate comments by the July 18, 2011 deadline. Following receipt and review of comments filed by the July 18, 2011 deadline, EPA will publish another notice summarizing the comments.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As part of Queen Elizabeth II's Official Birthday, Buckingham Palace released the Queen's Birthday Honours List. Among those honored with a knighthood was Professor Mark Edward Welland of the University of Cambridge, where he heads the Nanoscience Centre and also currently serves as Chief Scientific Advisor to the UK Ministry of Defence. Professor Welland is also the former editor of Nanotechnology, published by the Institute of Physics.

Professor Welland's knighthood is in recognition of a distinguised career in science and teaching. The rank is that of a Knight Bachelor, which has nothing to do with his marital status, but instead indicates that he is not a member of one of the Chivalric Orders, such as the Order of the British Emprire or the Order of the Garter.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As a follow-up to and outgrowth of the June 2005 OECD Joint Meeting of the Chemicals Committee and the Working Party on Chemicals, Pesticides, and Biotechnology, the OECD Working Party on Manufactured Nanomaterials (WPMN) was established in September 2006, with the mission of helping "member countries efficently address the safety challenges of nanomaterial".

Presented at the WPMN's March 2011 meeting, "Current Developments/Activities on the Safety of Manufactured Nanomaterials" ". . .is intended to provide delegations and other stakeholders with a "snapshot" of information on activities related to manufactured nanomaterials, as well as other activities . . . at the national and international level".

The "snapshot" consists of two sections; section I, "Recent and Planned National Activities in Chemical Regulatory Area on Health and Environmental Safety Aspects of Manufactured Nanomaterials" and section II, "Current Activities in Other Organisations Related to Nanotechnologies/Nanomaterials". Section I is the larger of the two sections, focusing on the written reports that members of the OECD submitted to the WPMN. From the length and depth of these reports, it is easy to gauge which nations are actively involved in nanomaterials research, development and can be judged to have a fairly well developed nanoindustrial segment to their national economies. Australia, for example, submitted a five and a half page report discussing what the government and regulatory agencies have done and plan to do in the future to insure that facilities manufacturing nanomaterials reduce the levels of worker exposure, possible impact on the environment, etc, while Belgium's report, in contrast, consisted of four paragraphs.

Section II is far shorter, totaling four pages, focused on the activities of the International Organisation for Standardisation Technical Committee-Nanotechnologies (ISO/TC 229), the World Health Organisation (WHO) and the Food and Agriculture Organisation of the UN (FAO).

The value of the "snapshot" is that it provides stakeholders, both in the respective nations and internationally, with useful information regarding various nations support of their nanoindustries and how current and future regulation affecting workers, the environment and the general public's exposure to nanomaterials might impact on established and emerging nanoindustries.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

One June 9, the President's Office of Budget and Management, United States Trade Representative, and Office of Science and Technology Policy issued a joint memorandum directed to all Executive branch departments and agencies entitled "Policy Principles for the U.S. Decision-Making Concerning Regulation and Oversight of Applications ofNanotechnology and Nanomaterials."

The Policy Statement is important because it confirms a "best-science" approach to potential nano-EHS issues, rather than a reactionary approach.  While this has been the stated approach of various federal agencies in the past, it is nice to see it reaffirmed across the entire federal government at the highest levels. The memorandum also reaffirms the importance of nanotechnology to the US economy, and recognizes the potential adverse economic consequences that knee-jerk regulation might have. 

Perhaps most interesting is that the memorandum repeatedly refers to the sufficiency of existing regulations to deal with potential nano-related EHS risks.  Some advocacy groups may have been holding out hope that the Obama administration would enact new nano-specific regulations. That is very doubtful given the tenor of the memorandum, which should provide industry with a measure of reassurance in this regard.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Senate returned from its Memorial Day recess this week. Among the bills that it may begin debating is H.R. 1540, the FY 2012 National Defense Authorization Act. Introduced by Rep. Howard "Buck" McKeon (R-CA-25th), Chairman of the House Committee on Armed Services , on 04/14/2011, HR 1540 was amended during a "markup" session of the Committee on 05/17/2011. During this session, amendments offered by Rep. Nikki Tsongas (D-MA-5th)  (Sec. 1638)and Rep. Chris Gibson (R-NY-20th), (Sec. 1647) were adopted:

SEC. 1638. BUDGET ITEM RELATING TO MATERIALS TECHNOLOGY.

 

(a) Additional, Discretionary Budget Authority- In the budget submitted to Congress under section 1105 of title 31, United States Code, for fiscal year 2012, the President requested $30,258,000 for Materials Technology. Of the amounts authorized to be appropriated by section 201, as specified in the corresponding funding table in division D, the Secretary of the Army shall obligate an additional $4,000,000 to develop innovative nanomaterials and nanomanufacturing processes for warfighter systems in furtherance of national security objectives.

SEC. 1647. BUDGET ITEM RELATING TO UNIVERSITY RESEARCH INITIATIVES.

 

(a) Additional, Discretionary Budget Authority- In the budget submitted to Congress under section 1105 of title 31, United States Code, for fiscal year 2012, the President requested $80,977,000 for research, development, test, and evaluation, Army, for university research initiatives. Of the amounts authorized to be appropriated by section 201, as specified in the corresponding funding table in division D, the Secretary of Defense shall obligate an additional $7,000,000 for multidisciplinary research into nanotechnology science in furtherance of national security objectives.

 

Following debate in the House, H.R. 1540 passed by a vote of 322 for and 96 against, sending the bill into the Senate for it's consideration. Senator Claire McCaskill (D-MO), in a letter to Chairman McKeon and Ranking Member Rep. Adam Smith (D-WA-9th) - the ranking member of either a House or Senate Committee or Subcommittee is usually the most senior member of the minority party in the House or Senate - has raised objections to H.R. 1540, specifically citing Sec. 1647 as violating the House Republican's recently adopted ban on earmarks:

May 26, 2011

Dear Chairman McKeon and Ranking Member Smith:

I write today to express concerns about the process used in your committee's mark-up of the Fiscal Year 2012 National Defense Authorization Act (NDAA), which has obviously been structured to circumvent the earmark ban adopted by the House of Representatives. As someone who has worked tirelessly to end the non-competitive, arbitrary process of earmarking, I celebrated the decision, first made by House Republicans, to put a moratorium on earmarks. However, you have now instituted a process that allows members of your committee to circumvent the ban through the use of non-transparent amendments that effectively act as traditional earmarks. This is disappointing and disingenuous. . . .

What is remarkable is that the new earmarking procedure you have instituted not only circumvents the current moratorium but is actually less transparent than the earmarking process that was in place prior to the moratorium. In the process used by your committee, neither exact dollar amounts nor intended recipients of the earmarks can be clearly discerned. Under pre-moratorium rules, earmark requests were publicly posted and funded earmarks were listed in reports accompanying bills with the sponsor, amount and intended recipient all clearly detailed. You may assert that amendments adopted to your bill do not require a specific dollar amount be directed to a specific entity. You may also argue that the amendments require competition in awarding additional funding. Unfortunately, such arguments appear insincere. It has been reported that the members of your committee have been assured that they will be able to direct the funds provided for in their amendments to their desired recipients using informal contacts with the Department of Defense and the leverage of the Armed Services Committee. The press releases of your members issued when the FY12 NDAA won passage in your committee bear this out, as illustrated in the example below. . . .

One amendment approved by your committee provides a clear example. During the markup of your bill, a Congressman with a nanotechnology-specific academic center in his district offered an amendment seeking a $7 million addition for "innovative nanomaterials and nanomanufacturing processes." The amendment was offset using funds in the MFET Fund. The amendment was later passed as part of a large block of similar amendments without debate. Subsequently, the Member who won inclusion of the amendment issued a press release celebrating the additional $7 million in funding. Curiously - or not - the press release also included a quote from a member of the leadership of the university with the nanotechnology center in the Congressman's district. It is apparent that both the member and the university have expectations that the funds will ultimately reach the university. This is tantamount to the classic earmarking process. Notably, the Member who sponsored this amendment, like his House colleagues, has publicly embraced an earmark ban for the 112th Congress.

On its face, the new process you have implemented in your committee to facilitate earmarking and circumvent the earmark moratorium in the House strikes me as a subversion of the trust of the American people who took your word about ending earmarks. Out of fidelity to your own commitment to ban earmarks, I urge you to seek to remove those amendments included in the FY12 NDAA that appear to be nothing more than earmarks in an alternate form.

 

What raised Senator McCaskill's ire were two press releases issued by Rep. Gibson's office on May 12, 2011, announcing that several of the amendments he had offered during the markup session had been adopted, including what became Sec. 1647:

“This action by the House Armed Services Committee represents great news for the Capital Region, New York State, and the nation.  Congressman Chris Gibson is to be applauded for his vision and leadership in advancing the concept of a Federally Funded Research and Development Center dedicated to nanotechnology for defense related innovations, and commended for his drive to make such a critical enterprise a reality.  An FFRDC for nanoscale defense applications represents a clear and present national priority, not only to provide our fighting men and women with the state-of-the-art technological tools to protect and safeguard this great country, but also to ensure its ability to maintain its scientific and economic competitiveness in the nanotechnology enabled global economy of the 21 century.  The Capital Region is uniquely predisposed to benefit from this FFRDC, leading to significant Federal investments and high tech jobs creation and retention,” said Alain Kaloyeros, the SUNY College of Nanoscale Science and Engineering Senior Vice President and CEO. . . .

Full List of Congressman Gibson Additions and Amendments to the 2012 NDAA

• Commission a study by the Department of Defense to assess the desirability of establishing a Federally Funded Research and Development Center (FFRDC) for nanotechnology.  This would allow the SUNY Albany College of Nanoscale Science to compete for this designation, and associated federal support, if it is determined necessary.  The authorization also expresses the sense of the Committee that such a FFRDC should be designated.
• Provide $7 million (fully offset) in funding for nanotechnology research in the defense field.  SUNY Albany would be able to compete for this funding as well.

and a second press release issued folowing the House passage of H.R. 1540 on 05/26/2011:

“Furthermore, the money designated for nanotechnology research, which the SUNY Albany College of Nanoscale could compete for, will help to provide state-of-the-art technology that will make military equipment more reliable, more durable, and lighter for our service members to carry.  Finally, I’m very glad the final bill included a provision expressing the sense of Congress that there be a national Yellow Ribbon Day, an important demonstration of support for our Armed Forces and their families, and modeled after the event on April 9 in New York State.”
 

As the Roll Call article linked to above points out, ". . . SUNY Albany College of Nanoscale Science and Engineering is not in Gibson's district. . . .". It's in the 21st district, the district for Paul Tonko.

H. Rpt. 112-78 provides clear justification for Sec. 1647:

Nanotechnology research

The committee is aware that the Department of Defense is pursuing research into a variety of nanotechnology applications for defense purposes. New capabilities enabled by the unique performance enhancements of nanostructure materials hold the potential of transforming the technology landscape. The committee encourages the Department to continue to make investments in nanotechnology research that is needed to create the next generation of sensors, electronics, weapons, and manufacturing processes.

However, the committee is concerned that the Department of Defense lacks sufficient expertise in some emerging research disciplines related to nanotechnology to support a long-term research investment strategy. The committee is aware that a dedicated federally funded research and development center (FFRDC) could support the Department in this effort, but that no such broad-based nanotechnology FFRDC exists.

Therefore, the committee directs the Assistant Secretary of Defense for Research and Engineering to provide a report to the Senate Committee on Armed Services and the House Committee on Armed Services within 90 days after the date of enactment of this Act on how the Department of Defense receives support from the research community on nanotechnology issues, including identifying where within the existing FFRDC community that expertise comes from, and assessing whether a dedicated FFRDC is needed.

It is possible that, once the Senate begins debate on H.R. 1540, Sec. 1647 may be amended out of the bill and that the bill could go into a Conference Committee. We'll keep track of the progress of the bill.

We'd like to gratefully acknowledge the folks at Bloomberg Government for providing a transcript of the House Committee on Armed Services markup session.

• Email This
• Print
• Comments
• Trackbacks
• Share Link