Bergeson & Campbell, P.C. serves small, medium, and large pesticide product registrants and other stakeholders in the agricultural and biocidal sectors, in virtually every aspect of pesticide law, policy, science, and regulation.
DPR Proposal for Right-to-Know Notifications Prior to Soil Fumigant Applications Could Have Far-Reaching Implications
On April 9, 2015, the California Department of Pesticide Regulation (DPR) held the first of a planned series of workshops intended to help DPR develop “regulation concepts” for possible notifications prior to field fumigations. The presentations and video from that workshop are now available on DPR’s website.
DPR’s presentation at the workshop focused on the background that it believes supports the consideration of a notification requirement, and on current methyl bromide notification regulations and fumigant labeling requirements that it believes potentially could be used as a foundation to assist in the development of a rulemaking concept for soil-applied field fumigants.
In addition, DPR considered whether the concept can be reconciled with the current label requirements as emergency preparedness and response requirements, or maintained as a separate “right-to-know” requirement. DPR recommended expanding notification to all field fumigations, including applications of chloropicrin, 1,3-dichloropropene, methyl bromide, or pesticides that generate methyl isothiocyanate.
This potential regulatory development is of significant interest to pesticide registrants in general. The application of a right-to-know model to pesticide applications, pursuant to which growers and applicators would have to notify those in a defined proximity to the planned pesticide application, would have far-reaching ramifications. DPR’s further development of this potential regulation should be monitored closely.
Of note are similar notification schemes reportedly under consideration by the U.S. Environmental Protection Agency (EPA) as part of its pollinator protection proposals. EPA staff has spoken of how one essential component of any pollinator protection program will be some kind of notification scheme for beekeepers, or at least commercial beekeepers, who have hives in the vicinity of the use area for certain pesticides. As that issue evolves, it will invite comparison with EPA’s position on other requirements for mandatory notification, where generally EPA has not supported blanket federal requirements for notification of nearby pesticide applications. This development in the pollinator area could lead to reconsideration at the federal level regarding broader advance notification requirements for specified pesticide applications.
This workshop presentations and discussion appeared to demonstrate progress among the agencies in coordinating their work to address the issues that have been the subject of this and prior workshops. The presentation content exhibited a better understanding of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) evaluation process by the Services, and the presentations themselves allowed for more interaction between the presenters and participants; some of the question and answer sessions (conducted after each segment) included detailed exchanges of information among the participants.
To the dismay of some registrants and observers, however, as the various evaluation models were described, and an avian case study presented, the direction of the joint analyses seemed to be moving towards the marriage of very conservative EPA assessment models and assumptions with the Services’ desire to avoid any potential impacts on individual members of a protected species and any habitat. Should this direction not change, the Endangered Species Act pilot assessments could be very conservative and indicate what many may believe is an unwarranted need for significant changes in some current pesticide labels. Simply put, from a registrant perspective, the good news is that the agencies are cooperating and working better together; the bad news is that both EPA and the Services appear to be planning to use very conservative models and assumptions, which could result in proposals for severe restrictions on some current use patterns.
The letter states that the letter recipients are companies that have submitted an application for a new outdoor use and/or hold registrations for products containing imidacloprid, dinotefuran, clothianidin or thiamethoxam that have directions for outdoor application.
Affected neonicotinoid actions include:
* New Uses (including crop group expansion requests);
* Addition of New Use Patterns, such as aerial application;
* Experimental Use Permits; and
* New Special Local Needs Registrations.
The letter does not, however, preclude the approval of “me-too” products -- “products that are identical or substantially similar to existing uses.” In addition, EPA states that if a significant new pest issue should arise that may be uniquely addressed by one of these chemicals, EPA may consider whether an emergency use under FIFRA Section 18 might be appropriate. In the event that an emergency use is requested, EPA plans to assess such requests by relying on available information and risk mitigation strategies.
This new missive from EPA provides yet another example of a recent trend that many registrants believe is of concern, whereby EPA makes a broadly applicable set of regulatory decisions without an associated administrative process. With this approach, EPA summarily issues a letter to a class of registrants with immediate direct affect on their registrations with little or no room for consideration of individual facts, and with little explanation of important risk issues. In this letter, for example, EPA precludes the expansion of new uses, but yet allows the continued processing of “me-too” applications with no explanation from a risk profile of the risk difference that allows one type of product to be processed, but not the other. There are many possible scenarios where a new or expanded use of a product would not present any more risk to pollinators than the me-too product that EPA indicates will be considered.
This one-size-fits-all approach also appears to exclude consideration of any risk reduction potential of the pending applications (for example, when a pending neonic application represents a reduction in worker risk or endangered species when compared to an existing use pattern). Some applications may replace current exposure levels to organophosphate insecticides that EPA has generally sought to reduce. The potential processing of Section 18 exemptions may provide an avenue for such considerations, but the presumption that the pollinator issue a priori makes all other risk elements secondary is a tacit admission of where EPA currently evaluates the potential risk to honeybees in comparison to other possible impacts from pesticide use, including human health risks.
More information on EPA’s efforts to protect pollinators: http://www2.epa.gov/pollinator-protection.
Recent Studies and Reports on Pollinators: (1) New University of Maryland Report Indicates Neonicotinoids Not Primarily Responsible for CCD; and (2) Report from Congressional Research Service on Bee Health
Recently, the results of a three-year University of Maryland study assessing the potential chronic sublethal effects on whole honey bee colonies of a diet containing imidacloprid, an insecticide that belongs to the neonicotinoid class of chemicals, at 5, 20, and 100 μg/kg over multiple brood cycles have been released. The study, Assessment of Chronic Sublethal Effects of Imidacloprid on Honey Bee Colony Health, funded primarily by a Cooperative Agreement with the U.S. Department of Agriculture (USDA) Agricultural Research Service (ARS) Bee Research Laboratory, concludes that: “chronic exposure to imidacloprid at the higher range of field doses…could cause negative impacts on honey bee colony health and reduced overwintering success, but the most likely encountered high range of field doses relevant for seed-treated crops (5 μg/kg) had negligible effects on colony health and are unlikely a sole cause of colony declines.”
This study examines a number of recent controversial issues behind the bee health discussion, including: whether pesticides have an impact when one examines exposure levels approximating actual field condition exposure levels and whether the pesticide use has a substantial impact on hive and hive survival (and not just an impact on individual bees). The study results will likely be used by others to help evaluate the meaning of many of the studies various researchers have conducted over the past three to five years that are often cited in the media. Critics of these other studies have noted the “excessive” amounts of the pesticides used in the research protocol. They have also noted that, as insecticides, the neonicotinoid products are designed to kill insects, and since bees are insects, some bee mortality can be expected if exposed to the material. The University of Maryland study sought to emulate more realistic field conditions in the study protocol. Its conclusion, that there were “negligible effects on colony health” over a three-year period, is significant.
Also fairly recently, the Congressional Research Service (CRS) issued a report on bee health and pesticides, Bee Health: the Role of Pesticides. The report states that although the report focuses on bee exposure to pesticides, this does not imply that pesticides have a higher influence on the health and wellness of bees than other identified factors. The report states: “Although pesticides have been shown to damage bee health, it is unclear whether the level of harm is sufficient to attribute pesticides as the single or as the major cause of honey bee population declines.” The report further states that there is “the possibility that bees are being negatively affected by cumulative, multiple exposures and/or the interactive effects of several of these factors.” The CRS report refers to conclusions outlined in the USDA and the U.S. Environmental Protection Agency’s (EPA) joint Report on the National Stakeholders Conference on Honey Bee Health, including that “no research conclusively points to one single cause for the large number of honey bee deaths.”
The report details several actions the federal government is taking to promote the health of honey bees and other pollinators:
* The establishment of a Pollinator Health Task Force co-chaired by USDA and EPA that will “focus federal efforts on understanding, preventing, and recovering from pollinator losses.”
* EPA’s pesticide registration review of all neonicotinoid insecticides, and EPA’s development of new pesticide labels that prohibit use of some neonicotinoid pesticide products where bees are present, including products containing imidacloprid, dinotefuran, clothianidin, thiamethoxam, tolfenpyrad, and cyantraniliprole.
* The U.S. Fish and Wildlife Service (FWS) will be phasing out the use of neonicotinoid pesticides in all of its wildlife refuges as well as the feeding of genetically engineered crops to wildlife by January 2016.
By Lynn L. Bergeson and Carla N. Hutton
Almost seven years ago, the International Center for Technology Assessment (ICTA) filed a petition for rulemaking requesting that the U.S. Environmental Protection Agency (EPA) regulate products containing nanosilver as pesticides and for related other forms of relief. On March 19, 2015, EPA responded to the petition. In general, the response does not alter EPA’s legal position with regard to nanosilver and its regulation under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), or otherwise contribute any new interpretations of existing EPA pesticide registration or enforcement policy.
Briefly, the key decisions articulated in EPA’s response to the petition are:
* EPA will treat products containing nanosilver as pesticides under FIFRA if intended for pesticidal purposes, even in the absence of explicit pesticidal claims.
* EPA rejected ICTA’s claim that all products containing nanosilver are categorically pesticides and should be regulated as such.
* EPA will continue to apply its statutory and regulatory criteria as to what is a pesticide on a case-by-case basis. The determination “would be fact specific, typically based upon information on the use patterns intended, the claims or other advertising used to distribute or sell the ingredient or product, and any other information or knowledge made known to or known by the distributor or seller.”
* Importantly, EPA disagrees with ICTA’s claim that the treated article exemption should not apply to any nanosilver pesticide product because nanosilver specifically is not the registered pesticide active ingredient. According to EPA, application of the treated article exemption is available if a registered pesticide product is used, consistent with any terms and conditions of use of the registered product.
* EPA granted ICTA’s request to review the health and safety impacts from use of a nanosilver ingredient in a pesticide product based on nanosilver data for the portion released as nanosilver and based on macro-scaled silver for the portion released as silver ions, and agrees that FIFRA Section 3(c)(7)(C) is the appropriate authority for review of applications for registration of products containing nanosilver ingredients.
* EPA rejected ICTA’s claim that EPA must comply with the National Environmental Policy Act (NEPA) to assess the environmental impacts of EPA’s decision regarding nanopesticides, citing EPA’s well-settled view that it is exempt from NEPA requirements under FIFRA under Merrell v. Thomas, 807 F.2d 776 (9th Cir. 1986).
* EPA denied ICTA’s request to use a particular enforcement strategy to address unregistered pesticides sold or distributed in the U.S., believing that EPA lacks a factual basis to conclude that all nanosilver products are pesticides and thus does not have the legal basis upon which to conclude that all products are illegally sold or distributed.
By Lynn L. Bergeson, James V. Aidala, and Lisa R. Burchi
On March 20, 2015, the United Nations World Health Organization’s International Agency for Research on Cancer (IARC) announced it had completed evaluations assessing the carcinogenicity of five organophosphate pesticides. Specifically, IARC classified the herbicide glyphosate and the insecticides malathion and diazinon as probably carcinogenic to humans (Group 2A), and classified the insecticides tetrachlorvinphos and parathion as possibly carcinogenic to humans (Group 2B). IARC also found there is “limited evidence” that glyphosate can cause non-Hodgkin’s lymphoma and lung cancer in humans.
A summary of the final evaluations, together with a brief rationale, is published online in The Lancet Oncology; the detailed assessments will be published as Volume 112 of the IARC Monographs. IARC’s press release announcing its evaluation is available at http://www.iarc.fr/en/media-centre/iarcnews/pdf/MonographVolume112.pdf.
Monsanto, on behalf of glyphosate task forces in the U.S. and the European Union (EU), immediately voiced its vigorous disagreement with IARC’s conclusions, noting various scientific issues with IARC’s evaluation that resulted in a conclusion that has not been reached following review by the U.S. Environmental Protection Agency (EPA) and in the EU. Monsanto’s statement is available at http://news.monsanto.com/news/monsanto-disagrees-iarc-classification-glyphosate.
The IARC announcement with regard to glyphosate will further energize both sides of the debate about genetically modified organism (GMO) crops, since there are several crops that have been genetically engineered to be resistant to glyphosate. If some occupational risks are identified as needing possible further mitigation, the distinction between food safety issues and occupational risks may be lost in the rhetoric. Opponents of GMO crops and those who support GMO food product labels can be expected to cite the IARC designation regardless of any further clarification or nuance that the scientific debate over the data might provide. Defenders of the technology will insist that not only is the IARC designation wrong and misleading, but it is clearly at odds with numerous other conclusions reached by multiple competent governmental authorities concerning the safety of using glyphosate and especially consuming GMO crops.
Regardless of Monsanto’s rapid and detailed response, “dueling science” views are not helpful towards enhancing public confidence in the safety of the food supply, which is ultimately where this headline will be most influential. That will only add pressure on the review process and conclusions contained in the expected EPA registration review of glyphosate data scheduled for completion in 2015.
The U.S. Environmental Protection Agency (EPA) and the U.S. Food and Drug Administration (FDA) have executed a Memorandum of Understanding (MOU) on Information Sharing regarding the sharing of data and other confidential information related to substances that may be present in human food, animal food and feed, animal drugs, and cosmetics. EPA and FDA state in the MOU that the sharing of such information will “open channels of communication between the agencies” and will “serve to facilitate [EPA and FDA’s] accomplishment[s] of their respective missions.” The MOU sets forth the safeguards to be implemented with regard to the sharing of confidential information to “protect against unauthorized use or disclosure of any non-public information shared or exchanged pursuant to this MOU.”
EPA and FDA’s decision to share information will have a direct impact on companies with substances that have pesticidal and non-pesticidal applications. As noted in an example in the MOU, an antimicrobial food wash that can also be a labeled pesticide for other uses could have data submitted to FDA demonstrating that the product’s use is safe and does not adulterate food and data submitted to EPA demonstrating that the pesticide will not cause unreasonable adverse effects on the environment. Companies that have submitted information to EPA and FDA should be mindful of the potential that such information could be shared between the agencies, and consider whether additional safeguards or data compensation protection may be needed.
On March 2, 2015, the United States Environmental Protection Agency (EPA) and the American Chemistry Council (ACC) executed a settlement agreement (Agreement) following the ACC’s petition for judicial review of EPA’s antimicrobial pesticide data requirements final rule issued on May 8, 2013 (78 Fed. Reg. 26936). The judicial review proceeding was held in abeyance while settlement discussions were pursued between EPA and ACC for this final rule, entitled “Data Requirements for Antimicrobial Pesticides.”
In the settlement, EPA agreed to propose, within four months of the Agreement becoming final, a guidance document entitled Antimicrobial Pesticide Use Site Index (USI), and provide a 30-day comment period. The USI guidance will provide descriptions of direct food uses, indirect foods uses, and nonfood uses.
In addition, EPA agreed to issue, within 60 days of the Agreement becoming final, an interim guidance document explaining EPA’s interpretation of the 200 parts per billion (ppb) residue level above which additional toxicology testing would be required for indirect food uses. Then, within two years and six months of the Agreement becoming final, EPA agreed to propose a correction to the final rule that “will make the language of the Final Rule as it pertains to the 200 ppb level established in 40 C.F.R. § 158.2330(d) consistent with the U.S. Food and Drug Administration’s use of that same level by making clear that the 200 ppb level established in the Final Rule is based on total estimated daily dietary intake, and is not based on the amount of residue present on only a single commodity.”
Supreme Court Confirms That Agency Interpretative Rules Do Not Require Notice and Comment, Even When They Change a Prior Interpretation
In a March 9, 2015, decision in Perez v. Mortgage Bankers Ass'n., the U.S. Supreme Court unanimously held that an interpretative rule issued by an administrative agency does not require notice and opportunity for comment, even if the interpretative rule construes a substantive (or "legislative") rule previously issued by the agency and even if the interpretative rule alters a prior interpretation of the same rule. In the Perez decision, the Court explicitly overruled Paralyzed Veterans of America v. D.C. Arena, L.P., a 1997 decision by the U.S. Court of Appeals for the D.C. Circuit that held that notice and comment is required whenever an agency issues an interpretative rule altering a prior interpretation of a legislative rule, based on the premise that adopting a new interpretation of a rule is tantamount to an amendment of the underlying rule.
Pursuant to Administrative Procedure Act (APA) Section 553(b)(A), notice and comment rulemaking procedures do not apply to "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice." In Perez, the Supreme Court concluded that "[t]he text of the APA answers the question presented." Finding the APA exemption for interpretative rules to be "categorical," the Court held that "it is fatal to the rule announced in Paralyzed Veterans." Since an agency can adopt an initial interpretative rule without notice and comment, it is "also not required to use those procedures when it amends or repeals that interpretive rule." The actual legal effect of this new ruling is likely to be limited in scope, because the Paralyzed Veterans decision only required an agency to use notice and comment procedures in those instances where the agency was both interpreting an underlying substantive regulation and revising or contradicting a prior interpretation of that regulation.
Although the APA does not define "interpretative rules," the general consensus is that such rules only are intended to announce how the agency intends to construe a particular statute or regulation. Interpretative rules are not supposed to have any independent force of law. While an agency must generally follow its own interpretation of a statute or regulation unless and until it has been revised, no party outside of the agency is required to conform to that same interpretation. This contrasts to a legislative rule, which binds parties other than the agency as well, and which can only be lawfully adopted after providing notice and opportunity for comment. A "statement of policy" has even less formality than an interpretative rule, because even the agency that issued a policy statement is free to deviate from that policy without formally withdrawing or revising it.
While the Supreme Court was unanimous in setting aside the Paralyzed Veterans precedent, the Court did not clearly resolve the question of how much judicial deference should be afforded to such agency interpretations. It can be argued that an interpretation adopted by an agency without notice and comment should be afforded a lesser degree of judicial deference, but there has been a general trend in recent years toward affording judicial deference to agency interpretations in situations where an underlying statute or regulation is ambiguous. In three concurring opinions, several conservative members of the Court (Scalia, Thomas, and Alito) signaled that they are willing to revisit the 1945 Supreme Court decision in Bowles v. Seminole Rock & Sand Co., a case holding that reviewing courts should generally defer to the agency's interpretation when construing an ambiguous regulation. Scalia's concurring opinion goes even further, indicating that he would like to revisit the general rule announced in the seminal 1984 precedent Chevron v. NRDC, which affords substantial judicial deference to an administrative agency in construing ambiguous statutory provisions. Unlike an administrative agency's interpretation of an ambiguous regulation, however, ambiguous statutory provisions will typically be construed in the context of promulgation of a substantive or legislative rule, and this type of exercise means that the agency's statutory construction can only be adopted after notice and comment.
On balance, it is possible that the Perez decision could encourage administrative agencies to issue new interpretative rules or even policy statements in lieu of using more elaborate notice and comment rulemaking procedures. Such an approach could be particularly tempting where an agency anticipates that a reviewing court is likely to give deference to its interpretation. After all, the principle that the public is not bound by an interpretative rule or policy statement will provide little solace if regulated parties must effectively presume that the agency's announced construction is correct.
This risk is mitigated somewhat by language in the majority opinion that makes it clear that a newly adopted agency interpretation may require greater substantive justification and be entitled to less judicial deference when it conflicts with a prior interpretation. Moreover, it is possible that the Perez decision could ultimately undermine Seminole Rock, a case that has encouraged reviewing courts to give administrative agencies a high degree of discretion when interpreting ambiguous provisions in their own rules. After all, when the agency is free to resolve clearly such ambiguities through amendments adopted through notice and comment rulemaking, there may be less justification for resolving the same ambiguities through non-binding interpretations.
This annual report details changes in processes, practices, and policies for Fiscal Year (FY) 2014 that ran from October 1, 2013, through September 30, 2014. The report is divided into different sections related to: (1) pesticide registration service fees; (2) maintenance fees; and (3) process improvements in the pesticide program; all of which can be accessed on EPA’s website at the below links. Specifically, the report covers the following topics:
Pesticide Registration Service Fees
Process Improvements in the Pesticide Program
EPA’s report addressing process improvements in the pesticide program discusses several areas where EPA believes its registration programs have improved, either through increased efficiency, consistency, and/or transparency. The areas discussed are:
* EPA’s use of the “Lean” business model to improve business processes;
* Delegation of authority to EPA’s Biopesticides and Pollution Prevention Division (BPPD) to expedite fast track and notification actions to reduce approval times and the number of actions in backlog status;
* Biopesticide Industry Alliance Registration Workshops to improve quality of application submissions;
* Release of testing guidelines to clarify scenarios under which efficacy testing at the lower certified limit is needed;
* Reduction of registered products for which EPA is taking action under the Antimicrobial Testing Program;
* Continued crop grouping regulations to save resources and reduce the number of required residue studies;
* Establishment of a Pre-decisional Determination Due Date to provide adequate time to reach agreement with the registrant on required label changes prior to EPA approving the label; and
* International work sharing to assist in individual country registration decisions while striving to harmonize regulatory decisions with global partners.
1. Of approximately 6,300 labels submitted to EPA in FY 2014, almost half included an electronic label. Comparing the statistics from FY 2011 to FY 2014 reveals a steady increase of approximately 10 percent each year in the percentage of labels submitted in electronic format.
2. The use of electronic label review software varies significantly across the three regulatory divisions with the Registration Division reporting the highest use, the Antimicrobials Division reporting moderate use, and BPPD the lowest use.
PRIA 3 is effective from October 1, 2013, through September 30, 2017.
Specifically, the Directive provides: “a Member State may adopt measures restricting or prohibiting the cultivation in all or part of its territory of a GMO, or of a group of GMOs defined by crop or trait, once authorised in accordance with Part C of this Directive or with Regulation (EC) No 1829/2003, provided that such measures are in conformity with Union law, reasoned, proportional and non-discriminatory and, in addition, are based on compelling grounds.” The grounds stated include those related to:
* Environmental policy objectives;
A Member State also can seek to have all or part of its territory excluded from the geographical scope during the authorization procedure for a GMO.
The passage of this Directive is the culmination of years of negotiations between EU Member States that have disagreed over the cultivation of GMOs in their territories. The new rules, which will allow EU countries to opt-out from otherwise approved EU GMOs, are sure to be controversial as Member States, industry, farmers, and the public work out details related to the potentially non-scientific grounds that a particular Member State relies upon in restricting or banning use of a GMO, and as Member States develop measures that allowed GMOs must take to avoid “possible cross-border contamination.”
The legislation will enter into force following its publication in the Official Journal of the EU, which is expected in Spring 2015.
As various members of the EU continue to oppose production of GMO crops, these policies will remain trade irritants to the U.S. and other countries where GMO crops have been widely adopted. This comes as trade negotiations are ongoing and the EU allowance of trade barriers based on the “precautionary principle” remains a major point of disagreement between the EU and the U.S. (with its reliance on “science-based risk assessment policies”). This latest development, which further allows EU Member States to reject GMO crops under various criteria, will not make resolving any current or future trade disagreements any easier.
The U.S. Environmental Protection Agency (EPA) issued an updated schedule for the Pesticide Registration Review program that sets forth a timetable for opening dockets for the next three years, through end of fiscal year 2017 (September 2017).
Through the Pesticide Registration Review program, EPA reviews all registered pesticides at least every 15 years, as mandated by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Following the newly issued schedule, all pesticides registered as of October 1, 2007, will have entered the registration review process with the exception of certain biopesticides. All pesticides registered by October 1, 2007, are scheduled to be assessed by October 1, 2022.
The rodenticide and triazole groups of chemicals have had their schedules adjusted so that all chemicals in the groups will be assessed during the same time frame. The rodenticides have dockets opening in first and second quarter 2016, while the triazoles have dockets opening from fourth quarter 2015 through third quarter 2016. In addition, EPA states that it has moved some chemicals that it believes may have significant data needs earlier in the schedule, but does not specify which were moved. Those with significant moves forward in the schedule (all moved from fourth quarter 2015 to first quarter 2015) include yellow mustard seed, sulfonic acids, fluazifop butyl, isomers, and flonicamid.
More information about the Pesticide Registration Review schedule is available here.
Border Security: EPA's Increased FIFRA Import Enforcement Initiative