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.

By James V. Aidala, Lisa M. Campbell, and Sheryl Lindros Dolan

Although the Office of Pesticide Programs (OPP) was able to operate through December 28, 2018, despite the current partial federal government shutdown, EPA will now join other parts of the federal service and shut down.

Meanwhile, the Pesticide Registration Improvement Extension Act (PRIA 3) sunset on December 21, 2018, in the absence of a Continuing Resolution (CR) and the onset of the shutdown.  According to Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 33(m)(2)(B) [7 USC § 136w-8(m)(2)(B)], the fee for any pesticide application that is subject to a service fee and submitted after December 21, 2018, will be reduced by 70 percent below the fee in effect on September 30, 2017, but no corresponding review period will be assigned.  Any applications submitted now thus will not have a required EPA review period and thus will likely be the lowest priority for EPA review when the shutdown ends.  For this reason, despite the lower fees, registrants should not submit applications until PRIA is enacted and defined review periods once again are established.

The enactment of some version of PRIA is expected soon, especially given the consequences of the current situation for EPA and government functions generally.  Most likely any kind of authorization for funding government operations, such as a CR for a limited time period or for Fiscal Year 2019, is expected to include at least a simple reauthorization of the PRIA 3 for the duration of the CR.  This would also mean the new Congress will have to act sometime in the next session to reauthorize PRIA either to continue PRIA 3 beyond a new CR time period or approve amendments such as those considered as PRIA 4 during the 115th Congress.  Given the difficulty of Congress in reaching agreement on appropriations legislation, it is possible that PRIA reauthorizations continue to be included as part of CRs for an indefinite time period.

This uncertainty about the status of PRIA may also impact generally the program’s ability to plan and schedule review of registration applications.

Regardless of when PRIA is enacted, however, the shutdown will prevent EPA action on newly submitted applications.  OPP states on its web site:

  • Applications received on or prior to December 21, 2018, will be reviewed under the decision time frames specified in PRIA 3;
  • Applications received after December 21, 2018, will be subject to the provisions of FIFRA Section 33(m)(2)(B); and
  • Applications received after December 28, 2018, will not be considered as received or processed until the shutdown ends.

Registrants should monitor developments closely. 


 

By James V. Aidala and Lisa M. Campbell

On December 19, 2018, the Senate passed a short-term Continuing Resolution (CR) to prevent a government shutdown and continue funding for the government through February 8, 2019.  Currently, however, given the uncertainty over border wall funding, it appears likely that there may well be a government shutdown for some period of time.  Until the immigration issue is ultimately resolved in an eventual agreement, however, the majority and Democratic staff of the U.S. House of Representatives Agriculture Committee expect that the Pesticide Registration Improvement Act (PRIA) extension will be included in the CR.  Both the majority and minority in both the House and Senate have reportedly agreed to support PRIA in the new year.

The recent House Conference Report for H.R. 2, the Agriculture Improvement Act of 2018, or the Farm Bill, deleted previously inserted provisions regarding the Pesticide Registration Improvement Enhancement Act of 2017.  The House version of the Farm Bill included the enactment of the Pesticide Registration Improvement Enhancement Act of 2017 (H.R. 1029, Section 9119), but the Senate version contained no comparable provisions.  More information on the Farm Bill Conference Report is available in our memorandum “Congress Passes Farm Bill Conference Report.”

Commentary

The positive news is that many members of both the House and Senate appear to remain committed to legislative reauthorization of PRIA.  At the same time, with the change in party control in the House of Representatives, reauthorization may continue to be delayed as the new Congress with new Committee leadership devotes time and energy to competing priorities. 

In addition, as PRIA amends the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), it could provide an opportunity for amendments to FIFRA outside of the funding context to be offered by members interested in other pesticide-relevant issues.  Debate on additional pesticide issues would only likely lead to further delay and uncertainty about long-term reauthorization of PRIA.


 

By Timothy D. Backstrom

On December 12, 2018, the U.S. Environmental Protection Agency (EPA) announced a proposed joint stipulation and proposed stipulated notice of dismissal for Ellis v. Keigwin, No. 3:13-CV-1266 (N.D. Cal).  83 Fed. Reg. 63865.  The Federal Register notice states that the parties are “proposing to reach a settlement in the form of a joint stipulation" that would, among other provisions “set a June 30, 2022, deadline for EPA to complete ESA [Endangered Species Act] effects determination for EPA’s registration reviews of clothianidin and thiamethoxam and, as appropriate, request initiation of any ESA consultations with the FWS [U.S. Fish and Wildlife Service] that EPA may determine to be necessary as a result of those effects determinations.”  EPA would “also agree to initiate informal consultation" with the FWS prior to completing its effects determinations.  In addition, defendant-intervenors Syngenta, Bayer, and Valent (the registrants of products containing clothianidin and thiamethoxam) have agreed to request that EPA voluntarily cancel the registrations under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 6(b)(1) for 12 specific products that contain either clothianidin or thiamethoxam.  EPA is requesting comments on both the proposed joint stipulation and the stipulated notice of dismissal.  Comments are due by January 11, 2019.

The proposed joint stipulation and dismissal have been agreed to by all parties, including the plaintiffs, EPA, and defendant-intervenors Bayer, Syngenta, Valent, and CropLife America.   This stipulation was negotiated by the parties after the District Court in the Ellis case issued an order ruling on cross motions for summary judgment on May 8, 2017.  In that order, the court dismissed plaintiffs’ claims that EPA improperly denied a petition requesting that EPA immediately suspend products containing clothianidin, and also dismissed other claims that EPA violated FIFRA requirements for products containing clothianidin and thiamethoxam.  At the same time, the court granted summary judgment for the plaintiffs on claims arising under ESA Section 7(a)(2), because EPA had failed to consult with FWS before taking particular actions concerning 59 pesticide products containing clothianidin or thiamethoxam.  As part of the order, the court directed the parties to schedule a settlement conference to discuss an appropriate remedy, and the proposed stipulation is the result of those settlement discussions.

Commentary

The Ellis case was brought by beekeepers and honey producers who wanted EPA to take immediate action to ban or restrict clothianidin and thiamethoxam products based on their belief that these neonicotinoid active ingredients pose an unacceptable risk to pollinator species.  The court found that the plaintiffs did not demonstrate that these registered pesticidal active ingredients present an "imminent hazard" that would warrant suspension or emergency suspension under FIFRA Section 6(c), and the court also rejected the plaintiffs' other FIFRA claims concerning these products.  In contrast, the court granted relief under the ESA because EPA did not make the required effects determinations concerning endangered and threatened species before taking various registration actions for pesticides containing these active ingredients, and the plaintiffs asserted a specific interest in those endangered or threatened species that might be adversely affected by these products.  At this juncture, it is unknown whether the ESA review required by the agreed joint stipulation will lead to any further restrictions on these active ingredients that would have a collateral benefit for domesticated pollinators.

The proposed joint stipulation and the proposed stipulated notice of dismissal are available in EPA Docket No. EPA-HQ-OGC-2018-0745.    


 

By Lisa M. Campbell and Timothy D. Backstrom

On December 6, 2018, the U.S. Environmental Protection Agency (EPA) announced it was proposing a rule (83 Fed. Reg. 62760) to harmonize the EPA-specific regulations regarding research involving human subjects conducted or sponsored by EPA or submitted to EPA for regulatory purposes with the revised regulations of the Federal Policy for the Protection of Human Subjects (Common Rule) issued on January 19, 2017 (82 Fed. Reg. 7149).  Specifically, EPA is proposing to amend subparts C, D, K, and M of its regulations relating to human research.  Subpart K, titled “Basic Ethical Requirements for Third-Party Human Research for Pesticides Involving Intentional Exposure of Non-Pregnant, Non-Nursing Adults,” contains the majority of the revisions.  Subparts C and D will be revised to update several numerical citations and subpart M will be revised to correct a typographical error. 

By way of background, the Common Rule governs research with human subjects conducted or supported by federal agencies, but EPA has also promulgated parallel requirements governing research conducted by third parties and then submitted to EPA for regulatory purposes.  In particular, Subpart K addresses human research that may be conducted by third parties and then utilized to support registration of pesticides.   Congress mandated various revisions to the Common Rule (including additional requirements for research involving pregnant women, fetuses, and children), and EPA is now modifying the EPA-specific requirements for human research to assure consistency and uniformity.  These changes are also intended to assure that a single Institutional Review Board (IRB) review meeting the requirements of the Common Rule will be sufficient for any given study.

The proposed rule states that subpart K, “in establishing a process for review of third-party research involving intentional exposure of human subjects, borrows heavily from the provisions contained in the previous version of the Common Rule,” and that it will be revised to “maintain consistency of [IRB] review between agency-conducted or agency-sponsored human research and third-party human research.”  EPA states the consequence of not resolving these discrepancies will be to “create confusion and, more seriously, potential compliance and/or legal liabilities for researchers, institutions, and sponsors who must follow EPA regulations.”  Comments on the proposed rule are due by February 4, 2019

Compliance with the revisions to the Common Rule originally was set for January 19, 2018, but it has been extended to January 21, 2019.  The compliance date for the “cooperative research” Section remains January 20, 2020.  This proposed rule to revise the requirements for third-party research submitted to EPA would not make substantive changes to the previously adopted final revisions to the Common Rule.  The final rule states that cooperative research projects are “those projects covered by this policy that involve more than one institution,” any institution located in the United States that is engaged in cooperative research must “rely upon approval by a single IRB for that portion of the research that is conducted in the United States,” and the reviewing IRB “will be identified by the Federal department or agency supporting or conducting the research or proposed by the lead institution subject to the acceptance of the federal department or agency supporting the research.”

More information on the revision to the Common Rule is available in our blog item “Federal Agencies Announce Revision to Modernize Federal Policy for the Protection of Human Subjects” and on our blog under key phrase Common Rule.


 

By Lisa M. Campbell and Lisa R. Burchi

On November 7, 2018, the U.S. Environmental Protection Agency (EPA) announced that it was ordering Pool Water Products Inc. to stop selling an improperly registered pesticide, ALL CLEAR 3” Jumbo Chlorinating Tablets.  The announcement states that even though the ALL CLEAR 3” Jumbo Chlorinating Tablets product was registered with EPA, Pool Water Products was selling and distributing an unregistered version of the product made in China that has not been evaluated by EPA.

EPA’s action, which it states applies to nationwide distribution, transport and sales of the product, follows a statewide stop-sale order issued earlier this month by the Arizona Department of Agriculture when state inspectors discovered the unregistered pesticide, which is used to disinfect pools, during an August 30 inspection of the company’s Phoenix warehouse.

This case exemplifies the need for companies to understand Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) registration and amendment requirements, and the importance that a product’s label, formula, and manufacturing process match exactly with the information submitted to EPA and upon which EPA relied in approving the registration.  Many composition and processing changes require an amendment to be approved by EPA; failure to do so could result in an enforcement action such as this one. 

More information on pesticide registration issues is available on our blog.


 

By Lisa M. Campbell, James V. Aidala, and Timothy D. Backstrom

On October 31, 2018, the U.S. Environmental Protection Agency (EPA) announced that it is extending the registration of dicamba for two years for “over-the-top” use (application to growing plants) to control weeds in fields for cotton and soybean plants genetically engineered to resist dicamba.  EPA states that the registration for these dicamba products will expire on December 20, 2020, unless EPA decides to further extend it.  EPA states that the label changes described below were made to ensure that these products can continue to be used effectively while addressing potential concerns to surrounding crops and plants.  EPA’s dicamba registration decisions for the 2019-2020 growing season are:

  • Two-year registration (until December 20, 2020);
  • Only certified applicators may apply dicamba over-the-top (those working under the supervision of a certified applicator may no longer make applications);
  • Prohibit over-the-top application of dicamba on soybeans 45 days after planting and cotton 60 days after planting;
  • For cotton, limit the number of over-the-top applications from four to two (soybeans remain at two over-the-top applications);
  • Applications will be allowed only from one hour after sunrise to two hours before sunset;
  • The downwind buffer for all applications will remain at 110 feet, but in those counties where endangered species may exist, there will also be a new 57-foot buffer around the other sides of the field;
  • Clarify training period for 2019 and beyond, ensuring consistency across all three products;
  • Enhanced tank clean out instructions for the entire system;
  • Enhanced label to improve applicator awareness on the impact of low pH’s on the potential volatility of dicamba; and
  • Label clean up and consistency to improve compliance and enforceability.

EPA states that it has reviewed substantial amounts of new information and has determined that the continued registration of these dicamba products with the specified use restrictions meets the Federal Insecticide, Fungicide, and Rodenticide Act’s (FIFRA) registration standards.  EPA also determined that extending these registrations with the new safety measures will not affect endangered species.  More information on this extension is available on EPA’s website; more information on other dicamba issues is available on our blog.

Commentary

As expected, this decision allows the continued use of the newer dicamba formulations intended to be applied on dicamba-resistant crop varieties.  Of particular note is that EPA has not granted a permanent Section 3 registration, instead granting a time-limited, two-year registration which EPA states will expire at the end of 2020.  This will allow EPA more time to assess in more detail whether the new use restrictions will further reduce problems of misuse, label complexity, or unexpected drift which have been reported in past growing seasons. 

The most vexing issue behind plant injury reports over the past few years is whether these reports are mostly due to misuse (e.g., applicators who do not use the new formulations designed to reduce volatility, which is a label violation since the “old dicamba” product is considered more prone to cause drift injury), or, are due to characteristics of the new formulations which are not yet fully understood and which lead to unexpected volatility and other drift problems.  Some have also argued that problems are also due to the difficulty (or reluctance) in following the more prescriptive requirements for the new formulations.  The two-year renewal will continue to see EPA closely monitor injury and misuse reports, as well as continued academic and registrant research into the likely cause of any reported problems.

EPA’s decision also imposes further requirements for additional training, timing, record-keeping, and stewardship when using the new dicamba formulations that are designed to reduce or to eliminate those plant injury reports that are not clearly attributable to misuse of the older dicamba products.  EPA will rely on state officials to report and evaluate the experience of users in their respective states, especially concerning whether the additional training and stewardship requirements significantly reduce local injury reports. 


 

By James V. Aidala and Margaret R. Graham

On September 28, 2018, the U.S. Environmental Protection Agency (EPA) announced it was accepting public nominations of scientific experts to be considered for ad hoc participation on the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Scientific Advisory Panel (SAP) through membership on the Food Quality Protection Act (FQPA) Science Review Board (SRB).  83 Fed. Reg. 49091.  EPA states that “all nominees will be considered for ad hoc participation providing independent scientific advice to the EPA on health and safety issues related to pesticides”  and requests that any individuals nominated have expertise in one or more of the following areas:  biochemistry; chemistry; epidemiology; human health risk assessment; pathology; physiologically based pharmacokinetic (PBPK) modeling; aquatic modeling; pharmacology; ecological risk assessment; environmental exposure and fate; environmental toxicology; occupational, consumer, and general exposure assessment; toxicology; dose response modeling; environmental engineering; statistics; water quality monitoring; hydrologist; Geographic Information Systems (GIS) specialist; computational toxicology; entomology; veterinary entomology; medical entomology, insect ecology, allergenicity, research veterinarian; inhalation toxicology; volatile organics; endocrinology, alternative testing methods, high throughput testing approaches, adverse outcome pathways, cross species extrapolation, and systematic review.  The Designated Federal Officer’s to whom nominations should be provided is listed in the Federal Register notice.  Nominations are due by November 13, 2018

Commentary

FPQA added this SRB to the previous authorization for the SAP to recognize the expanding universe of scientific questions which often underlie issues surrounding pesticide registration.  The FQPA amendment simply adds that “60 scientists who shall be available to the SAP” without specifying any particular disciplines or skills which might be useful to assist with the deliberations and review by the SAP.  This was intended to continually allow EPA to adapt to changing or evolving scientific questions without constantly tinkering with the membership of the SAP itself.  At the same time, it allows these ad hoc members to be recognized for their contributions and to be compensated in the same manner as SAP members.  


 

By Timothy D. Backstrom and Lisa M. Campbell 

On September 24, 2018, in the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit), respondents U.S. Environmental Protection Agency (EPA) and Acting EPA Administrator Andrew Wheeler (collectively EPA) petitioned for an en banc and panel rehearing concerning the Ninth Circuit’s August 9, 2018, decision that granted judicial review of EPA’s initial order denying an administrative petition by the Pesticide Action Network North America (PANNA) and the Natural Resources Defense Council (NRDC) to revoke all tolerances and cancel all registrations for chlorpyrifos, and that specifically directed EPA to revoke all tolerances and cancel all registrations for chlorpyrifos within 60 days.  More information regarding the August 9 decision is available in our blog item “Ninth Circuit Directs EPA to Revoke all Tolerances and Cancel All Registrations for Chlorpyrifos.”

EPA’s petition for rehearing sets forth three discrete procedural arguments as to why rehearing should be granted.  The first argument is that the panel erred because “an initial decision denying an administrative petition under 21 U.S.C. § 346a(d)(4)(A)(iii) is simply not within the jurisdiction of this Court to review ….”  EPA contends that the decision to grant judicial review of the initial EPA order, without waiting for EPA to respond to objections or to issue a final order, conflicts with the applicable precedent in both the Ninth Circuit and the U.S. Court of Appeals for the Second Circuit (Second Circuit).

EPA’s second argument is that, even if the initial EPA order is deemed to be reviewable, the panel’s decision directing EPA to take specific actions on remand “exceeded the remedial authority granted the courts by Congress” and conflicts with applicable Supreme Court precedent.  EPA identifies some other actions that EPA could hypothetically have decided to take on remand, including denying the administrative petition based on a finding that the Federal Food, Drug, and Cosmetic Act (FFDCA) safety standard is met, reducing the affected tolerances, or revoking only certain tolerances.  EPA argues that the court was not empowered to direct EPA to take specific actions, but should have instead remanded the matter to EPA “for further consideration in light of the panel’s holding that EPA may not ‘decline to revoke chlorpyrifos tolerances [without] mak[ing] a finding of reasonable certainty that the tolerances were safe.’”

EPA’s third argument is that, in the event a broader rehearing is not granted, a rehearing by the panel should nonetheless be convened to modify the relief ordered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  EPA argues that revocation of the chlorpyrifos tolerances would not lead automatically to cancellation of all chlorpyrifos registrations, because there are also some non-food uses for chlorpyrifos.  EPA states that “FIFRA incorporates the safety standard of the FFDCA only with respect to food-use pesticides …” (emphasis in original).  EPA also notes that EPA lacks authority to comply with the court’s order to cancel all chlorpyrifos registrations within 60 days, because EPA must follow the statutory procedure for cancellation under FIFRA Section 6(b), which requires EPA to forward a proposed cancellation first to the U.S. Department of Agriculture (USDA) and the FIFRA Scientific Advisory Panel (SAP), and to afford the affected registrants and other adversely affected persons an opportunity to request an adjudicatory hearing to contest the proposed cancellation.  EPA states that the panel should provide at least a limited rehearing, because it granted relief without the benefit of any prior briefing on remedy in which these significant problems would have been identified.

Commentary

Although parties to appellate litigation often seek rehearing or rehearing en banc, federal agencies represented by the U.S. Department of Justice (DOJ) are considerably more selective about the circumstances in which they will file a petition for rehearing.  There are some compelling arguments supported by precedent that judicial review is not available under the FFDCA for the type of initial order concerning which the petitioners in this case sought review.  Moreover, EPA has identified some practical factors which make it literally impossible for EPA both to adhere to mandatory statutory procedures under FIFRA and to comply with the terms of the court’s order.  For this reason, even if a broader rehearing is not granted concerning the jurisdictional question or the authority of the court to order EPA to take specific actions, a narrower rehearing before the appellate panel may be ordered, which would allow the parties an opportunity for further briefing on remedy and permit the court to modify its order.

More information on chlorpyrifos issues, including further proceedings in this case, is available on our blog under key word chlorpyrifos.


 

By Timothy D. Backstrom and Lisa M. Campbell

On September 19, 2018, the California Department of Pesticide Regulation (DPR) proposed a regulation to designate chlorpyrifos as a toxic air contaminant (TAC).  DPR states that this proposal is being presented “after an extensive period of scientific and public review.”  The proposed rule is based on a final evaluation issued in July 2018, in which DPR’s Human Health Assessment (HHA) Branch determined that chlorpyrifos meets the quantitative criteria for designation as a TAC.  To make that determination, DPR utilized an inhalation reference concentration (RfC) based on new animal studies with chlorpyrifos that reported neurodevelopmental effects at exposure levels well below the threshold for acetylcholinesterase (AChE) inhibition.  More information on DPR’s final TAC evaluation is available in our blog item "California DPR Releases Final Toxic Air Contaminant Evaluation for Chlorpyrifos."  In August 2018, DPR posted the Scientific Review Panel on TAC’s findings on chlorpyrifos and the Director’s Proposed Determination Concerning Chlorpyrifos as a TAC.

DPR is providing a 45-day public comment period (until November 9, 2018) on the proposed regulation to list chlorpyrifos as a TAC.  Written comments may be submitted to .(JavaScript must be enabled to view this email address).  In addition, DPR is holding a hearing to receive oral comments on this issue on November 8, 2018, at 2:00 p.m. (PT) at the California Environmental Protection Agency headquarters, 1001 I Street, in Sacramento, California.  DPR states that it anticipates that the proposed regulation to list chlorpyrifos as a TAC will be effective in 2019.  Even though DPR is proposing to list chlorpyrifos as a TAC, DPR states that “possible mitigation measures to protect human health and the environment will be considered through a subsequent process involving consultation with other state and local agencies including the Office of Environmental Health Hazard Assessment (OEHHA) and the California Air Resources Board (CARB).”

Commentary

The U.S. Environmental Protection Agency (EPA) previously issued a determination that the default 10X safety factor for infants and children established by the Food Quality Protection Act (FQPA) should be retained for chlorpyrifos.  This determination was based primarily on epidemiology studies that purported to show adverse neurodevelopmental outcomes in humans at exposure levels below the threshold for AChE inhibition, but the methodology used in these epidemiology studies has been harshly criticized by the pesticide industry.  In contrast, the DPR TAC proposal is predicated on a determination that new animal studies with chlorpyrifos report neurodevelopmental effects below the threshold for AChE inhibition, and DPR views the epidemiology studies utilized by EPA to make its FQPA determination as providing corroboration for the animal data.  At this juncture, it is not clear how EPA will characterize the new animal data concerning chlorpyrifos.  In any case, questions are likely to remain concerning EPA’s use of data concerning chorpyrifos to establish the FQPA safety factor for other organophosphate (OP) pesticides.

More information on chlorpyrifos issues and California DPR regulations is available on our blog.


 

By Margaret R. Graham

On September 20, 2018, the U.S. Environmental Protection Agency (EPA) announced it would be hosting a webinar titled “Best Practices for Ground Application” on October 25, 2018, from 2:00 p.m. to 3:30 p.m. (EDT).  The announcement states that this webinar is tailored for “growers, pesticide applicators, pest management professionals, and other interested stakeholders who work in crop production.”

The webinar will be presented by Dr. Greg Kruger, a weed science and application technology specialist from the University of Nebraska-Lincoln and will cover different methods of ground application, best practices for reducing pesticide spray particle drift when using ground application equipment, and a discussion of the optimization of weed control.  Registration is available online.

More information on other pesticide applicator issues, including the Worker Protection Standard, is available on our blog.


 
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