By Lisa M. Campbell and Timothy D. Backstrom

In two recent orders issued in the neonicotinoid seed treatment case Anderson v. McCarthy, the U.S. District Court for the Northern District of California declined to take immediate action in response to a motion by the U.S. Environmental Protection Agency (EPA) requesting that the Court dismiss the case for lack of subject matter jurisdiction.  This case involves allegations by a coalition of beekeepers, farmers, and non-governmental organizations (Petitioners) that EPA has incorrectly applied the treated article exemption to seeds coated with neonicotinoid pesticides.

The Court issued an order denying the EPA motion to dismiss on May 13, 2016.  In that order, the Court concluded that factual issues to be resolved in deciding whether a 2013 EPA guidance document constitutes a final reviewable action are so “intertwined” with the substantive issues in the case that it would be inappropriate to try to resolve the jurisdictional issues until after the filing of summary judgment motions.  The Court stated:

• If the 2013 Guidance did consummate a new rule, and thus a final agency action, then defendants clearly violated federal law by failing to comply with rulemaking requirements.  If the 2013 Guidance did not constitute final agency action, then subject-matter jurisdiction is lacking, and the case must be dismissed.

In the May 13, 2016, order, the Court also stated that the decision to defer action on the jurisdictional issues was a “close call,” because “defendants put forth a strong argument in support of dismissal of the lawsuit at the Rule 12 stage.”

On May 23, 2016, EPA filed another motion requesting that the Court clarify the May 13, 2016, order.  In its clarification motion, EPA pointed out that the May 13, 2016, order addressed only three of the counts in the complaint challenging the 2013 Guidance, but did not address Count II, which alleged a general “failure to act” because EPA has not regulated neonicotinoid coated seeds as pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  According to EPA, resolution of this count involves a “pure issue of law,” because the Petitioners “failed to identify any discrete, legally-required action that EPA has failed to perform.”

The EPA motion for clarification was scheduled to be heard on July 21, 2016, but the Court issued an order on July 14, 2016, vacating that hearing.  The new order stated that “defendants raised a fair point,” because “the Court’s order on the motion to dismiss failed to expressly come to grips with that part of the motion directed at the ‘failure to act’ claim for relief.”  Nevertheless, the Court concluded that “no harm will be done in postponing resolution of that issue until summary judgment.”

Commentary

Although the Court has declined to rule on any jurisdictional question concerning the Petitioners’ complaint posed by EPA until after the parties have filed their respective motions for summary judgment, this case may still be dismissed once the Court engages in the requisite fact-finding.  When the Court stated that EPA made a “strong argument” in support of immediate dismissal, it appeared to be a clear signal that this case may yet be resolved on jurisdictional issues.  The Court may decide based on the record whether the 2013 Guidance was intended to change or to modify the existing policy on applicability of the treated article exemption to coated seeds.  The Court may also consider whether or not EPA intended the policy set forth in the 2013 Guidance to be binding in deciding whether or not to bring subsequent enforcement actions.  In addition, the Court will need to consider whether it can review a general “failure to act” in the absence of any allegation that EPA was required to take some specific action.

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By Lisa M. Campbell, James V. Aidala, and Carla N. Hutton

On March 25, 2016, the U.S. Environmental Protection Agency’s (EPA) Office of Inspector General (OIG) sent a memorandum to Jim Jones, Assistant Administrator, Office of Chemical Safety and Pollution Prevention (OCSPP), announcing that it plans to begin preliminary research to assess EPA’s management and oversight of resistance issues related to herbicide tolerant genetically engineered (GE) crops.  OIG states that its review will include the Office of Pesticide Programs (OPP), as well as other applicable headquarters and regional offices.  OIG’s objectives are to determine:

1. What processes and practices, including alternatives, EPA has provided to delay herbicide resistance;
2. What steps EPA has taken to determine and validate the accurate risk to human health and the environment for approved pesticides to be used to combat herbicide resistant weeds; and
3. Whether EPA independently collects and assesses data on, and mitigates actual occurrences of, herbicide resistance in the field.

OIG states that the anticipated benefit of the project “is a greater understanding of herbicide resistance[,] which will lead to an enhancement of EPA’s herbicide resistance management and oversight.”

Commentary

Pesticide resistance is not a new issue and is one that EPA has affirmatively addressed when granting registrations for new products, GE or not, for some time.  In fact, that newer chemistries often have a more niche mode of action to reduce potential toxicity concerns has led some observers to speculate that greater resistance is one potential trade-off for the development of less toxic materials.

This “investigation” may appear to some to be a response to concerns raised by critics of GE crops generally and to a recent EPA decision to approve Enlist Duo herbicide, a new formulation of 2,4,D- and glyphosate designed to address the problem of weed resistance to glyphosate-tolerant crops.  Glyphosate tolerant crops were first approved some years ago, and their use was so broadly and readily adopted that issues have arisen with regard to potential resistance to some weed species.  EPA is currently expected to approve another GE strain, Dicamba-tolerant crops, to control glyphosate tolerant weeds.

To critics of GE crops, using more herbicides to control problems caused by what they claim is overuse of another herbicide is evidence of a troubling “pesticide treadmill,” which they believe should not have been allowed to occur in the first place.  Rebutting this criticism, others assert that resistance is a problem for all pesticides, not only genetically modified ones, and that with sufficient controls, resistance can be delayed, if not avoided.  Registrants point out that it is very much in their self-interest to take steps to avoid resistance to their products -- once that occurs, the market viability of the product is significantly reduced.

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By Lisa M. Campbell and Lisa R. Burchi

On March 10, 2016, the U.S. Environmental Protection Agency (EPA) filed a motion to dismiss for lack of subject matter jurisdiction and a supporting memorandum of law (Memorandum) in Anderson v. McCarthy, Case No. 3:16-cv-00068 (N.D. Cal. filed Jan. 6, 2016).  In support of its motion, EPA states that the District Court lacks jurisdiction because three of the four claims stated in the complaint “seek review of a guidance document that does not constitute ‘final agency action’ reviewable under the Administrative Procedure Act [APA] or the Federal Insecticide, Fungicide, and Rodenticide Act [FIFRA],” and that the remaining claim “which asserts a failure to regulate under and enforce [FIFRA], fails because Plaintiffs have not identified a clearly imposed duty on the part of EPA to take some discrete action to regulate under or enforce the Act.”

The Complaint was filed by a coalition of U.S. beekeepers, farmers, and affiliated non-government organizations (Petitioners) who requested that the District Court provide declaratory relief stating that seeds coated with neonicotinoid insecticides are not eligible for the “treated article” exemption under FIFRA.  Petitioners argue, in part, that the following language from EPA’s 2013 Inspection Guidance (Guidance) provides a new interpretation of the scope of the “treated article”:

                  Inspectors may also take into account any locations of treated seed planting when identifying locations of potential pesticide sources. Note: Treated seed (and any resulting dust-off from treated seed) may be exempted from registration under FIFRA as a treated article and as such its planting is not considered a “pesticide use.” However, if the inspector suspects or has reason to believe a treated seed is subject to registration (i.e., the seed is not in compliance with the treated article exemption), plantings of that treated seed may nonetheless be investigated.

The Complaint argues that this Guidance improperly expanded the scope of the treated article exemption and was in effect an unlawful rule issued without prior notice and comment. The Complaint seeks an order from the District Court declaring, in part, that “unregistered seeds do not fit within the ‘treated article’ exemption from pesticide regulation in 40 CFR § 152.25(a) and must be regulated as pesticidal products under FIFRA.”

With regard to the scope of the treated article exemption, EPA in its Memorandum states that the language from the Guidance, which is for the use of inspectors and not the general public, is:

               [A] far cry from prescribing the law or policy as to exemption of treated seed as a treated article under 40 C.F.R. § 152.25(a), as they in no way implement, interpret, or prescribe law or policy. Instead, this language in the Inspection Guidance is but one recommendation to inspectors who are investigating all possible sources of pesticides, including treated seed.

EPA further argues that the “note” in its Guidance is “nothing more than the unremarkable reiteration of EPA’s longstanding view of the treated article exemption in 40 C.F.R. § 152.25(a).”  EPA states that the applicability of the treated article exemption has been discussed publicly by EPA since 2003 in an document published jointly by EPA and Canada Pest Management Regulatory Agency entitled “Harmonization of Regulation of Pesticide Seed Treatment in Canada and the United States.”  In that document, EPA states that it “plainly indicates that where the conditions of the treated article exemption are met, ‘[s]eeds for planting which are treated with pesticides registered in the U.S. are exempt from registration as pesticides and may be freely distributed and sold within the U.S.’”  Thus, EPA states that Petitioners “have failed to meet their burden to demonstrate that the Inspection Guidance (or any other action) constitutes “final agency action” as that term is used in the APA, and thus they have not met their burden of demonstrating jurisdiction.”

On March 16, 2016, Intervenor-Defendants CropLife America, the American Seed Trade Association, the American Soybean Association, the National Cotton Council of America, the National Association of Wheat Growers, the National Corn Growers Association, and the Agricultural Retailers Association filed to join EPA’s Motion to Dismiss.

More information on the complaint is available in our blog item EPA Sued Over Guidance Classifying Seeds Coated with Neonicotinoid Insecticides as Treated Articles Exempt from Registration under FIFRA.

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By Lisa M. Campbell and Lisa R. Burchi

On February 2, 2016, the Executive Board of the North American Free Trade Agreement (NAFTA) Technical Working Group on Pesticides (TWG) released details of its proposed strategic framework the next five years.  The environmental regulatory authorities in the U.S., Canada, and Mexico comprise the TWG and developed the strategy.  They are the U.S. Environmental Protection Agency (EPA), Health Canada’s Pest Management Regulatory Agency (PMRA), and Mexico’s Secretaría de Agricultura, Ganadería, Desarrollo Rural, Pesca y Alimentación (SAGARPA) and its Secretaría de Medio Ambiente y Recursos Naturales (SEMARNAT) .

The message from the Executive Board states that the main goal is to “align the North American registration systems for pesticides and products treated with pesticides and make work-sharing a way of doing business.”  There are three strategic objectives listed in the message, as described below.  Information regarding some of these strategic objectives is discussed in our blog.

Objective 1: Identify trade barriers and approaches to promote equal access and simultaneous introduction for pest management tools, which includes:

• MRL Alignment:  This objective includes the alignment of maximum residue limits (MRL) to encourage registrants to consider potential export markets of agricultural commodities intended for treatment with proposed new pesticides or new uses as a way to reduce the number of use expansion submissions and reduce potential trade barriers.
• Expansion, Development and Harmonization of Crop Groups with Specified Representative Crops for Field Crop Residues Studies:  The TWG plans to continue ongoing work, through the International Crop Grouping Consulting Committee (ICGCC) for harmonizing crops, on the process for developing new/additional crop groups and to revise the existing guidance document as new scientific information becomes available.

Objective 2: Encourage cooperation on joint reviews of new pesticides and uses, and the reevaluation/re-registration review of pesticides to increase efficiency and quality of decision making, which includes:

• Increasing Simultaneous Registration of Biopesticides:  The TWG will seek opportunities with biopesticide manufacturers for their simultaneous submission of registration applications to NAFTA countries to provide opportunities for joint review.
• Minor Use Joint Reviews:  The TWG will continue the focus on pesticide registration for minor uses, and will work with the minor crop grower communities, the U.S. IR-4 program, and the Canadian Pest Management Centre program to: identify pest control gaps; follow the established minor use joint review procedures to enable joint submissions of registration applications in U.S. and Canada; and make simultaneous regulatory decisions in both countries within a 10-month timeframe.
• Coordination of Registration Review and Re-evaluation:  The TWG will continue to identify opportunities for countries to work-share on pesticides; work shares that are currently ongoing include the glyphosate and neonicotinoid pesticides.

Objective 3:  Work cooperatively on priority science and regulatory issues and practices including data requirements, science approaches and policies for data interpretation, and risk assessment and communications of regulatory decisions, which includes:

• Pollinator Protection:  The TWG will share information on policies, risk assessments, initiatives, and actions to improve the countries’ protection of pollinators, and EPA and PMRA will provide training to SAGARPA and SEMARNAT on the process for conducting pollinator risk assessments.
• Alignment of Data Requirements/Science Policies:  The TWG will facilitate a common approach and efficiencies in joint reviews and worksharing among the EPA, PMRA, and Mexico; all countries will continue to consider the alignment of data requirements and science policies. This will include developing and completing guidance for the review and interpretation of specific data and guidance related to risk assessment methodologies (e.g., cumulative exposure) and novel technologies such as RNAi (Ribonucleic acid Interference).
• Integrated Approaches to Testing and Assessment (IATA):  EPA and PMRA will continue to work on initiatives related to Chemical Testing in the 21st Century, e.g., a bilateral effort by EPA and PMRA to develop an OECD Guidance Document that builds upon the existing EPA and PMRA guidelines on waiving/bridging acute toxicity studies, and a continuation of their joint efforts to work with stakeholders on alternative approaches for the acute toxicity studies.

The objectives and specific focus areas are ambitious.  To achieve some of these objectives will require addressing some controversial issues, for example, the confidential treatment of data that underlie these programs (e.g., MRLs, residue studies, biopesticide registrations).

More information on the strategy is available on Health Canada’s website.

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By Lisa M. Campbell and Timothy D. Backstrom

On January 6, 2016, a complaint was filed against the U.S. Environmental Protection Agency (EPA) in the United States District Court for the Northern District of California by a coalition of U.S. beekeepers, farmers, and affiliated non-government organizations (Petitioners).  The Petitioners allege that EPA has allowed “the ongoing sale and use of unregistered pesticide products”  because, they claim, EPA has incorrectly construed seeds coated with neonicotinoid insecticides to be “treated articles” exempt from registration under 40 C.F.R. § 152.25(a).  Petitioners argue that a 2013 guidance document prepared by EPA for enforcement personnel investigating bee incidents improperly expanded the scope of the “treated article” exemption and was in effect an unlawful rule issued without prior notice and comment.

According to Petitioners, seeds coated with neonicotinoid pesticides should not be considered eligible for the “treated article” exemption because the neonicotinoid pesticide in the coating acts systemically to protect the growing plants after the seeds germinate, rather than to protect the seeds themselves.  Based on this analysis, Petitioners argue that each coated seed product is in fact a separate unregistered pesticide that has not been properly evaluated under FIFRA.  Petitioners also argue that pesticide loss from these coated seeds has a variety of collateral environmental effects, including effects on pollinators that EPA has not appropriately considered.

The Petitioners have requested that the District Court provide declaratory relief stating that seeds coated with neonicotinoid insecticides are not eligible for the treated article exemption.  Petitioners also request that the District Court enjoin EPA from:  (1) allowing any new unregistered neonicotinoid-coated seeds of any crops; and (2) allowing any new unregistered seeds of any crops if they are coated with other systemic insecticides that cause pesticidal effects extending beyond the coated seed and plant itself.

Commentary

The potential consequences of a reviewing court finding that EPA has improperly construed or expanded the “treated article” exemption by including seeds coated with neonicotinoid insecticides are of significant concern.  Such a construction could require that EPA separately register each type of coated seed under FIFRA, regardless of whether EPA adequately evaluated the risks associated with seed treatment when each insecticide was first registered for this use.  EPA could seek dismissal of some or all of the Petitioner’s claims on jurisdictional grounds, arguing that the risks and benefits of seed treatment were considered at the time each neonicotinoid insecticide was registered for such use, and that the Petitioners should have sought prior review of those registration decisions in the Court of Appeals within the applicable 60-day window.  EPA may also object to the apparent failure of the Petitioners to exhaust their administrative remedies before challenging the policy embodied in the purported “rule,” and also to the Petitioners’ extensive reliance on extra-record evidence.

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By Lisa M. Campbell and Lisa R. Burchi

The U.S. Environmental Protection Agency (EPA) recently launched a new Pesticide Worker Protection Dashboard (Dashboard).  EPA states this Dashboard is “focused on the universe of agricultural operations regulated and farm workers and pesticide handlers covered by the Worker Protection Standard.”  EPA states that the Dashboard provides charts and graphs presenting certain key enforcement and compliance information related to the Worker Protection Standard (WPS) program under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  Specifically, the Dashboard has screens which show the number of WPS inspections conducted, the number of violations found during inspections, the types of violations found, and the types and numbers of enforcement actions taken.  Since the Dashboard is interactive, users can find answers to questions such as:

• How many facilities in the United States employ workers or handlers covered by the WPS;
• How many inspections are reported; and
• How many violations have been found, and what enforcement actions have been taken by states, tribes and/or EPA.

EPA states that Dashboard information from states and tribes is compiled from data on state and tribal inspections and regulatory actions submitted annually (Form: 5700-33H) to EPA.  This form provides information regarding the number of WPS inspections conducted, the types and numbers of violations found, and the number and types of regulatory actions taken during the year.  EPA inspection data is obtained from EPA’s Integrated Compliance Information System (ICIS) database.  Other information is compiled from data from the U.S. Department of Agriculture’s National Agricultural Statistics Service’s Agricultural Statistics, 2007 and 2012 Census of Agriculture database. 

EPA makes several caveats to the data presented, including:  (1) EPA does not require regional offices to enter all regulatory actions into ICIS, so many “informal” actions are not recorded; (2) the data included in the Dashboard do not reflect all compliance monitoring/inspections or enforcement activities, nor the full extent of enforcement activity within a state or tribe; and (3) tribal inspections and enforcement actions conducted under sovereign tribal authority and regulations are not EPA reviewed or reported, and are not included in the Dashboard.

The Dashboard shows data from 2010 to 2014 to provide context at the national level, or within a state or tribe.  EPA plans to update the information annually when new data are available (e.g., after annual state and tribal reporting forms are submitted to EPA).

The Dashboard provides interesting information and should be monitored, as many groups will likely use it in support of their unique interests.  

More information on the WPS is available in our blog item EPA Publishes Worker Protection Standard Final Rule.

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By Lisa R. Burchi and Lisa M. Campbell

On December 11, 2015, the California Department of Pesticide Regulation (DPR) issued California Notice 2015-13 that will require each person/company with products made from pesticide impregnated material that are sold into or within California under their own company name to register their product(s) as a pesticide.  Examples of pesticide impregnated materials affected by this Notice include apparel (e.g., jackets, shirts, hats, socks, pants, shorts) and non-apparel (e.g., bedding, tents, seat covers, chopping blocks, shower curtains, mouse pads) that make pesticidal claims.

The requirements will be effective November 1, 2016.

DPR currently registers a number of pesticide impregnated textiles bearing pesticidal claims.  DPR notes that while these products have been registered either by the manufacturer of the pesticide impregnated material or by the company impregnating the bolts of fabric or clothing, individual companies selling items made from pesticide impregnated textiles were not required to register the materials.  Instead, such companies were required only to obtain a pesticide broker’s license from DPR.  Under DPR’s new policy, “obtaining a broker’s license will no longer be sufficient for companies selling products under their own company label” (emphasis in original).  DPR states it is making this change to “facilitate tracking the use of these products in California and aid in the understanding of potential impacts on water quality and human health.”

With regard to registration requirements for pesticide impregnated products, DPR states that the number of registrations required will depend on several factors, including whether there are different pesticide active ingredients, different percentages of active ingredients, different types of fabrics, and/or different product uses.  DPR states that if the product contains the same type and percentage of active ingredient, one registration can be used to cover various types of pesticide impregnated apparel or non-apparel product use categories, but such determination will be made on a case-by-case basis.  As an example of products requiring separate registrations, DPR states: “If, for example, a person/company sells apparel impregnated with 0.52% of the active ingredient permethrin and other apparel impregnated with 0.48% of the active ingredient permethrin, two separate apparel registrations will be required because they contain different percentages of active ingredient.  The same holds true for a category of non-apparel products.”

Commentary

This Notice is a significant change in policy, and will impose potentially complicated and costly registration requirements on companies that sell pesticide impregnated material under their own company name but are not necessary familiar with pesticide registration requirements.  The number of new registrations that could be required could be substantial considering the number of factors DPR has specified that could trigger separate registrations.

Importantly, DPR clarifies that this Notice is not intended to change its general policy exempting from registration those products that satisfy the requirements to be a treated article.  DPR notes that for treated articles, the pesticide, and any related claims, must be related to protection of the article/substance itself.  These products are thus distinguishable from pesticide impregnated materials that include pesticidal claims that are not limited to protection of the material. 

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By Lisa M. Campbell, Lisa R. Burchi, and James V. Aidala

In a press release issued on November 22, 2015, the Canadian province of Québec (Quebec) announced its release of Québec Pesticide Strategy 2015-2018.  Although the Strategy itself is available only in French, Québec has provided a summary of the Strategy in English, which is available here.

Québec’s press release states that the Strategy “sets out the major directions and goals that will guide government action to protect public health, pollinators, and the environment in the coming years.”  One of the ways the Strategy seeks to do this is to impose additional restrictions on the use of the "highest-risk pesticides" which the Strategy states includes atrazine, chlorpyrifos, and neonicotinoid insecticides.  To reduce use of high risk pesticides, the Strategy’s “Objectives” to be implemented through legislative and regulatory changes include:

• Requiring agricultural application of such highest-risk pesticides to be "justified by an agronomist in advance of 100% of cases";
• Tripling of the number of pesticides that are banned in urban environments for use on lawns and green spaces;
• Obliging owners of golf courses that use the greatest amount of pesticides to reduce their use of the highest-risk products by 25 percent; and
• Authorizing the "unrestricted sale of all biopesticides by all retailers" and encouraging “the application of the lowest-risk pesticides through economic incentives (levies, permits and compensation fees).”

To lower exposures, the Strategy calls for ensuring adequate qualification levels for employees that apply pesticides and increasing mandatory minimum distance when pesticides are applied near inhabited areas.

With specific regard to neonicotinoid insecticides, Québec seeks to reduce such use with the following “Objectives,” some of which overlap with the Objectives noted above for high risk pesticides:

• Banning the use of all neonicotinoids for lawn and flower bed maintenance;
• Requiring agricultural application of such neonicotinoids to be "justified by an agronomist in advance of 100% of cases"; and
• Encouraging the use of seeds uncoated with neonicotinoids through economic incentives such as levies, permits, and compensation fees.

Québec also intends to obtain additional information about use of treated seeds in Quebec by requiring companies to submit reports on Québec sales of neonicotinoid-treated seeds.

Québec in its Strategy summary also describes the following specific activities it plans to undertake in 2016:

• Amend the Pesticides Management Code to “tighten the conditions under which pesticides may be used”;
• Modernize the Pesticides Act to incorporate coated seeds and strengthen compliance through a system of administrative penalties; and
• Hold pesticide users accountable by “having users of highest-risk pesticides assume a greater share of associated environmental and public health costs.”

Commentary

Québec’s Strategy to impose additional restrictions on the use of the "highest-risk pesticides," including neonicotinoid insecticides, is part of its efforts following a 2011 strategy aimed at reducing the risks related to pesticide use by 25 percent by 2021.  The Canadian province of Ontario also issued final regulations in June 2015 aimed at reducing the area planted with maize and soybean seed treated with neonicotinoid insecticides as discussed in our blog item Canadian Province Finalizes Neonic Reduction Rule, although Quebec’s Strategy goes arguably farther by broadening the scope of the pesticides at issue to include atrazine and chlorpyrifos.  It remains to be seen whether different rules in different provinces will create any confusion or other regulatory issues for companies seeking to comply with these restrictions.

In the U.S., the issue of forbidding “prophylactic” use of pesticides has been raised to date primarily at the local level in a relatively few number municipalities.  Regarding pollinator issues more generally in the U.S., the U.S. Environmental Protection Agency (EPA) is in the process of reviewing comments it received on its “Proposal to Mitigate the Exposure to Bees from Acutely Toxic Pesticide Products” released earlier this year. The next milestone in EPA activity related to neonicotinoid pesticides is the expected release of a registration review risk assessment document for imadicloprid, a widely used neonicotinoid insecticide, before the end of the calendar year.

More information on pesticides and pollinators is available on our blog under topics "pesticides" and "pollinators."

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By Lisa M. Campbell and Lisa R. Burchi

On November 6, 2015, the U.S. Environmental Protection Agency (EPA) announced that it has a new webpage that compiles information about secondary containers and service containers for pesticides.  Secondary and service containers are containers that are used by the pesticide industry as part of the process of applying pesticides, not for further sale or distribution.  EPA states that the website combines and replaces information previously found on the Labeling Questions and Answers page and in the Label Review Manual, and addresses frequently asked questions.  The announcement states “this is not new guidance, but the EPA hopes this new resource will make information on secondary and service containers easier to find and will lead to improved handling of these containers.”  According to EPA, the webpage is designed to help pesticide registrants and applicators:

• Understand EPA’s definition of secondary and service containers;
• Learn about EPA’s recommendations for good management practices when labeling secondary and service containers; and
• Learn how to properly identify the contents of a secondary or service container, including when the pesticide is diluted.

Although registrants are not required to submit labels to secondary containers to EPA for review, EPA provides the following Q&A for when EPA will approve such labels if submitted to EPA for review:

      Q:  If a registrant wishes to submit and have EPA review the secondary container label, what does EPA require?

      A:  As it isn't required that a secondary container label be submitted, there are no requirements per se.  EPA will review them on a case-by-case basis and would be likely to accept them if:

• The EPA-approved master label includes directions for diluting the product.
• The secondary container label is submitted as part of the master label.
• The master label bears a statement that the secondary container must be labeled as presented on the master label (e.g., “When this product is diluted in accordance with the directions on this label, the dilution container must bear the following statements:”)
• The secondary container contains a statement prohibiting further sale or distribution.
• The secondary container may have reduced precautionary language (if supported by dilution-specific acute toxicity data), but not a reduced signal word.

Requirements governing secondary containers are often a source of questions within the regulated community; many may find EPA’s new website a useful source of information on this topic.

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By Lisa M. Campbell and Margaret R. Graham

The U.S. Environmental Protection Agency (EPA) has launched a new pesticides website:  http://www2.epa.gov/pesticides, and a new biopesticides website:  http://www2.epa.gov/pesticides/biopesticides, among others.  EPA states that this gradual move to new versions of its content is part of a larger EPA effort to build a more user-friendly website. 

The updated biopesticides website focuses on providing general information on biopesticides, as well as tools to assist applicants for registration, and is organized into the following areas:

• What are biopesticides?;
• Biopesticide registration information;
• Plant incorporated protectants (PIPs); and
• Where can I find more information on biopesticides?

With this transition, web page addresses will be different which may cause links and bookmarks to break.  EPA states that it is working to fix any broken links.  The majority of the old pesticide pages will redirect to the new web areas, but bookmarks will still need to be updated.  EPA’s new “Page Not Found” notification will help website users find what they are looking for by providing suggested search terms, links to the A-Z index, and other helpful links.  The search feature available on every EPA web page and in the archive (archive.epa.gov) can also be useful in finding content. 

Other updated pesticide related links are:

• Pesticide Registration:  http://www2.epa.gov/pesticide-registration;
• Bed Bugs:  http://www2.epa.gov/bedbugs;
• Occupational Pesticide Safety and Health:  http://www2.epa.gov/pesticide-worker-safety;
• Protecting Bees and Other Pollinators from Pesticides:  http://www2.epa.gov/pollinator-protection;
• Protecting Endangered Species from Pesticides:  http://www2.epa.gov/endangered-species;
• Reporting Unintended Exposure and Harm from Pesticides:  http://www2.epa.gov/pesticide-incidents;
• Pesticide Labels:  http://www2.epa.gov/pesticide-labels;
• Managing Pests in Schools:  http://www2.epa.gov/managing-pests-schools; and
• Pest Control and Pesticide Safety for Consumers:  http://www2.epa.gov/safepestcontrol. 

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