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November 6, 2023

EPA Seeks Public Comment on Whether to Limit the Scope of the Treated Article Exemption

Lynn L. Bergeson Carla N. Hutton

The U.S. Environmental Protection Agency (EPA) published an advanced notice of proposed rulemaking (ANPRM) on October 12, 2023, soliciting public comment and suggestions on specific issues related to seed treated with conventional pesticides (treated seed) and paint treated with conventional or antimicrobial pesticides (treated paint). 88 Fed. Reg. 70625. According to the ANPRM, EPA is considering whether a rule under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to regulate certain use of treated seed and treated paint products or other administrative action is appropriate considering questions raised by stakeholders. EPA notes in its October 12, 2023, press release that treated seed and treated paint are currently exempt from FIFRA registration requirements if they meet the exemption criteria pursuant to the treated article exemption. EPA requests comment and information from all stakeholders on the use and usage of treated seed, including storage, planting, and disposal of the treated seed, and on whether or to what extent treated seed products are being distributed, sold, and used contrary to treating pesticide and treated seed product labeling instructions. Similarly, EPA requests comment from stakeholders on the addition of labeling requirements on the labels of treated paint products and potential language that should be included in those labels. Comments are due December 11, 2023.

According to EPA, states and other stakeholders have questioned the clarity and enforceability of instructions specifically relating to use of the treated seed products (i.e., instructions relating to the storage, planting, and management of the treated seed). EPA notes that in April 2017, the Center for Food Safety (CFS) filed a petition asking the Agency to interpret or amend the treated article exemption so that it does not cover seeds treated with systemic pesticides, and to “aggressively enforce” registration and labeling requirements for such treated seeds. When EPA denied the petition in September 2022, it stated that it intended to issue this ANPRM and to explore the option of a rulemaking to regulate the use of treated seed. EPA states that it is also using the ANPRM to consider requiring labeling instructions on treated paint products. The labeling would address potential risks of concern for professional painters who do not use personal protective equipment (PPE) when applying treated paint.

EPA is seeking comment on:

  • How growers manage treated seed products, including how they store, plant, and dispose of these products;
  • The extent to which treated seed products are used in the United States;
  • Whether or to what extent treated seed products are being distributed, sold, and used contrary to treating pesticide and seed bag tag labeling instructions;
  • Whether label language recently proposed for use of paint products treated with diuron — which may be proposed for other treated paint products — should be made enforceable, and if not, whether other regulatory or administrative options should be considered;
  • Whether those who manufacture treated seed and paint should be subject to some registration and reporting requirements under FIFRA Section 7 or other requirements (e.g., filing of a “notice of arrival” for all imported treated products); and
  • Whether further regulatory or administrative measures are appropriate to ensure the safe use of treated seed and paint.

After reviewing public comments, EPA states that it will consider further actions, which may include regulations to limit the scope of the treated article exemption, enforcing use violations, and taking administrative action to clarify labeling requirements or reduce the use of a treating pesticide.