REGULATORY MEMORANDUM

Presidents and Pesticides:  What’s Up with the Presidential Memo on Pollinators?

On June 20, 2014, the White House issued a "Presidential Memorandum -- Creating a Federal Strategy to Promote the Health of Honey Bees and Other Pollinators." The strategy is directed to all federal agencies and is designed to "expand Federal efforts and take new steps to reverse pollinator losses and help restore populations to healthy levels." The text of the memo lists a number of goals and comments on pollinator health, and has a focus on setting up a government-wide task force, along with directives about research into the factors affecting pollinator health and suggestions to improve pollinator habitat. The role and possible impacts of pesticides on pollinators are mentioned, but are not prominent. Specifically, the memo mentions that one of the strategies to consider is to include "identification of existing and new methods and best practices to reduce pollinator exposure to pesticides, and new cost-effective ways to control bee pests and diseases." Finally, it directs the new federal task force to report back to President Obama in six months.

Six months from the date of the memo is drawing near (December 20) -- so now, where are we? In summary, remarks by those leading the task force (staff from the U.S. Department of Agriculture (USDA) and the U.S. Environmental Protection Agency (EPA)) report that the response to the memo is now planned to be sent to the White House in draft form around the due date (the Holidays probably allowing for some schedule wiggle room), and that the public will be allowed to comment on the suggestions. That might mean a public release of the draft plan sometime in early Spring 2015, a date that coincidentally could dovetail with the beginning of the use season for commercial honeybee services (the almond crop in California begins to need bees around February depending on weather, temperature, and related considerations). No public release of the strategy is expected for at least 90 days or more. Private conversations and trade press reports indicate some slowness in convening and coordinating such a large and diverse group of agencies, as some agencies appear reluctant to participate in significant ways or otherwise are not sure exactly how or what their contribution to the effort should be (that, of course, is one of the main points of the exercise).

EPA and USDA have hosted two "listening sessions" on the memo -- on November 12 and 17 -- in Washington, D.C. Little detail was presented by the hosts; mostly it was open microphone with no advanced sign-up, so participants gave remarks in person or by phone. EPA and USDA did tell the audience that they would receive written comments on the memo if submitted by November 24. All of this public input will apparently go into the process of formulating the strategy. Many commenters, in fact most of those who spoke, had a "for or against" opinion about pesticide use and any possible impact on pollinators. Very few spoke of habitat issues or the research issues, even though those concerns dominate the text of the President's memo.

So what is happening in the pollinator space concerning pesticides? Most activity continues to be driven by the directives and announcements of EPA in July and August 2013. See Bergeson & Campbell, P.C.'s memorandum "Presidential Memorandum Creates Federal Strategy to Promote Health of Honey Bees and Other Pollinators" and James V. Aidala's article "Neonicotinoids: EPA's New Get-Tough Measures."

EPA is still working its way through the label submissions made in response to those demands EPA made in 2013. State lead agencies have also asked about apparent inconsistencies between the flexibility that is perhaps available on the "bee box" labeling EPA required and other mandates of the label that may not allow much flexibility (for example, to deal with an emergency or sudden pest pressure needing application of certain affected insecticides). Any future plans for how to impose improved labeling to enhance pollinator protections will have to work through these potentially conflicting goals.

Most troubling to registrants, however, is that the increased emphasis on pollinator protections, or more precisely, the uncertainty of what EPA plans to impose as new label requirements, has slowed down, if not fundamentally stopped, the processing of label amendments for broad numbers of, if not all, insecticides. The delay or functional freeze on approvals of amendments to existing products might be due to new data requirements, restrictive language that the applicant may find unacceptable, or the general need for extensions of the expected decision-making deadline. Regardless, many registrants report frustration with the inherent unpredictability of the process, and with both the "moving target" nature of the situation and with the lumping together of insecticides as a class when the controversy about insecticide use has mostly centered on the use and possible impacts of neonicotinoid products.

Whether the release of any response to the President's memo, or other pronouncements or decisions by EPA, will address the delay or functional freeze issue is not clear. At the same time, as the new crop growing season begins in 2015, along with the parallel flowering (pun intended) of a Republican majority on both sides of Capitol Hill, the issue of appropriate controls and balance between the need for insecticides and for the protection of pollinators will likely continue to be a hot topic for the foreseeable future.

 
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