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September 20, 2012

State FIFRA Issues Research and Evaluation Group Meeting: Summary of Proceedings

Bergeson & Campbell, P.C.

On September 17-18, 2012, the Association of American Pesticide Control Officials (AAPCO)/State Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Issues Research and Evaluation Group (SFIREG) Pesticide Operations Management (POM) Working Committee (WC) held its semi-annual full committee meeting in U.S. Environmental Protection Agency (EPA) offices in Crystal City, Virginia. Through a cooperative agreement in 1978, EPA and AAPCO created SFIREG, an AAPCO committee with EPA funding, to promote information exchange and cooperation between the states and EPA in the development of pesticide policies and regulations. More information about SFIREG and its committees is available online.

Issues of potential interest discussed during the meeting included the following, each of which is discussed below:

  • Office of Pesticide Programs Update
  • The Use of the Term “Non-crop” on the Label
  • Risk Mitigation Measures beyond the Applicator
  • PPE Garment Standards
  • EPA Stamping Supplemental Labels
  • Other Topics

Office of Pesticide Programs Update

Jim Roelofs, EPA Office of Pesticide Programs (OPP) Field and External Affairs Division (FEAD), reported on various OPP activities and related information, including the following:

  • OPP is posting on its main web page proposed labels for new active ingredients and new uses and soliciting comment by states and the public;
  • OPP has created a new Mosquito Control website in connection with the resurgence of West Nile Virus transmission;
  • The Federal Trade Commission (FTC) is targeting false advertising claims for bed bug control;
  • OPP published earlier this year Pesticide Registration (PR) Notice 2012-1, which provides guidance on how to reconcile potentially conflicting hazard information between product labels and Material Safety Data Sheets. For more information about PR Notice 2012-1, please refer to our April 19, 2012, memorandum, available online;
  • The National Pesticide Information Center (NPIC) has passed the one million reported incidents mark; and
  • Several revised chapters of the Label Review Manual are in secondary review and should be published soon.

The Use of the Term “Non-crop” on the Label

Roelofs provided an update on the status of EPA follow-up to its October 2011 issue paper concerning “non-crop” as a label use site. In the issue paper, EPA states that “non-crop” and related terms have been used for many years without clear guidance regarding what sites are included in or excluded from these terms and poses three specific questions for public comment:

  • Should EPA allow the use of “non-crop” terms on pesticide labels or should the Agency require more specific use sites?
  • What should EPA and/or other stakeholders do to prevent misinterpretation of “non-crop” terminology?
  • What should be the focus of Agency risk assessments and what data requirements should be applied to products that use the term “non-crop” on the label without any further limiting language?

The comment deadline for the issue paper was December 31, 2011. Roelofs stated that EPA received eight comments on the issue paper, from five states, two registrants, and a trade association, many of which highlighted the ambiguity of the term “non-crop.” Roelofs stated that OPP management will be briefed on the results and then must decide whether additional resources should be spent on the issue.

Risk Mitigation Measures beyond the Applicator

Cary Giguere, Vermont Agency of Agriculture and SFIREG POM WC Chair, and Venus Eagle, EPA OPP Registration Division, raised for discussion options for addressing the lack of enforceability of label risk mitigation measures applicable to third parties (i.e., other than the product registrant and user). Giguere provided the following illustrative examples: pentachlorophenol-treated telephone poles, from which the active ingredient leached into groundwater; composted manure or lawn clippings, where the compost contains residual pesticides; and treated seeds used inconsistently with registered product label restrictions. For treated products such as the telephone poles and seeds, Giguere stated that FIFRA does not provide the enforcement authority to affect the actions of those who install the telephone poles or use the seeds and product stewardship systems typically do not exist to divert pesticide-containing manure or lawn clippings from compost programs. Giguere and Eagle invited brainstorming on how to improve the status quo; subsequent discussion included revising approved label uses and supporting voluntary product stewardship programs, though the tenor of the discussions was not confident about the solutions’ practicality or effectiveness. Based on the discussion, SFIREG POM WC may consider creating a subcommittee to explore the issue further.

PPE Garment Standards

Carol Black (formerly Ramsey), Washington State University, discussed ongoing efforts to improve personal protective equipment (PPE), including registered product label clarity and PPE availability. Black reported on related discussions at the International Symposium for Agricultural Pesticide Operators held in Brazil on August 6-7, 2012. Black stated that the range of factors that EPA considers in selecting PPE applicable for a product is unclear based on publicly available information; Black also stated that there is a lack of PPE product specificity in label language and it is unclear whether referenced PPE is available in the marketplace. Black called for use of a simplified, harmonized PPE classification system by EPA and PPE manufacturers, according to a system developed by a standard-setting organization such as ASTM or ISO. Roelofs stated that Chapter 10 of the EPA Label Review Manual, which addresses PPE, is scheduled for revision and raised for consideration whether SFIREG POM WC wished to form an ad hoc group to discuss PPE label statements.

EPA Stamping Supplemental Labels

As part of an ongoing effort to develop a paper to address issues associated with supplemental labels, Rose Kachadoorian, Oregon Department of Agriculture, raised the following issues for discussion:

  • Whether there is a desire to harmonize practices among Product Managers (PM), whether supplemental labels must be submitted and reviewed with master labels, and whether they should include expiration dates;
  • Whether FIFRA Section 24(c) special/local needs labels should be permitted to include “supplemental” in the label title; and
  • Whether supplemental labels or stamped Section 3 master labels should be permitted to include “supersede” language, such as, “Use directions in supplemental labeling may supersede directions or limitations in this labeling.”

During ensuing discussion, SFIREG POM WC members noted that Steve Bradbury, Director, OPP, stated previously that EPA would develop guidance regarding supplemental label requirements and suggested checking on the status of that effort. Also raised was the possibility that discussions concerning web-distributed labeling may contain pertinent analysis, particularly regarding label expiration dates.

Other Topics

  • OECA Update: David Stangel, EPA Office of Enforcement and Compliance Assurance (OECA), reported on various OECA activities. He stated there is an EPA-wide effort to achieve greater compliance with fewer field inspectors (due to reduced resources) by relying on increased electronic reporting.
  • Soil Fumigation Mitigation Label Amendments Update: John Peckham, Minnesota Department of Agriculture, and John Leahy, EPA OPP Pesticide Re-evaluation Division (PRD), provided a brief update concerning product labels, training certification, and outreach programs.
  • PPDC Bee Label Language Workgroup: Brian Rowe, Michigan Department of Agriculture and Rural Development, provided a brief update on the workgroup’s efforts. Issues on which the workgroup is focusing include: development of appropriate label language to describe the period when a plant/crop is actively producing nectar and bees are foraging; and consideration of extended residual toxicity of pesticide residues on the treated crop.
  • Methomyl Issue Paper: SFIREG POM WC members conferred with Meredith Laws, Chief, EPA OPP Insecticide-Rodenticide Branch, regarding how to submit to EPA the near-final issue paper concerning the widespread off-label use of methomyl-containing products for non-target species. Most recently, POM WC had revised the paper based on direction from the full SFIREG to raise as one option reclassification of methomyl as restricted use but to defer the solution to EPA. Laws stated that she thought it would be better to submit the issue paper as a petition to reclassify as restricted use; she also urged that the submission include copies of all incident reports, investigative data, and other supporting documentation for inclusion in the docket. After discussion, POM WC members agreed to compile the data and confer with SFIREG and AAPCO regarding the petition.
  • Insect Repellency Mark — Section 25(b) Discussion: Rose Kyprianou, EPA OPP FEAD, provided an update on development of a voluntary program for registrants of skin-applied insect repellent products to adopt an EPA-developed graphic to provide standardized information about how long the product repels designated pests (ticks and/or mosquitoes). Kyprianou stated that EPA is working on program guidance, which EPA intends to share with SFIREG POM later this fall. Kyprianou specifically solicited SFIREG POM WC comment on EPA’s consideration of allowing FIFRA Section 25(b) products, which are exempt from registration, to use the graphic if the producers submit applications to do so accompanied by the requisite efficacy data. Comments generally were lukewarm on the idea and focused on whether EPA would review the exempt products seeking this approval to confirm compliance with the FIFRA Section 25(b) requirements, including composition and labeling.
  • Grant Guidance Workgroups Updates: Giguere reported that one workgroup completed its review of the current grant guidance form and proposed revisions to EPA to improve communication between EPA and the states regarding priorities and resources. Mary Francis Lowe, FEAD, discussed the new FOCAS grant guidance intended for use by EPA and the states; the states provided comments concerning expansion of the FOCAS guidance to include several additional topics.
  • Closed Session: Most of the second day of the meeting was a non-public session concerning the formalization of a “reverse SLITS process.” Currently, SLITS, or the State Label Issues Tracking System, is a tool that enables a State Lead Agency to send a product label-specific question directly to the right EPA PM.