Proposed CAFO Signals EPA Is Close to Resolving Treated Seeds as Treated Articles Petition

On July 6, 2022, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a notice announcing the availability of a draft Consent Agreement and Final Order (CAFO) that would resolve a claim in U.S. District Court of “unreasonable delay” related to an administrative petition to prohibit applicability of EPA’s “treated articles” exemption to pesticide-coated crop seeds under EPA’s Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulations. The July 6 Federal Register notice initiates a 30-day comment period on the proposed CAFO; however, the real action in this matter isn’t related to the CAFO – which merely, in effect, closes out the substantive aspects of the unreasonable delay case; rather, the real action will begin when EPA issues a formal decision on the original petition, which, according to the proposed CAFO, it commits to do by September 30, 2022.

This matter began in 2017, when the Center for Food Safety (CFS) et al. submitted a petition to EPA requesting that EPA (1) amend its “treated articles” exemption to clarify that it does “not apply to seeds for planting coated with systemic pesticides, such as the neonicotinoids, that are intended to kill pests of the plant instead of pests of the seed itself”; or (2) publish a formal interpretation “stating that EPA interprets the exemption in 40 C.F.R. § 152.25(a) not to apply to seeds for planting coated with systemic pesticides, such as the neonicotinoids, that are intended to kill pests of the plant instead of pests of the seed itself”; and (3) “aggressively” enforce FIFRA regulatory requirements “for each separate crop seed product that is coated with a neonicotinoid or other systemic insecticidal chemical.” In December 2018, EPA published a notice of availability and request for comment on the submitted petition.

EPA’s “treated articles” exemption at 40 C.F.R § 152.25(a) provides that certain articles or substances are not subject to FIFRA regulation if (1) the article or substance is “treated with, or contain[s] a pesticide to protect the article or substance itself”; and (2) “the pesticide is registered for such use.” As examples of articles that would qualify for the exemption, the regulation includes “paint treated with a pesticide to protect the paint coating” and “wood products treated to protect the wood against insect or fungus infestation.” Therefore, if a manufacturer adds a fungicide to paint and the label on the paint can states that the paint coating is mildew resistant, that meets the requirements of the treated articles exemption (of course the fungicide must be registered to prevent mildew in or on paint or applicable surface coatings). If, however, the label claims that the paint “prevents mildew on painted surfaces” – that claim does not comply with the exemption, and the paint must be registered as a pesticide (i.e., because that would constitute a claim to prevent, destroy, repel, or mitigate a pest).

CFS, in its petition, in essence states that many treated seed crop products and treated crop seeds are coated with “systemic insecticides that are intended to kill pests of the plants” and therefore, do not qualify as treated articles. As is pointed out in a number of comments on the petition, many, if not most, seed treatments do, in fact, protect newly planted seeds, and in some cases that protection also extends to seedlings and growing plants. (See, for example, comments submitted by Corteva (EPA-HQ-OPP-2018-0805-0036); CLA, ASTA, and BPIA (EPA-HQ-OPP-2018-0805-0060); the National Potato Council (EPA-HQ-OPP-2018-0805-0091); and the National Cotton Council (EPA-HQ-OPP-0805-0045)). Moreover, as was noted by the U.S. Department of Agriculture (USDA), while treated seeds are not subject to FIFRA regulation, “the active ingredients applied to the seed (if they are insecticides, fungicides, nematicides, growth regulators, etc.) are regulated under FIFRA and are subject to regulation under FIFRA, FFDCA, and FQPA.” (EPA-HQ-OPP-2018-0805-0074).

In any event, the CFS petition appears to be yet another missive in their ongoing campaign against neonicotinoids and other agricultural inputs. Even if one assumes, arguendo, that there is merit to the point that the treated articles exemption is not by its terms expressly applicable to systemic pesticides that protect seedlings and growing plants in addition to protecting the seed, the solution is not to “clarify” the exemption to subject such treated seeds to unnecessary and costly duplicative regulation under FIFRA. Rather, the more sensible approach would be for EPA to amend its 34-year old exemption to extend it to include treated seeds, which have become a mainstay of U.S. agriculture, and which provide millions of dollars in benefits annually to the U.S. agricultural economy.

As noted above, the comment period for the proposed CAFO ends on August 5, 2022. Though this comment period is required by Agency policy, I don’t expect there to be much in the way of substantive comment on a proposed settlement that closes out the CFS unreasonable delay lawsuit on the basis of a promise by EPA to issue a final substantive response to the 2017 CFS petition by September 30, 2022. The real action will commence once EPA renders its decision on the petition, and either denies it or announces an intention to amend the treated articles exemption in some way.

Stay tuned . . .

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