NASDA Policy Statements

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9. Pesticide Regulation
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9.1.  Introduction

Pesticides are an important component of agriculture/horticultural production systems. Pesticides are utilized in integrated pest management programs and result in the production of abundant and safe food, fiber and ornamental crops which sustain the quality of life we enjoy.

Pesticide laws, regulations and policies ensure that pesticides are used correctly and that adequate protection is provided to applicators, workers, consumers, and the environment. This body of regulations is constantly changing to enhance protection of human health and the environment, and reflect new technology and scientific discovery as well as to improve safety.

9.2.  Food Safety

Efforts to maintain and enhance the safety of the nation’s food supply are critical. Regulations must assure that pesticides are properly labeled, and the producers apply those pesticides in accordance with the label. The continued and improved monitoring of pesticide residues in food crops, both domestic and imports, to reflect actual rather than estimated residues is critical. Risk calculations, wherever possible, should be based on real world data and be based on end-use or processed product sample data in order to accurately reflect dietary pesticide residue consumption. Periodic reevaluation of consumption data to reflect current tastes and practices, especially for children, should be a priority. Moreover, it is essential that programs like the Pesticide Data Program (PDP) continue to provide accurate and current use and residue data for risk calculations. Adequate funding for such activities is essential.

9.3.  Sound Science & Harmonization

Pesticide regulation must be based on sound science. The international harmonization of data requirements, the presentation of data and its interpretation, and risk assessment methodologies is a positive goal. The mutual recognition among states, regions, and nations of each other’s standards of testing is important when the standards are equivalent. In working toward international harmonization, the increasing costs of conducting scientific studies that support pesticide registrations must be considered so that unnecessary and duplicative studies are reduced. Harmonization efforts should not jeopardize U.S. agricultural exports, nor should they permit agricultural imports from other countries that cannot meet U.S. health and safety standards. Harmonization must occur at the highest levels of government to maintain the safety, quality, and integrity of our food supply.

U.S./Canada Harmonization

The EPA should increase resources and efforts of the U.S./Canada Technical Working Group (TWG) to harmonize pesticide regulations in the two countries. Current efforts of the TWG have focused on new pesticide chemistry. Current imports of Canadian commodities should be disallowed unless adequate progress is made by the TWG to obtain registrations in the U.S. of Canadian-registered pesticides. The EPA must also make a greater effort to accept registration data currently accepted by Canadian officials in support of Canadian registrations. EPA should work with the Canadian Pest Management Regulatory Agency (PMRA) to develop mutually-acceptable joint EPA/PMRA labeling procedures for identical or substantially similar pesticides registered in both countries. More effort needs to be focused on establishing harmonized tolerances for pesticides used in either country on exported commodities. Pesticides that are registered in one country and are found moving illegally across international borders for use should be registered in both countries.

9.4.  State-Federal Partnerships & Funding

States play an important role in the regulation of pesticides. They work cooperatively with EPA to regulate pesticide licensing and certification programs, and protect water resources, endangered species and agricultural workers. States conduct inspections in producer establishments, on farms, at pesticide dealerships, and in the marketplace; respond to complaints from a variety of individuals related to alleged pesticide misuses and work closely with the Cooperative Extension Service in educating the public about the use of pesticides; assist in the disposal of canceled and suspended and unusable pesticides; facilitate "Clean Sweep" pesticide disposal and container recycling programs; and sample pesticides as well as commodities. EPA should expedite approval of state equivalency applications under the federal container/containment regulations, supporting the implementation with sufficient inspector training and additional funding to support implementation.

Where states are given new mandates under the FQPA, and other federal programs, efforts to maintain and increase funding are essential for implementation of these programs. Increased regulations delegated to states without adequate companion funding are unacceptable and unproductive. Steps should be taken by EPA to ease reporting burdens and reduce paperwork, wherever possible. Ongoing efforts made by EPA to be as inclusive as possible with their state partners in developing regulations and making decisions should be continued. EPA should set certain basic minimum standards in cooperation with their state partners and avoid costly and labor intensive reviews of state-delegated management plans, thereby allowing sufficient flexibility in pesticide program activities to accommodate the great variety of resources and needs which exist in individual states. To ensure the safety of the American food supply, however, when implementing Performance Partnership Grants, the agency must ensure that all pesticide enforcement and program monies continue to be provided to the state lead pesticide agency responsible for pesticide enforcement. These resources must not be used for other environmental purposes.

EPA should move quickly to implement a program recognizing electronic labels for a variety of uses to include label amendments to products in the channels of trade, allow for filtering lengthy labels for crop specific use directions, enhance label accessibility, and provide version controls.

EPA should take action to assure that pesticide registration programs comply with the Office of Pesticide Programs’ (OPP) Label Review Manual by providing sufficient training to EPA staff, addressing referrals from states on problematic labels and label language and implement recommendations made by the Label Accountability Workgroup.

EPA has not yet managed to review and approve the majority of state generic pesticide and surface water management plans and will soon be faced with reviews of numerous pesticide-specific management plans. EPA should develop a common effects assessments methodology to support identification of endpoints for FIFRA risk assessments as well as develop aquatic life criteria under the Clean Water Act.

NASDA supports a uniform federal pesticide container recycling system that relies on partnerships between state departments of agriculture, local communities, extension, industry associations, grower groups and other interested parties. These programs should be supported by pesticide registrants, remain voluntary for farmers and retailers and should continue to recognize triple rinsed pesticide containers as non hazardous waste that can be legally landfilled.

9.5.  Implementation of FQPA

Risk Determination & Methodology

The FQPA institutes changes in the types of information EPA is required to evaluate in their risk assessment process for establishing tolerances for pesticide residues in food and feed. It also gives EPA a mandate to account for the special needs and sensitivities of infants and children when assessing dietary risks, to look at aggregate exposure, and to evaluate compounds with the same mechanism of toxicity simultaneously. Benefit considerations have been dropped except in cases where the compound is a carcinogen and the tolerance is already in existence and certain conditions regarding use and risk are met.

Throughout the law the term "available information" is applied to data to be used by EPA in their decision making process. How EPA defines "available information," in terms of valid animal models and scientific methods, will be crucial for regulations required under FQPA. In situations where the data do not yet exist (e.g., consumption studies for infants and children), funding for and design and conduct of studies are necessary to make the information "available."

A key provision of FQPA was that decisions be made on the basis of reliable information and data. In the absence of "available information," EPA may use default assumptions. Realistic risk estimates based on sound science are essential to avoid misguided decisions. Otherwise, valuable pest control options could unnecessarily be canceled. In addition, EPA must establish some orderly process to allow for pesticides no longer supported by tolerances, to clear channels of trade and use. Failure to do so will result in costly disposal problems for states and possibly major disruption in production agriculture should tolerances expire during the use season.

NASDA recommends that EPA publish a "transition report" regarding how they will identify endocrine disruptors and their role in human health. This report could be used to identify data gaps and deficiencies, allow for the development of newly needed data, and let the agricultural community know how tolerance decisions will affect and impact production. EPA should communicate with NASDA regarding detailed guidelines and regulations for implementation of the endocrine disruptor portion of the FQPA.

Data Needs

EPA should develop a comprehensive database to address cancelled, amended, or additional uses for pesticide products with tolerance establishment or cancellation information. With FQPA and the re-registration process, changes in product availability is nearly impossible to track. EPA is the most appropriate agency to provide this information in a centralized database for public access.

Coordination of current pesticide recordkeeping requirements such as those required under FIFRA, state laws, the 1990 Farm Bill, and the Worker Protection Standard (WPS) would result in a more efficient comprehensive recordkeeping system.

NASDA strongly supports efforts to build program capacity within the National Agricultural Statistics Service (NASS) and its cooperative partners to expand pesticide use data collection through statistically valid survey procedures for all pesticide uses supported through the pesticide registration and FQPA process. NASDA encourages continued dialogue with USDA, EPA, the pesticide industry and other interested parties to ensure the use of the best available information collected in the most efficient manner.

Minor Use

Continued efforts on the part of EPA to ease the burden of the registration process for pesticides on minor crops is necessary. Minor crops are important to American agriculture and consumers. "Minor crops" are anything but minor and in fact represent over $31 billion annually to U.S. agriculture or 42 percent of total U.S. crop sales.

Twenty-six states rely on minor crops for at least 50 percent of their total crop sales. In Florida, minor crops account for 98 percent of crop production. Congress, recognizing the need to ease the burden on minor crops, enacted specific legislation under the FQPA designed to make it easier and less costly to register pesticides on minor crops. Among these were the establishment of a revolving grant fund of $10 million to support the development of data necessary to register minor use pesticides as well as the establishment of minor use programs within EPA and USDA to foster coordination on minor use regulations and policy. Congress should appropriate these funds. EPA should eliminate the annual fee for 24c’s charged to the registrant to further support pesticide availability for minor crops.

USDA should also immediately move toward the organization of a minor use office to complement but not duplicate the activities of IR-4 and to administer the awarding of minor use data development grants. In tandem, EPA should also organize its minor use office with the objective of assisting in the coordination of minor use pesticide registrations. A survey of what grower needs are, with respect to the registration process, should be conducted as a part of the formation of this office. This information is supposed to have been implemented under USDA as crop specific strategic plans, but most crops remain undocumented.

The IR-4 program develops data in support of minor use pesticides. This program has proven to be effective and important to agriculture. The goals and objectives of the IR-4 program, to generate data to support minor uses, are critical to preserving valuable pest control options. Congress should appropriate adequate funding for this program.

Consumer Communication

FQPA amended Section 408(c) of the FFDCA to require EPA to move forward with a consumer right-to-know program. FQPA specifies a discussion of the risks and benefits of pesticides and recommendations to consumers for reducing dietary exposure to pesticides while maintaining a healthy diet. Additionally, FQPA requires EPA to produce a listing of the pesticides for which there are benefit-based tolerances and the foods which may have residues of these pesticides.

The concept of an informed public is generally a positive goal, however information about pesticide use in food production should not unnecessarily frighten consumers. Misleading or misunderstood information could create confusion about the safety of the food supply, especially fruits and vegetables, which it is widely recognized that Americans should consume in greater quantities. The medical community has long promoted a diet high in fiber which research has shown to have increased health benefits, among these a reduction in certain forms of cancer. USDA, along with the medical community and other health advocacy organizations, continue to actively encourage an increased consumption of fruits and vegetables as part of a healthy diet.

EPA, with input from the Pesticide Program Dialogue Committee as well as other interested and impacted organizations, should develop a brochure written for the general public of a size which can easily fit into a shirt pocket or purse. The brochure should include a brief discussion on the risks and benefits of pesticides with some practical information for consumers on how they can reduce their dietary risks from pesticides. It is suggested that this brochure be initially field tested with groups of average consumers and evaluated in a limited area before national distribution. State regulatory agencies and land grant universities should be included in the development and any preliminary release for their review and evaluation of the material. In addition, plans for periodic updates of this information should be considered. Listing of benefit-based tolerances and associated foods should be included on the EPA web site and/or made available on request rather than in the consumer brochure. The consumer brochure would contain a reference statement directing consumers to the EPA web site and to State Lead Agencies for more information.

9.6.  Section 18's

Section 18 of FIFRA permits the application, with appropriate safeguards, of unregistered pesticides for certain emergency conditions, if authorized by EPA. Substantial crop losses nationwide are prevented every year by treatments authorized under the emergency exemption provisions. This provision of FIFRA is necessary and valuable to American agriculture and we support its continuation.

An example of recent section 18s with great value to agriculture are the exemptions which allowed the use of several fungicides to control Soybean rust on soybeans and possibly other related crops. The failure to control strains of such diseases as Soybean rust could result in the destruction of entire crops within the United States. Such emergencies demand a quick response.

There is a need for the development of criteria for wildlife monitoring in connection with section 18 exemptions to be included in guidance documents to the states, so that states can better anticipate when wildlife monitoring may be a requirement and the potential costs of monitoring which might accompany a section 18 approval. EPA needs to clearly communicate their data needs to address endangered species protection for Section 18s.

Allowing emergency exemptions for the purpose of resistance management or based on reduced risk is desirable. Resistance management is increasingly important to preserve existing pest control options. Many integrated pest management (IPM) programs require multiple strategies for effective pest control which may include the use of several pesticides at different stages of plant development and pest life cycles. The loss of registered pesticides jeopardizes successful IPM programs by limiting options. Emergency exemptions based on reduced risks would allow states to provide an alternative, to a registered use, when unusual conditions exist under which the registered use would pose unacceptable risks on a temporary basis. It is anticipated that reduced risk emergency exemptions would be rare and would result from conditions difficult, if not impossible, to anticipate in the usual registration review procedures and likely be temporary and localized in nature.

A common sense approach in determining whether to grant section 18 emergency exemptions and tolerances is desirable. In the absence of available information, it is recommended that the EPA not rush to establish default assumptions not required by FQPA. EPA should not deny valid section 18 applications for use of pesticides that have resulted in no detectable residues and pose no additional risk.

9.7.  Reduced Risk Pesticides

The substitution of reduced risk pesticides for conventional pesticide materials should be encouraged whenever the reduced risk pesticide offers a practical alternative in terms of cost and effectiveness. Emphasis should be placed on finding reduced risk solutions to pest control problems currently addressed with materials having a high potential to cause adverse effects to human health and the environment.

EPA should review their decision of allowing the exemption from registration under FIFRA 25(b). Allowing products to claim to control pests in any site without at least a simplified review of risk factors and appropriate label language has shifted the burden of enforcement to the SLAs. In addition, worker risk and other adverse effects of these products are not identified or mitigated.

Due to the large investment of resources required to develop new reduced risk pesticides, measures should be taken to sustain their efficacy over time. It will require a cooperative effort among government, industry, farmers, and academic institutions in order to establish viable resistance management programs.

9.8.  Certification and Training

Certification and training of private and commercial pesticide applicators is a function of both state pesticide lead agencies and the Cooperative Extension Service. This program is essential to the safe use of pesticides. While there have been significant changes in the requirements of both commercial and private applicator certification and training programs since their inception, there has been little corresponding increase in funding to the Cooperative Extension Service for this purpose.

EPA continues to add rules that impact the amount and type of information which must be conveyed through pesticide applicator training such as the WPS, the use of IPM, endangered species, water protection, container/containment, recycling, product specific training, etc. . EPA should move forward with recommendations of the Certification and Training Advisory Group.

NASDA emphasizes that FIFRA grant funding for certification and training programs should be consistent in federal/state match funding requirements with the 85/15 requirement of other programs such as enforcement and WPS.

Periodic reviews of state certification programs by EPA and state pesticide lead agencies with the intention of strengthening certification and training programs, such as adding new information necessary for the safe application of pesticides, is desirable. However, any major required changes in this program should be carefully considered as to cost and feasibility. Other than certain minimum requirements established by EPA in cooperation with their state partners, any additional requirements should be set by state pesticide lead agencies as they are likely to bear the increased costs. Adequate funding to implement any required changes to private applicator certification programs should accompany such requirements.

9.9.  Worker Protection

EPA finalized Worker Protection Standards (WPS) for Agricultural Pesticides in August 1992. The regulations govern the protection of employees on farms, forests, nurseries, and greenhouses from occupational exposure to agricultural pesticides. The standards cover both workers in areas treated with pesticides, and employees who handle (mix, load, apply, etc.) pesticides for use in these areas. As the national organization of the lead state pesticide regulatory agencies, NASDA supports the underlying goals of the WPS — the protection of farmworkers — and believes that the continuation of a strong education and information campaign is needed.

EPA made several changes to the WPS. The agency should continue to review the regulations to determine if additional changes are necessary to ensure proper implementation of the program. Such changes should increase worker protection while streamlining the regulations placed on agricultural producers and employers."

Any contemplated changes in risk assessment which might limit uses due to concerns over pesticide exposure to workers and handlers should be given an opportunity for debate in an open forum. Worker exposure risk assessments should not be added to the "risk cup" but should be handled via separate risk reduction measures already in place under FIFRA prior to FQPA. Extensive education and training programs are already underway throughout the United States to address worker exposure from pesticides.

9.10.  Structural Pesticide Control Issues

Formosan termites (Coptotermes formosanus Shiraki) are an aggressive non-native termite species with diets consisting of wood fibers, plants and crops, which can penetrate plastic, plaster and asphalt in order to fulfill their harmful dietary needs. It is believed that Formosan termites were first brought into the United States on military ships carrying supplies from the Pacific Ocean following World War II.

The Formosan termite is potentially the most damaging structural and agricultural insect which has caused tremendous damage to many homes, public and private buildings, trees, significant historic properties and too much infrastructure. The Formosan termite differs from the native subterranean termite in that its colonies are many times the size of the native termite colonies, it flies during the day, is attracted to and not repelled by light, does not have to return to the ground for its life-sustaining moisture and infests live trees, dead wood, and building materials. A single Formosan termite colony can produce 2000 eggs per day and may contain over 10 million termites. It is estimated that Formosan termites cost consumers more than $1 billion dollars a year including the cost of repairs and control measures.

Formosan termites repeatedly test chemical barriers and find ways to penetrate soil in the states in which they are found which includes Alabama, California, Florida, Georgia, Hawaii, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee and Texas. Supported by the belief that the United States government shares in responsibility for the importation of Formosan termites, NASDA encourages the USDA to work with the states to develop a program for the suppression of the Formosan termites. NASDA also urges USDA and other federal agencies to fund this program of Formosan termite suppression and control

9.11.  Methyl Bromide

The harmonization of the Clean Air Act with the Montreal Protocol requires that both the production and use of methyl bromide for non-critical or non-exempted uses be gradually phased out in the United States by 2005. The current regimen will require a 50 percent reduction in non-critical/non-exempt methyl bromide use by the end of calendar year 2000 with a complete phase-out by 2005. Developing countries such as Mexico and China will have until 2015 to complete phase-out. The Montreal Protocol also provides for a process for exemption from phase-out for agricultural quarantine and pre-shipment uses of methyl bromide.

Methyl bromide provides highly effective control for a broad spectrum of economically important pests on a wide range of food and non-food commodities. It provides rapid and complete control of pests, mostly within twenty-four hours of exposure, for fumigation of large and small quantities of material. When applied properly, it does not leave residues of any toxicological significance. The compound is widely used in agriculture as a soil fumigant, for post-harvest applications (including quarantine and stored agricultural commodities and durable products, such as, cotton timber and artifacts) and structural fumigation. It is active against a diverse variety of organisms at low concentration, including rodents, insects, mites, nematodes, fungi, weeds, bacteria, and viruses. Methyl bromide is often the preplant treatment of choice given its easy application and wide variety of uses.

The greatest use of methyl bromide is for soil fumigation during intensive production of high value crops, such as strawberries, tomatoes, cucumbers, peppers, melons, and eggplant. Methyl bromide is particularly important in quarantine treatments. It is effective against a large variety of indigenous and non-indigenous pests. Methyl bromide can easily and economically be applied to both small and large shipments; U.S. regulations require that a wide array of imported food and non-food commodities be fumigated with methyl bromide as a condition of entry. A number of commodities exported by the United States must be fumigated with methyl bromide in order to comply with the quarantine requirements of recipient countries. In addition, methyl bromide plays a critical role in the United States as the only practical emergency treatment to move commodities out of areas quarantined for outbreaks of exotic pest insects, such as, the Mediterranean fruit f fly.

Structural fumigation of food production and storage facilities, non-food facilities, transport vehicles are very reliant on methyl bromide for control of a large number of pests. It is used either on an entire structure or a significant portion of a structure. Fumigation is utilized whenever the infestation is so widespread that localized treatments may result in re-infestation or when the infestation is within the walls or other inaccessible areas

Failure to find an alternative to methyl bromide will cost billions of dollars in lost exports and increased cost of production in the United States. We must ensure that American farmers can continue to raise and market their crops. Adequate funding is needed for a research program to find and develop alternatives for methyl bromide. In addition, Congress must ensure that the EPA gives expedited treatment to a methyl bromide alternative during the registration process.

NASDA urges the U.S. EPA to work closely with USDA and the U.S. Congress to allow the continued use of critical use exemptions for agriculture. Many economically important uses of methyl bromide, such as quarantine and pre-shipment uses of methyl bromide do not have viable alternatives for use. It is in the best interest of all states and segments of the agricultural industry to find safe and environmentally sound alternatives to methyl bromide, but until those alternatives are available for use, critical use exemptions must be continued. Domestic policy issues and international consensus on environmental protection must be resolved so as not to put U.S. agriculture and trade at a competitive disadvantage.

As alternative fumigants are registered and existing fumigants go through reregistration, label amendments associated with calculating buffer zones, monitoring access to buffer zones by unprotected persons and other use restrictions though important must be functional and enforceable. Proposals to require written management plans may not be the best alternative for documenting compliance. Also, required "certification" programs administered by the registrant and approved by EPA will cause a variety of enforcement problems for states and therefore should undergo state review for accountability and enforceability.

9.12.  FIFRA and Other Environmental Statutes

(Revised September 2010)

By way of background, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) established a unique, effective, and comprehensive regulatory web to provide pesticide-related environmental and public health protection in which state lead agencies have primacy in the enforcement of pesticide matters. FIFRA created requirements for pesticide registration, labeling, and use that are the end result of an extensive pre-market approval process. This registration process requires products to meet strict safety guidelines and includes rigorous examination of environmental fate data and health exposure assessments.

NASDA supports the original intent of Congress that FIFRA be the primary federal statute under which pesticide registration and use is regulated.

Pesticide registration and use should not be regulated under other federal statutes (e.g. the Clean Water Act, the Endangered Species Act, the Toxic Substances Control Act, the Resource Conservation and Recovery Act, etc.). Pesticide uses that have been reviewed and registered under FIFRA should not be subject to additional requirements (including permit requirements) under other federal statutes.

In situations where requirements of other environmental statutes overlap with FIFRA, those requirements should be incorporated into the FIFRA registration process in a manner that is science-based, transparent, and allows stakeholders the opportunity to comment upon and fully analyze the ramifications of the proposed action. EPA must recognize that state lead agencies are not only important stakeholders, but are also co-regulators under FIFRA and must, therefore, be intimately involved in this process.   (See also: Sections 7.5 and 7.10)

9.13.  Pesticide Spray Drift

(Added September 2011)

Off-target pesticide spray drift is a complex and difficult to solve regulatory issue that has vexed federal and state regulators, applicators, and registrants for years.   Minimizing off-target spray drift is an important policy goal. Currently a number of pesticide products feature label language for drift that is often unclear, difficult to enforce, or unrealistic. In some cases labels even feature “do not drift” instructions. Federal policy related to spray drift should:

  • Provide flexibility for state regulators to enforce state laws and regulations
  • Encourage state and federal regulators, registrants, and applicators to collaborate on label improvements to ensure pesticide labels include clear, consistent and enforceable instructions and expectations
  • Preserve the integrity of FIFRA’s risk-based “no unreasonable adverse effects” standard
  • Encourage adoption of best management practices, effective training and certification, the development of new technologies, and other drift reduction strategies
  • Recognize that a small amount of de minimis drift often occurs and that a “zero drift” standard is impractical, if not impossible
  • Recognize that there may be situations when off-target drift occurs, but not a violation of federal law. In situations where there is economic harm to others (for example, drift onto organic crops where no tolerance violation has occurred and the crop can still enter the chain of commerce), tort law, negligence and other common law concepts can often be used to appropriately address the issue.  

     

Document Date: February 3, 2017
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