EPA to Consider Revising FIFRA Exemption for Pesticide-Treated Seeds and Paint

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On October 12, 2023, EPA published an advance notice of proposed rulemaking on seeds (“treated seeds”) and paint (“treated paint”) treated with a pesticide that is registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (“treating pesticide”). Treated seeds and treated paints are currently exempted from FIFRA under the “treated articles and substances” exemption at 40 CFR 152.25(a) as long as their use is consistent with the treating pesticide’s label instructions.

EPA’s longstanding position has been that subjecting treated articles to FIFRA requirements would be unnecessary since the treating pesticide would have already been assessed during the pesticide registration process. This position was challenged in 2017 by the Center for Food Safety, which filed a petition requesting that EPA remove the exemption for treated seeds and aggressively enforce FIFRA’s pesticide labeling and registration requirements for seeds treated with systemic insecticide chemicals. EPA denied the petition in 2022 but acknowledged that the use of a treated seed contrary to the treating pesticide’s labeling instructions is generally not enforceable under FIFRA. As a result, EPA noted its intention to issue the current advance notice of proposed rulemaking to collect more information on treated seeds. EPA also included treated paints in the notice because of concerns that painters may be exposed to treated paint without adequate PPE.

The information specifically requested by the notice falls into five main categories:

  1. Effectiveness of instructions on treated seed product labeling to mitigate potential risks. EPA seeks comment on the Agency’s labeling instructions for treated seeds, particularly with regard to whether these instructions are clear, generally achievable, and adequate.
  2. Use, usage, and tracking of treated seed products. EPA seeks comment on the use, usage rates, and volume of imports of treated seeds. EPA also seeks comment on whether tracking treated seed distribution, sale, and/or use would provide any meaningful improvements in the assessments of treating pesticides and whether the treated article exemption should be amended so that manufacturers of treated seeds would be subject to FIFRA section 7 registration and reporting requirements.
  3. Management of spilled or excess treated seed. EPA included additional labeling instructions for the management of spilled and excess treated seed in the registration review proposed interim decisions and interim decisions of several chemicals. EPA seeks comment on whether these instructions are sufficient. EPA also seeks comment on what farmers, distributors, and companies currently do with excess treated seed.
  4. Treated paint. Pesticide labeling requirements for treated paint do not currently exist. EPA seeks comment on whether it should add pesticide labeling requirements and what those requirements should include. EPA also seeks comment on whether it should add specific use instructions or enforceable use requirements for professional painters and whether the treated article exemption should be amended so that manufacturers of treated paints would be subject to FIFRA section 7 registration and reporting requirements.
  5. Administrative action, amendment of the treated article exemption, and/or FIFRA section 3(a) rule. EPA seeks comment on whether action is necessary to prevent unreasonable adverse effects on human health and the environment, considering the concerns raised regarding the enforceability of labeling instructions on treated seeds and paint and whether there are any such examples of the use of treated seed contrary to labeling instructions. If so, EPA requests comments on what the proper action should be and how such an action might impact states.

EPA also requests comments on whether exposure to treated seeds and paint may be an environmental justice concern and comments regarding potential child health concerns. Comments on the notice will be accepted through December 11, 2023.