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EPA Seeks Public Comment on Pesticide Applications Adding Hemp as a New Use Site

On August 23, 2019, the U.S. Environmental Protection Agency (EPA) issued a Federal Register notice announcing the receipt of 10 applications to amend currently registered pesticide products to add hemp as a new use site.  The 10 application amendments are the result of the 2018 Farm Bill, signed in to law on December 20, 2018, that removed hemp from the Controlled Substances Act and legalized commercial use and production of hemp that contains less than 0.3% tetrahydrocannabinol (THC).

EPA states in the notice that Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 3(c)(4) does not require EPA to provide notice and opportunity to comment concerning these 10 applications because hemp falls within the terrestrial outdoor and residential outdoor use pattern previously approved for the pesticidal active ingredients in question, and approval of the applications would therefore not involve "a changed use pattern."  Instead, EPA states that it has decided to provide an opportunity to comment in this instance "because of the potential significant  interest from the public" and to be "completely transparent about these applications." EPA also states that it does not intend to provide notice or opportunity to comment for similar applications to add hemp that are likely to be submitted in the future.

EPA also states that the products with requested label amendments contain active ingredients for which EPA "has previously determined the residues will be safe under any reasonably foreseeable circumstances." Each active ingredient has an established tolerance exemption for residues on all raw agricultural or food commodities.

The 10 products for which EPA has received an application to add hemp are:

  1. Debug Turbo, EPA Registration No. 70310-5, active ingredients: azadirachtin and neem oil;

  2. Debug Optimo, EPA Registration No. 70310-7, active ingredients: azadirachtin and neem oil;

  3. Debug Trés, EPA Registration No. 70310-8, active ingredients: azadirachtin and neem oil;

  4. Debug-ON, EPA Registration No. 70310-11, active ingredient: neem oil;

  5. REGALIA Bioprotectant Concentrate, EPA Registration No. 84059-3, active ingredient: extract of Reynoutria sachalinensis;

  6. MBI-110 EP, EPA Registration No. 84059-28, active ingredient: Bacillus amyloliquefaciens strain F727;

  7. GH CMT, EPA Registration No. 91865-1, active ingredients: soybean oil, garlic, oil, and capsicum oleoresin extract;

  8. GH MPMT, EPA Registration No. 91865-2, active ingredient: potassium salts of fatty acids;

  9. GH DNMT, EPA Registration No. 91865-3, active ingredient: Bacillus amyloliquefaciens strain D747; and

  10. GH NAMT, EPA Registration No. 91865-4, active ingredient: azadirachtin.

Once public comments are received, EPA anticipates making its decision on adding hemp as a new use site on the specific products before the end of 2019, so that these products may be available for the 2020 growing season.

Commentary

Although the Federal government has legalized commercial production and use of hemp (as opposed to marijuana that contains higher levels of THC), not every State has changed its laws to conform to the new classification.  EPA took the unusual step of announcing receipt of the new amendment applications at Hemp Production Field Day at the University of Kentucky.  Senator Rand Paul of Kentucky has long been a proponent of commercial hemp production, and about 1,000 growers in Kentucky now have licenses to grow hemp for commercial use.

As hemp production increases, there will also be increased demand for pesticides to combat weeds, insects, and plant diseases that pose a potential threat to this crop.  Although hemp fiber and oil have many potential industrial uses, hemp also has potential medicinal uses because extracts containing cannabidiol (CBD) are now being widely marketed for their purported health benefits.  This use of hemp means that EPA will have to consider whether new tolerances may be required for some active ingredients before they can applied to hemp.  As EPA has noted, the active ingredients in the 10 products for which EPA announced that applications are pending to add labeling for hemp already have tolerance exemptions, and therefore do not present this issue.

Comments are due on or before September 23, 2019.  The public can submit comments at www.regulations.gov in Docket Number EPA-HQ-OPP-2019-0369.

©2019 Bergeson & Campbell, P.C.

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About this Author

Lisa Campbell, Bergeson PC, Federal Insecticide Fungicide Rodenticide Act attorney, TSCA lawyer, environmental statutes legal counsel, regulation compliance law
Partner

Lisa Campbell founded Bergeson & Campbell, P.C. (B&C®) with Lynn Bergeson. Today her practice focuses on many aspects of pesticide and chemical regulation. She counsels clients on a wide range of issues pertaining to exposure and risk assessment, risk communication, and related legal and regulatory aspects of pesticide programs under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). She also counsels B&C clients on various chemical-specific programs under the Toxic Substances Control Act (TSCA) as well as chemicals regulation and...

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Timothy Backstrom, Bergeson Campbell PC, Endangered Species Act attorney, EPA litigation, FIFRA lawyer, Clean Air regulation legal counsel, FOIA law
Of Counsel

Timothy Backstrom spent some 25 years in the U.S. Environmental Protection Agency’s (EPA) Office of General Counsel (OGC) working on pesticide, toxic substances, and air quality issues before coming to Bergeson & Campbell, P.C. (B&C®). He offers an extraordinary understanding of how EPA operates, as well as established relationships with many key players at EPA. He brings substantial litigation experience in both federal courts and administrative adjudications. He served for many years as the OGC’s designated administrative law expert and, among many accomplishments, he headed the trial team when EPA intervened in a hearing concerning a request for an exemption from the Endangered Species Act (ESA) for the northern spotted owl.

Besides insider knowledge of EPA, Mr. Backstrom delivers an unusual depth of expertise on pesticide registration issues and air toxics regulation, and a unique understanding of the EPA program requiring registration and testing of fuels and fuel additives. Having a technical background has allowed Mr. Backstrom to develop significant scientific expertise in toxicology and risk assessment. In the context of pesticide adjudications, he has presented and cross-examined numerous scientific witnesses. For many clients, he has identified additional options or theories that were not previously under consideration to resolve regulatory issues and to advance their business objectives.

202-557-3819