EPA Issues Advanced Notice of Proposed Rulemaking for Public Comment to Seek Additional Information on Use of Pesticide Treated Seed and Paint

Released on October 12, 2023

The U.S. Environmental Protection Agency (EPA) is issuing an advanced notice of proposed rulemaking (ANPRM) for public comment to seek additional information on the use of pesticide-treated seed and paint products. In particular, EPA is looking to better understand whether or to what extent pesticide-treated seed and paint need to be further regulated. Based on the Agency’s findings, EPA may pursue a rule or take administrative action to address any issues with the use of pesticide-treated seed and paint. Comments can be submitted to docket EPA-HQ-OPP-2023-0420 at www.regulations.gov for the next 60 days.

Background

Pesticide-treated seeds have been treated by pesticides such as fungicides, insecticides and nematicides prior to use to protect them from diseases, insects, or other pests that could harm a crop. Pesticide-treated paints are treated with antimicrobial pesticides to preserve liquid paint and to protect dried paint from mold and/or algae growth.

These products are exempt from registration requirements under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) if they meet the exemption criteria pursuant to a regulation known as the Treated Article Exemption. Rather than registering treated seed or paint under FIFRA, EPA requires registration of the pesticide that is used to treat the seed or paint (known as the “treating pesticide”). During the pesticide registration and registration review process, the agency completes comprehensive human health and ecological risk assessments to ensure that use of the pesticides—including use of the treated seeds and paints—will not cause unreasonable adverse effects to human health or the environment.

However, states and other stakeholders have raised questions about the clarity and enforceability of instructions specifically relating to use of the treated seed products (i.e., instructions relating to the storage, planting, and management of the treated seed). And, in April 2017, the Center for Food Safety (CFS) filed a petition with EPA that asked the Agency to interpret or amend the Treated Article Exemption so that it does not cover seeds treated with systemic pesticides, and to aggressively enforce registration and labeling requirements for such treated seeds. EPA denied the petition in September 2022, but its response mentioned its intent to issue this ANPRM and to explore the option of a rulemaking to regulate the use of treated seed. EPA is also using this ANPRM to consider requiring labeling instructions on treated paint products. The labeling would address potential risks of concern for professional painters who do not use personal protection equipment when applying treated paint.

ANPRM Details

EPA is seeking comment on:

• how growers manage treated seed products, including how they store, plant, and dispose of these products;
• the extent to which treated seed products are used in the United States;
• whether or to what extent treated seed products are being distributed, sold, and used contrary to treating pesticide and seed bag tag labeling instructions;
• whether label language recently proposed for use of paint products treated with diuron—which may be proposed for other treated paint products—should be made enforceable, and if not, whether other regulatory or administrative options should be considered;
• whether those who manufacture treated seed and paint should be subject to some registration and reporting requirements under FIFRA section 7 or other requirements (e.g., filing of a “notice of arrival” for all imported treated products; and
• whether further regulatory or administrative measures are appropriate to ensure the safe use of treated seed and paint.

After reviewing public comments, EPA will consider further actions, which may include regulations to limit the scope of the regulatory Treated Article Exemption, enforcing use violations, and taking administrative action to clarify labeling requirements or reduce the use of a treating pesticide.

To comment on the ANPRM, visit EPA-HQ-OPP-2023-0420 at www.regulations.gov.