DRAFT IN PROGRESS updated 17 June 2023
Suggested Text for an Amendment to FIFRA
I have zero legal background, but suggest that we pitch a short and sweet amendment to be placed in the Farm Bill. There is already a section in FIFRA for exemptions from regulation, so I wrote up a suggested draft — we’d clearly need to run this by an attorney.
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118TH CONGRESS 1ST SESSION
To amend the Federal Insecticide, Fungicide, and Rodenticide Act to provide an exemption for pesticidal own use by beekeepers of generic natural substances applied to their own hives.
A BILL
To amend the Federal Insecticide, Fungicide, and Rodenticide Act to provide an exemption for pesticidal use of specified generic natural substances by beekeepers, limited to application to their own hives.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress
SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Beekeeper Own Use Exemption of 2023’’.
SEC. 2. EXCLUSION FROM REGULATION UNDER FIFRA.
IN GENERAL. The Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.) is amended by inserting after section (7 U.S.C. 136a (b) Exemptions) the following:
‘‘(1) EXEMPTION FOR OWN USE BY BEEKEEPERS OF GENERIC NATURAL SUBSTANCES
‘‘Since the use of generic oxalic acid, formic acid, thymol, or food-grade plant oils applied to bee hives poses no unreasonable risk to man or the environment, the use of these substances for parasite control in one’s own bee hives shall not be subject to regulation under this Act. This exemption is limited to the preparation and application of these generic products by a person for their own use, and does not affect the requirement for registration of products to be advertised or sold for pesticidal purposes.”
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Suggested Pitch to Legislators
This amendment is a combination of the exemptions for Minimal Risk pesticides and Minor Use Crops, and bypasses the EPA by instead asking Congress to add a tiny amendment to FIFRA in the upcoming Farm Bill.
Here’s the problem: it is completely legal for a beekeeper to put generic oxalic or formic acid, thymol, or plant oils into their hives for the purpose of colony health, bee repellency, or the cleaning of frames or combs. Neither the EPA or FDA are concerned about risk to the environment nor to the honey consumer. But if in their mind the beekeeper is using them for pesticidal purposes, it would be against the law. I underlined the two key words — generic and use. This is not about the sale of pesticides, only with regard to use of off-the-shelf generic natural substances. Our predicament is that this creates a cloudy situation for beekeepers and those responsible for the enforcement of FIFRA.
New Zealand’s Ministry for Primary Industries, understanding this predicament, and realizing that (1) beekeepers needed help (and would likely help themselves anyway), and (2) that these generic natural substances applied to bee hives posed no risk to man or the environment, wisely granted beekeepers an Own Use Exemption [[i]] for “compounding of substances for their own use.” To wit: “(1) The exemption applies to a substance or compound prepared by a person for use on animals or plants that they own, or on any land, place or water that they own or occupy. (2) In a beekeeping context, the ‘own use’ exemption is commonly used when a beekeeper prepares and applies preparations containing generic substances, such as oxalic acid or formic acid, to their own hives for control of Varroa mites.” The preparations can only be made by the beekeeper for their own use, and cannot be advertised or sold.
Pesticide regulation is different in the U.S. than in New Zealand, so (in my opinion) our best course of action is to combine the elements of the “Minor Use” and “Minimal Risk” components of FIFRA, and ask our legislators to place an amendment to FIFRA in the upcoming Farm Bill, granting an exemption to regulation for beekeepers applying generic thymol, oxalic, formic, or lactic acids, or food-grade aromatic plant oils to their own hives.
The logic for an exemption comes from the text of FIFRA itself:
7 U.S. Code § 136a – Registration of pesticides
(a)Requirement of registration
Except as provided by this subchapter, no person in any State may distribute or sell to any person any pesticide that is not registered under this subchapter. To the extent necessary to prevent unreasonable adverse effects on the environment, the Administrator may by regulation limit the distribution, sale, or use in any State of any pesticide that is not registered under this subchapter and that is not the subject of an experimental use permit under section 136c of this title or an emergency exemption under section 136p of this title.
I boldfaced the key words ― the Administrator may limit the use of a pesticide only if it causes unreasonable adverse effects. Since application of the generic forms of these natural generic substances within the confines of bee hives would clearly not result in any unreasonable effects on the environment, it is not necessary for the Administrator to regulate their use (as opposed to registration or sale of formulated products), and such use should be exempt from regulation under FIFRA. We’d simply be asking for our legislators to codify that fact, not with an emergency exemption, but rather a specific exemption amendment to section 136a.
The advantages of this option are:
- This could be a minor amendment to FIFRA included in the Farm Bill, by simply adding an additional exemption.
- EPA would continue to regulate the sale of any products sold for their pesticidal effects against varroa.
- But beekeepers would be exempted from regulation for the use of (as opposed to the sale of) these specific natural substances.
- It would be limited solely to applications to bee hives by the beekeepers themselves.
- Any preparations of the generic substances could only be made by the beekeeper for their own use.
- No prepared products could be advertised or sold for pesticidal purposes unless they were registered with the EPA.
- It would be up to the beekeeper to decide how to choose and use each substance or product (in rotation), following guidance by USDA’s Office of Pest Management Policy or by state agricultural extension.
Perfectly legal for a beekeeper to apply generic thymol, or formic or oxalic acid to bee hives for bleaching or as bee repellents, but not as “pesticides.” All three of these are “natural” substances have been granted tolerance exemptions in honey, so are of no concern to the consumer. Because the readily-available generic substances are not only cheaper than the registered miticides on the market, but also of less risk for an individual to apply, beekeepers are commonly applying homemade formulations of these generic products, which is technically in violation of the law, the problem being an overprotective “nanny state“ with unrealistic and limited label restrictions. This is not a question regarding the registration or sale of formulated pesticides, for which the EPA’s Office of Pesticide Programs is responsible, but only about the “use” of these natural substances by beekeepers themselves for varroa control.
Since application of the above natural substances to bee hives poses no “unreasonable risk to man or the environment” such “own use” should be exempted from regulation by EPA.
7 U.S. Code § 136a – Registration of pesticides
(a)Requirement of registration
Except as provided by this subchapter, no person in any State may distribute or sell to any person any pesticide that is not registered under this subchapter. To the extent necessary to prevent unreasonable adverse effects on the environment, the Administrator may by regulation limit the distribution, sale, or use in any State of any pesticide that is not registered under this subchapter and that is not the subject of an experimental use permit under section 136c of this title or an emergency exemption under section 136p of this title.
UNREASONABLE ADVERSE EFFECTS ON THE ENVIRONMENT.—The term ‘‘unreasonable adverse effects on the environment’’ means (1) any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide, or (2) a human dietary risk from residues that result from a use of a pesticide
For pesticidally active substances coming from natural sources, any requirements to establish and enforce finite tolerances are untenable. Regulatory processes set in place by the U.S. EPA to regulate conventional pesticides, which involve formal nature of residue and magnitude of residue studies along with quantitative analytical chemical methods to facilitate tolerance enforcement, obviously have no pertinence to regulating naturally occurring substances that are ubiquitous. A concept to conduct guideline studies supporting defined tolerances on natural and ubiquitously occurring substances to which humans, livestock, and wildlife are exposed, regardless of human activity, easily falls into absurdity. This, we believe, is the principal underlying reason for the existence of FIFRA (et. seq.) sec. 25(b) in the first place. https://www.regulations.gov/comment/EPA-HQ-OPP-2020-0537-0013
The restriction against selling is a key point that differentiates this Action Item from the previous Minimal Risk Exemption, since (1) EPA would continue to regulate the use of the acids or thymol in formulated products for sale and (2) current registrants of formulated oxalic, formic, or thymol products would not have wasted money in getting their products registered (so there may be less pushback by them against this, since it still leaves the door open for companies to develop, register, and sell formulated products for beekeepers who would rather purchase tested ready-to-use treatments). It would also promote experimentation and development of new application methods that could then be submitted for regulatory approval).
Beekeepers themselves are in the best position to balance the chemical risks to the applicator involved in using oxalic or formic acids or thymol, versus the need to wear protective gear in hot weather, and the dangerous labor involved in unstacking and restacking honey supers to apply a treatment ― based upon my own practical field experience, EPA’s label requirements are ridiculously excessive. Unlike as with the application of neurotoxic synthetics, so long as an applicator wears safely glasses when handling acids, there is little risk of long-term health issues involved in the handling of these active ingredients. Beekeepers in risk-averse Europe are allowed to handle liquid formic acid (not to mention that aerosol cans of concentrated lye oven cleaner are routinely used in the kitchen.
Beekeepers are already aware of home-made inexpensive and efficacious application methods for the organic acids and thymol, and will likely continue to concoct their own formulations, using the off-the-shelf generic active ingredients — if
The primary objective of FIFRA is to ensure that, when applied as instructed, pesticides will not generally cause unreasonable risk to human health or the environment.
[i] https://www.mpi.govt.nz/dmsdocument/37901-Advertising-and-own-use-guidance-for-compounds-for-management-of-disease-in-beehives-Guidance