July 2, 2002

Public Information and Records Integrity Branch (PIRIB)
Information Resources and Services Division (7502C)
Office of Pesticide Programs (OPP)
Environmental Protection Agency
1200 Pennsylvania Ave., NW.
Washington, DC 20460

Re: Exemption requests by the state of Louisiana for granular Carbofuran for rice water weevil, June 19, 2002. Docket ID# OPP-2002-0124.

To all concerned parties,

Beyond Pesticides, Agricultural Resources Center (ARC) and affiliated organizations appreciate the opportunity to comment on a proposal from the State of Louisiana to use the banned formulation of granular carbofuran 100,000 acres for rice weevil. As you know, carbofuran came under fire in the 1980's after EPA estimated that one to two million birds were killed each year by granular carbofuran use. According to scientists at the U.S. Fish and Wildlife Service, "There are no known conditions under which carbofuran can be used without killing migratory birds. Many of these die-off incidents followed applications of carbofuran that were made with extraordinary care." The pesticide has also been associated with the death of threatened and endangered species.

Regarding public comment on this proposal, we are concerned that EPA did not meet the legal requirement to provide a public hearing and comment period prior to approving the emergency use of carbofuran on 10,000 acres. We appreciate the belated opportunity to comment now.

The State of Louisiana has failed to meet the regulatory requirements to issue a specific exemption for granular carbofuran (Furadan) for rice water weevil. We ask that EPA revoke and deny any further use of carbofuran under section 18 of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The use of a cancelled pesticide under section 18 was not envisioned under the normal procedures of the rule governing its implementation. In fact, EPA has historically insisted that it will deny public health or specific exemption "if there is no movement toward registration of the proposed use by an interested party." (51 FR 1899, January 15, 1986) Section 166.25(b)(2)(ii) states that, "It shall be presumed that if a complete application for registration of a use, which has been under a specific or public health exemption for any 3 previous years, has not been submitted, reasonable progress towards registration has not been made."

Furthermore, Subpart D, Rules of Practice for Applications Under Sections 3 and 18 To Modify Previous Cancellation or Suspension Orders, Sections 164.130-31, says,

EPA has determined that any application under section 3 or section 18 of the Act to allow use of a pesticide at a site and on a pest for which registration has been finally cancelled or suspended by the Administrator constitutes a petition for reconsideration of such order. Because of the extensive notice and hearing opportunities mandated by FIFRA and the Administrative Procedures Act before a final cancellation or suspension order may be issued, EPA has determined that such orders may not be reversed or modified without affording interested parties --who may in fact have participated in lengthy cancellation proceedings-- similar notice and hearing opportunities.

The threshold for reintroducing a cancelled pesticide is higher than the current review procedures that EPA has followed to this point. Subpart D, section 164.131 states,

The Administrator shall determine that such reconsideration is warranted when he finds that: (1) The applicant has presented substantial new evidence which may materially affect the prior cancellation or suspension order and which was not available to the Administrator at the time he made his final cancellation or suspension determination and (2) such evidence could not, through the exercise of due diligence, have been discovered by the parties to the cancellation or suspension proceeding prior to the issuance of the final order.

In addition, the following legal requirements have not been met:

1. EPA does not have the authority under the Federal Insecticide, Fungicide and Rodenticide Act to authorize Louisiana's specific exemption request for granular carboforuan. Granular carbofuran was finally cancelled for all uses in 1996. The regulatory history on section 18 does not support the authorization of Louisiana's request. Environmental Law (Rodgers, 1988) recounts the regulatory history of section 18.

The criteria for approval (of specific, public health, and quarantine exemptions) include two specifics (an emergency condition must exist and the pesticide must not be previously banned) and a general requirement that use under the exemption "will not cause unreasonable adverse effects on the environment. (Rodgers, pp218-219)

The language of section 166.25(b)(1)(iii), as described above, states,

Registration of the pesticide use for which the exemption is requested has not been suspended under section 6(c) of the Act or cancelled following a notice under section 6(b) of the Act . . .

As discussed above, if EPA were to consider a cancelled pesticide for a section 18, it would have reopen the cancellation with new information that was not available at the time of the cancellation.

2. EPA has not undertaken adequate review of Louisiana's specific exemption request. We contend that Louisiana's specific exemption request constitutes a petition to reconsider EPA's cancellation order of granular carbofuran. However, EPA has not undertaken requisite administrative steps to warrant the authorization of such a request, specifically:

a. "Interested parties" were not notified before the authorization to proceed with the cancelled use was made. Once public notice had been made, a limited 5-day public comment period was opened, rather than the standard 15-day comment period required for the review of section 18 applications of suspended or cancelled uses under FIFRA [40 CFR 166.24(c)] "Similar notice and hearing opportunities" were not afforded to parties to the cancellation.

b. Nor has Louisiana presented adequate evidence to warrant the authorization of a specific exemption request: "The applicant has presented substantial new evidence which may materially affect the prior cancellation or suspension order and which was not available to the Administrator at the time he made his final cancellation or suspension determination…" (40 CFR 164.131). The cancellation order for the use of granular carbofuran on rice fields was undertaken after a lengthy review process. In fact, EPA enforced an order to desist using remaining stocks of granular carbofuran in August of 1999. The extraordinary hazards posed to wildlife by granular carbofuran have been widely documented. EPA has not received any new evidence to the contrary since the formal cancellation.

3. Alternatives to Carbofuran, Including Integrated Pest Management and Organic, Are Successful If Implemented. With respect to economic evidence included in Louisiana's section 18 application, we feel that the evidence presented in the application is the result of willful neglect on the part of the state. Louisiana was permitted to use existing stocks of granular carbofuran for eight years following its cancellation, in which time the state could have taken steps to ensure that discontinuation of use of granular carbofuran would not pose an undue economic burden on farmers. Alternative methods of control, such as integrated pest management practices, might have been employed by the rice growers in anticipation of granular carbofuran's absence. There are also several cultural practices that can further decrease the potential damage caused by the rice weevil. In field studies, delaying the flooding of rice fields by just two weeks reduces the number of larvae in the field and dramatically diminishes the susceptibility of young rice to a weevil infestation. Early planting of rice can prevent loss to weevils.

Organic rice growers in California have found that their practices have prevented weevil problems due to a two-year rotation from rice to oats or vetch. In addition, weed control methods in organic production that dry out the fields have the added benefit of controlling weevils and other insects.

Instead, EPA has simply moved to reinstate the use of the cancelled pesticide rather than complying with the cancellation order. With regards to granting section 18 requests for the purpose of averting a significant economic loss, EPA has determined that "…in order for an emergency situation to exist in this instance, there must not only be a significant economic loss, but it must also be as a result of a pest outbreak or unusual environmental conditions." (40 CFR 166.3) While there may in fact be data to suggest that Louisiana will suffer an economic loss due to rice weevil this year, there is no evidence to support the claim that it is due to an emergency situation, as the statute requires.

4. EPA does not have the authority to grant Louisiana's request for a specific exemption. Unless all the procedural requirements are met, and EPA makes a final decision to revoke cancellation of granular carbofuran, the agency does not have the statutory authority under section 18 to grant the exemption request.

5. Exemptions may only be granted for emergency situations. The failure of a specific pesticide under normal conditions does not establish the requisite criteria for an emergency exemption. Fipronil has been used for rice weevil since use of existing stocks of granular carbofuran was discontinued in 1999. Fipronil has failed this year because it is broken down in water by hydrogen sulfide -- a typical breakdown product of organic matter, commonly produced when rice fields are flooded. The rice water weevil is an important pest of the rice fields in Louisiana, and its continued presence does not constitute an out-of-the-ordinary situation. "An ordinary situation would include normal fluctuations in pest populations or environmental conditions. A chronic or re-occurring problem does not represent an 'urgent, non-routine situation'" (40 CFR 166.3).

6. Louisiana has failed to present adequate evidence of carbofuran's efficacy for the proposed use. To qualify for an emergency exemption, the situation must "cause significant economic loss due to: an outbreak of a pest; or a change in plant growth or development caused by unusual environmental conditions where such change can be rectified by the use of a pesticide(s)" (40 CFR 166.3). The current conditions in Louisiana can not be rectified by the use of granular carbofuran. According to Dr. Mike Stout of Louisiana State University, it is too late in the season for the use of carbofuran to have any effect on the rice weevil problem now facing farmers .

Louisiana rice growers seem to have disregarded their pursuit of a workable solution to a significant, ongoing pest problem. Several other pesticides are registered for use on rice to control the rice weevil, and the effectiveness of alternative (non-chemical) controls, such as draining the fields, have been documented as well. After 1998, when stocks of granular Carbofuran were no longer permitted for use, growers began using fipronil, which is much less toxic to birds than carbofuran. Fipronil's failure this season has triggered the rice growers' application to use a banned pesticide, rather than using other approved measures to mitigate losses from the rice weevil. Louisiana rice growers need a viable solution to a chronic pest problem, not the re-introduction of a long-cancelled pesticide.

7. Louisiana may set a bad precedent for other rice-growing states. Section 18 exemptions often spill over into other states. That is probable in this case, since weather conditions in other rice-growing states may be similar to Louisiana's, and because the manufacturer is not likely to limit production to the amount requested for the Louisiana exemption. Allowing the use of granular carbofuran in Louisiana could potentially lead to more widespread use in other rice-growing states, further compounding the potential for harm to bird populations.

If the emergency exemption is not revoked and EPA authorizes FMC Corporation to begin manufacture of granular carbofuran, it would set a dangerous precedent for other cancelled pesticides to be re-introduced to satisfy the demands of section 18 requests for any use. EPA must hold firm to its regulatory authority and block such a crisis before it starts. The Agency must also obey its own regulations in treating section 18 exemption requests for cancelled or suspended pesticides with the appropriate level of scrutiny and transparency required by law.

EPA was right to cancel granular formulations of carbofuran in 1991; it presents an unreasonable hazard to birds, as well as humans and other wildlife. This is not the time to re-introduce old chemicals. Instead growers, regulatory agencies, and researchers should be working to find more sustainable solutions to our pest management problems.

We ask that EPA immediately revoke the authorization of Louisiana's specific exemption and block treatment of the remaining 7,500 acres of rice fields with granular carbofuran. We ask that EPA cease any consideration of Louisiana's request for a specific exemption, because the agency has not followed procedural requirements for requests to reconsider cancellation. Further, Louisiana has not presented sufficient evidence to warrant such consideration. We also ask that EPA monitor the bird populations in the area where 2,500 acres have already been illegally treated with granular carbofuran to determine what harm may occur as a direct result of the misuse of the crisis exemption procedure.


Fawn Pattison
Executive Director
Agricultural Resources Center

Jay Feldman
Executive Director
Beyond Pesticides