Sulfoxaflor - Final Cancellation Order
Summary
This notice announces the Agency's issuance of a final cancellation order for all pesticide products containing the active ingredient sulfoxaflor pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. sections 136-136y. This order includes provisions for the disposition of existing stocks of sulfoxaflor products that have been released for shipment prior to today's date. Under the provisions of this final cancellation order, as of today's date, it is unlawful for the registrant to sell or distribute these products except for the purposes of proper disposal or lawful export. Sale or distribution of sulfoxaflor products already in the possession of persons other than the registrant may only be distributed to facilitate return to the manufacturer or for proper disposal or lawful export. Use of existing stocks by end users is permitted provided such use is consistent in all respects with the previously-approved labeling for the product.
Background
In 2010, EPA received applications from Dow AgroSciences (DAS) to register three new pesticide products containing the active ingredient sulfoxaflor – a sulfoxamine insecticide – under section 3 of FIFRA, 7 U.S.C. 136a, for use on a wide variety of agricultural crops. After an opportunity for public comment, EPA issued a decision to register sulfoxaflor on May 6, 20 13 with several restrictions intended to reduce sulfoxaflor's risk to bees. Three product registrations containing sulfoxaflor were initially granted in May of 2013, and four registrations were granted later based on the earlier decision to register sulfoxaflor and their similarity to the three initial registrations with respect to sulfoxaflor. The products are: Sulfoxaflor Technical, Closer SC, Transform WG, GF-2860 Ornamental, Seeker, TwinGuard WG, GF-3052 WG (EPA Registration Numbers 62719-631, 62719-623, 62719-625, 62719-676, 62719-677, 62719-678, and 62719-681, respectively).
On July 2, 2013, the Pollinator Stewardship Council along with other pollinator advocates and beekeepers, petitioned for review of EPA's registration of sulfoxaflor decision in the Ninth Circuit Court of Appeals. On September 10, 2015, the Court issued its opinion in Pollinator Stewardship Council, et al. v. EPA (No. 13-72346). Finding that EPA's registration of sulfoxaflor was not supported by substantial evidence, the Court vacated the registrations and remanded them to EPA to obtain further studies regarding the effects of sulfoxaflor on bees. The vacatur of the sulfoxaflor registrations became effective November 12, 2015, such that the registrations were no longer in effect under FIFRA, and no new sulfoxaflor material could or can lawfully be released for shipment by manufacturers unless and until new registrations are issued.
Agency Authority to Issue Cancellation Order to Regulate Existing Stocks
Before addressing the appropriateness of allowing sale, distribution, or use of existing stocks of sulfoxaflor, we first address the threshold issue of whether the Agency has the authority to issue a cancellation order in the circumstances presented by the vacatur of sulfoxaflor. EPA
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