By: Charles Linder
This article is written with the intention of being shared as widely as possible. Any reporters, politicians or interested parties need to be informed. Email me for a copy in any format you like. Information was added to help people who are not aware, understand the impacts of where we stand.
Note: All information and views expressed in this article are the author’s. They may not reflect the views of Bee Culture. Please contact the author with all comments, questions and concerns related to this article.
I am sure by now all of us are well aware of varroa mites, and many of the various methods of treatments. What many are not aware of is where we actually stand legally vis a vie, the EPA.
As it stands, the industry faces serious problems and restrictions. While on one hand, it seems we have several new things in the works, like extended-release oxalic acid (OA), vaporizing and various other methods. Very few of us understand the legality of these developments. I will endeavor to explain where we are and our roadblocks.
As it stands now, there are several EPA approved treatments. Formic Pro, Apivar, Api-Bioxal OA, and Hopguard are the main players. All of these have been through the EPA approval process, and have been granted approvals. Api-Bioxal was actually pushed through via the USDA, which then transferred the rights to a private company (why not a U.S. company is a whole other discussion).
What’s key to understand is that all of them are contingent on you purchasing the product and following the label to the letter. Any variation in application process other than what is specifically spelled out is a violation of pesticide application. For example, if you vaporize OA, which is pretty common these days, you MUST purchase Api-Bioxal and buying any other brand of OA is prohibited. Any “wood bleach” or other OA, even lab grade, unless sourced through Api-Bioxal, is not legal.
The directions are spelled out, at one gram per brood chamber. Many of us already know that this dosage has been proven to be insufficient, any increase is not approved, although there do not seem to be restrictions on time intervals at the moment.
These rules apply to all of the “approved” products. You are not allowed to use “extra” or modify the application from what is printed on the label. This regulation is the same type of regulation we ask our farmers to comply with. The EPA guidelines specifically prohibit any off-label usages for everyone. We in particular, as the group who complains when farmers freelance, should be especially aware of the situation and the hypocrisy of our position.
Many of us think and act like the rules do not apply to us, and no one really will bother us, but be careful in that thinking. There are federal groups calling for enforcement actions of beekeepers in general, and I am aware that two larger beekeepers have been fined, as well as jail time for people smuggling treatments in from Mexico. Up until a year ago, you could buy many unapproved treatments via the internet. The Federal Trade Commission has already put a stop to that.
Impact Statement:
Is is key to really comprehend the impact of the current situation. As beekeepers, we know annual losses of hives have been hovering around 45-50% for at least a decade. So far, our commercial side has managed to keep up with losses, but at a price of seriously reduced honey production and great expense. Without effective LEGAL treatments, we are at serious risk of not being able to continue supplying pollination to the nation’s farmers. As proof, just look at the almond pollination in California. We have been short bees every year, and pollination prices have continued to rise because of it.
“Honey bees pollinate $15 billion worth
of crops in the United States each year, including more than 130 types of fruits,
nuts and vegetables.”
—USDA website
*This does not include the billions of dollars in pollination fees and honey sales in the U.S., nor does it include the ~400 million dollar a year business of bee sales in queens, nucs and packages.
I believe strongly we are very close to a tipping point. Demand will out strip supply. If you look closely at Bee Informed Partnership’s numbers, you will see losses continue to rise, as virus and varroa loads get harder to manage. I myself run fairly high losses, and viral checks clearly show varroa vectored virus loads are to blame.
At the same time, demand has continued to rise, small scale beekeepers want to be more involved and an additional huge factor only a few of us are aware of is that the demand for pollination keeps rising. The number of hives per acre on most crops has risen in the last five to eight years. Blueberries have risen dramatically as they want the berries ripe at the same time. In my operation, which is mostly watermelons and pumpkins, growers have doubled the hives per acre as we show them more harvestable fruits per acre are a benefit, and it costs more to farm per acre. When I started, most melons were one hive per four acres. The same growers are at one hive per acre now. As the arable land decreases and the demand for produce increases, I suspect we’ll approach a tipping point faster than most realize.
Every factor of bees cost has at least doubled in the last 15 years due to supply issues, from packages to nucs to pollination fees and honey cost.
So How Did We Get Here?
A little history is in order. The below is taken directly from Randy Oliver,
The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) was signed into law by President Harry S. Truman in 1947 to regulate the distribution, sale and use of pesticides. In 1972, power was transferred to the Environmental Protection Agency (EPA) (which had been established by President Richard Nixon in 1970). The first iterations of the law focused on labeling and ensuring that chemicals were not adulterated, but did not focus on the environmental and public health effects of pesticide use; this did not come until 1972. Congress has passed amendments to FIFRA numerous times since then.
FIFRA now contains 284,623 words and is enforced by the Office of Pesticide Programs (OPP). Unless specifically exempted, all pesticides distributed, sold or used in the United States must be registered by the EPA and regulated by the Office of Pesticide Programs (OPP). In order to gain registration, a manufacturer must show that the pesticide will generally cause no unreasonable risk to man or the environment, while taking into consideration the economic, social and environmental costs and benefits of use of the pesticide, dietary risk from residues, as well as not endangering agricultural workers during their application.
So, what exactly does this mean? If you want to sell, give away, share or use anything you claim is intended for pesticidal use, you need EPA approval. Approval may be granted via a lengthy and expensive process. In most cases, a basic, simple pesticide will take about four years. You will be informed the approval is mere months, but it’s very deceptive, that means approved from the point they consider your application is complete. Most pesticides will require submission of quite a bit of data on both mode of action and chemistry of the active ingredient. You will need to prove your active ingredient is pure, and certify a supplier. This is part of the submission packet. Label design and requirements also need to be included. Again, this is prior to actual submission. Many things require months or years of data collected and organized, prior to that submission. That’s part of what’s not included in their calculations of time. They also don’t include any of the delays you will encounter just getting the ball moving, or if they don’t like your data.
Last year, Randy and I were working on getting an extended-release project approved. We were told it would be a simple “cite all” process where we could show we were doing what the USDA had already approved. It seemed to be an easy process, just submit a “cite all form” and what’s known as a “me too” application, a sample label and your formulation, in this case a cellulose pad and glycerin as a carrier.
Just to get what is called a “pre-submission” meeting took four months to get accomplished. In that discussion we learned a bit. The tentative answers were fair in that they would probably accept the new formulation (glycerin and cellulose) without requiring a new data packet. Approval time once the forms are submitted is 13 months. Okay, so I spent a week or better trying to noodle through it, did well I believe, but then we hit a snag. Turns out there is only one source listed for OA as an active ingredient (listing sources is a requirement). That source is a lab grade supplier (in the end there may actually be three possible) but lab grade OA is in the $60 a pound range from that supplier. We argued that OA is all 99.6% pure by the very nature of the process of making it, it’s actually a worldwide commodity. Doesn’t matter.
I am told then, that we can go to the list of suppliers approved by the EPA. It’s some 17,000 companies. I searched and crossed referenced it for three days trying to find a supplier of bulk OA who’s on the list, turns out that answer is zero. Many lab grade suppliers are at a very high cost, but none of the bulk suppliers are.
We have to accept and admit as industry leaders the current methods of legal mite control are failing the industry. This is the basis for the huge losses we continue to see.
After all that digging, I also come to learn, it doesn’t matter, we will still have to resubmit purity specs from the new supplier, even if they are on the list. This is a small detail but, another delay.
So now we are told we have to file a “me too” unregistered supplier application. Approval time is now 23 months, AFTER we pull together all the data they want. The trick is, no one I talked to was interested in being an EPA supplier for just a few tons. The market is way too small.
So where does that leave us? We could do a “me too”, but we have to buy the product from the Api-Bioxal source. Now they are a fine company, but a bit of common sense will tell you it would not be economically viable to market a product where we have to buy it from another retailer first, when as beekeepers, many are self trained to use eBay as their supplier of cheap product.
Oh, and the last detail, they are going to need data on the new application method, they won’t accept it as a slight variation, but in fact a new method.
What started out as a way to legitimize the extended release and provide a reasonably priced prepackaged pad, slowly turned into a rude awakening of the industry problems.
The Irony
Please understand, this is not to pick on the EPA. The system is slow and deliberate for some good reasons. I would also say everyone we have dealt with has been fair and open, but the system is not flexible at all, even with a very simple natural organic acid, that is, get this, on the EPA list as a generally recognized as safe (GRAS) list of commodities. In other words, if you want to add OA to any pesticide, but don’t list it as the active ingredient, its legal to purchase, from any source you like!
There is just no system in place to be forgiving or understanding at all. Even with something as simple as already proven organic naturally occurring chemicals, even the choice of supplier has to be checked and approved long before any product is distributed or used.
This is a problem that is particularly ugly due to the ever-changing landscape of application methods in regards to OA at this point, but it’s also a huge problem overall when our livestock life is measured in weeks, and any methods to use take years to be approved. In details, OA and formic as well as thymol are still being tweaked and changed in how we apply them to get best efficacy. Not just here in the U.S., but worldwide. Many researchers and beekeepers are working on improved delivery, all of which fall under experimental. The learning is going lightning fast.
So, what this means is that beekeepers, to stay ahead, are reading printed articles and research papers, swapping stories and scouring social media, and then trying to interpret that and apply what they think they learned. Not only is this not legal, it’s not in our best interest. Many of us have trouble with the formulas, or think we can substitute the mix, or that we know better. So many applications are misunderstood, and it’s not legal to provide clear and concise instructions with and distribute with an active ingredient. We are, in effect with the current status, making many beekeepers manufacturers of pesticides, with zero control. This is not a good plan in any shape or form, and please, keep in mind I did not even discuss personal safety. Vaporizing OA is potentially dangerous, and I myself have sustained two separate serious formic injuries despite proper PPE.
We should also be very clear, with the current system bringing new products to market is a huge obstacle. Hats off to those who have navigated the system, but it is also why off the shelf treatments are a bit pricey. While it seems the five to eight dollar a hive sounds like a great profit, that’s a few million a year, right? Keep in mind, a simple package of a cellulose pad wrapped and shipped works out to close to three dollars in materials and packaging alone. Profit margins are actually very slim on these things.
As of right now, I am aware of at least two potential treatments that show great promise, but will most likely never be seriously considered due to this approval obstacle. It’s disheartening knowing many researchers who might be able to help will never see the projects as they have so little profit potential. This is a huge problem with varroa, tracheal mites and small hive beetles. I cannot even begin to imagine what will happen when and if tropilaelaps ever reaches us. Make no mistake, a good portion of the lack of progress on varroa is due to the small size and lack of profit potential in our industry.
That’s a fairly complete summary of where we are currently, so let’s talk about options. At this point, there are not many. One is obviously to continue as we are. One might argue this system is working. Don’t rock the boat, you’re only bringing attention to us, has been stated. Unfortunately, that is inaccurate. I have seen documents that show some federal agencies are already calling for enforcement, I know some states are looking into having inspectors start looking into it and we know some fines have already been levied. Status Quo is not a plan.
I seriously believe at some point there will start to be more enforcement and that is a problem. It will either end in less beekeeping, a real shortage of bees and/or making beekeepers even more likely to use illegal treatments with no supervision.
Exemptions: In the last couple of years, state groups have pushed for local and state exemptions, otherwise known as a 2ee exemption. This, in general, allows the state Ag dept to make a special exception in pesticide usage. Generally used for something like a local outbreak, like say spotted lantern flies, and a serious need for a quick short-term fix.
There were three issued last year that I know of, Vermont , Delaware and New York. The EPA took the extraordinary step this March, of what can only be called a WWE style smackdown. They not only denied the petition for 2ee, they went into great detail about how they had zero intention of allowing ANY variation in the current approved application methods, and this was just for OA, something that most everyone considers safe and harmless.
Skirting the rules: It is quite clear by the wording that EPA rules only apply if you claim pesticidal actions. For example, we have even been advised that selling top bar cleaning pads would be legitimate and perfectly legal way to distribute OA glycerin pads. As long as they make no claims of effectiveness as a pesticide! The same would go with formic or thymol, for example. We can use thymol to enhance the aroma of the hive all day long, or OA to clean and brighten the interior of the hive. On the commercial side, with only at best a couple thousand beekeepers, one could, with a wink and a nod, advise the best way to clean those top bars and pesky odors. But that leaves out the almost 150K “backyarders” and hobbyists, most of which participate very little in meetings and reading things like this. It also requires that researchers or people working on this disseminate their information, strictly on goodwill. Right now, we have some who are doing that, but it’s not a way to move an industry forward. It puts that person at the risk of the wrath of the EPA, for nothing more than a goodwill gesture. It puts many people at the mercy of the latest Facebook chemistry wizard, who may swear to things that can cause serious bodily harm while telling you how to kill mites. Zero accountability is not a good plan as I see it. Fogging mineral oil is one that quickly comes to mind. This would also never help us should there be some sort of chemical solution. Things such as amitraz, which has to be formulated, would never work under this method.
Last but not least, changing the rules. For the last few months, Randy and I have been exploring options as best as we can. We have had several meetings with the key players and have prodded all the edges. Here is a summary of where I believe we are.
We talked about FDA and allowing veterinarians to get involved, that idea is not popular with beekeepers as the FDA can be even slower and more cumbersome to deal with, and it seems the veterinarians are not keen on helping us either.
We talked to the USDA about taking us under their wing. The USDA has bee experts (EPA and FDA do not have any experts on bees and defer to USDA anyway). The USDA currently does no regulation of pesticides and are not interested at all in the idea, and EPA is not keen on it either. This one would be an impossible task as no one at all is in favor of it, and would be a monumental undertaking.
We, of course, have asked the EPA for considerations, and there is zero chance of any special considerations without them being written into law. At the moment, EPA is also unwilling to support any changes as that was where we headed next.
So, where we are now as I write this, while we received no help, we did get the understanding that legislative change may be possible. We, as beekeepers, are well received as most are aware of our value to food. From that, we were advised the best bet would be some legislative changes in the Farm Bill. 2023 is a Farm Bill year, and although time is short, the ABF has a great lobbyist, and with his help we drafted a plan. There are actually two forms of the plan, and I will detail those out in a moment.
The Plan Submitted
Was/Is as Follows
First, have beekeeping officially designated as a “minimal use crop”. While we are livestock, and livestock is our crop, that is slightly different from normal thinking. Currently, the EPA allows for this by accepting us unofficially as minor use. But, the ONLY perk is reduced fees. There is no change in the paperwork requirements. So, one may ask, why bother? Simple, in the future no one would be required to prove there is no money in it, which saves time, and potential companies would be told so up front. And secondly, and most importantly, we would now be a special group. As such, we in the future can ask for things that apply only to us. This is important.
The reason this is important is the next step, and that is the key for now, that OA, thymol and formic be listed as “Minimal Risk Pesticides” for use only on this crop. Most of the exemptions and such are crop specific, such as potatoes. Being referred to as a crop officially makes us a category.
Its easy to conflate “minor use crop” and “minimal risk pesticide” but they are separate and distinct categories. “Minor use crop” means it’s applied to such a small area, EPA is not concerned. They recognize there is little profit in them and will reduce fees. Generally, this would apply to anything less than 300,000 acres. Believe it or not, if you packed every beehive together it’s actually less than 200 acres (that’s packed tightly) so we are well within this restriction.
“Minimal risk pesticide” (know as the 25B list) is the second category. This list is fairly small, while I didn’t count, it’s around 200 things. The key is the EPA has only added to this list just once in recent history. The reason for this is simple, they need to be sure that there is literally no way you could misuse it. Trying to predict ways people may want to use something as a pesticide and making sure it’s always safe, is a big task. It’s much easier and less risky to just not add to the list. For example, OA, while they may fully agree it will never be a problem in a beehive, they cannot say that it would be safe to use on everything. It may be a huge problem in other areas.
This is important, because the legislative idea was to require the EPA to recognize OA, formic and thymol, for beehive use only. Which we have already shown as safe. We had hoped they would be more willing to allow us under 25B if it was more restricted to bees only.
The second idea is to copy the New Zealand rules. The NZ government has allowed what it calls a “own use” exemption. They wrote a simple rule allowing beekeepers to formulate their own treatment, and it is very simple and straightforward. We could even copy the verbiage.
As such, both ideas are great. Neither address the elephant in the room which is Amitraz and any future pesticides, but either one does address the gorilla in the room in regards to the organics. We had been led to believe that there may not be a lot of resistance on the topics, as such we picked the first one, suspecting from our conversations, EPA would not be in favor of beekeepers self-formulating.
In June, during Ag week on the hill, the ABF leaders and lobbyist, presented the plan. We were immediately told both ideas were not starters from the legal departments. I do have to say given our prior work and conversations, we did not expect this.
I need to address how this works. For us to slip it into a bill, farm bill or not, we need a sponsor. A Senator or Congressperson who will allow us to ride their coattails. We have a few of those, and as such, would ask one of them to allow their congressional aids to add our request to the bill.
Unfortunately, the very first thing those aides do, is ask the effected agency if it’s okay with them. In this case, they ask the EPA, and of course the EPA is going to say no, we do not accept that. To avoid controversy and stalling the bill, the aide then pulls it out and it’s done.
So that is where we stand right now. As painful as it is to say, despite months of groundwork, we have nothing. This leaves us with two options.
The first, we can continue with the plan as worded. To do that, we need to find a Senator or Congressman who is well aware of and willing to take on the fight. Which means we need direct contact to and with the legislator so that we can really explain the process and problem. Preferably, we need both one in the House and Senate. A real firebrand who is willing to go to bat for us. Make no mistake, this is a big task to accomplish in the next six months. Anyone who can help, please contact us.
The second is to actually file suit against the EPA. One could make a strong case that in regulation of these three, the EPA is misreading FIFRA and overstepping its bounds. We have been advised EPA does not agree and would fight aggressively. FIFRA does clearly state that its regulation applies only if use of a pesticide creates an “unreasonable risk to man or environment.” We could make the case that the use of these natural plant products by beekeepers does not create an unreasonable risk. Such an exemption would apply solely to the private use of these treatments, and would not effect the registration or sale of formulated products.
EPA will claim since it’s already regulated it is a risk that needs to be regulated.
In this, the own use rule is key, as FIFRA does. As I read, it gives the power to the EPA to regulate the sale and distribution of anything making the claim of pesticidal action. Either way it’s also a tough option. We would need to find legal assistance, and that is not an easy task. The EPA and USDA did provide us with a list of potential law firms who may be willing to help, and suggested we ask for pro bono assistance. Even if we are victorious, it only would cover the organics.
At this point, my personal plan is a public plea to find congressional help. We have a few months to slip into the farm bill, if that fails, then we are only left with ignoring the issue, or hiring lawyers. In the meantime, we should be on the lookout for a test case, and a member of the legal community who can aid our search.
Any thoughts, comments, questions or help you can provide, please feel free to email me, or contact any ABF director.
This article is written with the intention of being shared as widely as possible, any reporters, politicians or interested parties need to be informed. Email me for a copy in any format you like.
Charles Linder
Commercial beekeeper and SIG director at ABF
GM_Charlie@frontier.com
ABFnet.org@gmail.com
