Pesticide registrants will likely need to add or improve “bird hazard” language on the labels of their pesticides and incorporate other information in their registration applications to persuade the EPA that they are doing their best to ensure that use of their products “promotes and enhances the protection of migratory birds as appropriate.”

Those are the major implications for businesses to be derived from a draft memorandum of understanding (MOU) between EPA’s Office of Pesticide Programs (OPP) and the U.S. Fish and Wildlife Service (FWS).  The MOU is intended to implement former President Clinton’s Executive Order 13186, which directed each federal agency whose actions have or are likely to have a measurable negative effect on migratory bird populations to develop and implement MOUs with the FWS to promote the conservation of migratory bird populations. 

FIFRA and ESA protections

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the OPP already conducts ecological risk assessments to determine which potential risks to the environment are posed by various pesticides, and whether changes to the use or proposed use of such pesticides are necessary to protect the environment from unreasonable adverse effects.  This standard of safety encompasses consideration of effects to migratory birds.

In addition, under the Endangered Species Act (ESA), the OPP considers the potential impacts of pesticides on species listed as endangered or threatened by the FWS and the National Marine Fisheries Service (NMFS) and on any designated critical habitat for those species.  The OPP is required to consult with the FWS and/or the NMFS on an action if the OPP determines that use of a pesticide “may affect” a listed species or designated critical habitat. 

Birds of conservation concern

The MOU was intended to ensure that the two agencies collaborate in areas such as:

• Exchanging information on the health of Birds of Conservation Concern (BBC);
• Improving postregistration evaluation of pesticide effects, including testing of bird carcasses for pesticide poisoning;
• Providing training to appropriate staff on the biology and ecology of BCC; and working to avoid or minimize the creation of avian stressors on migratory bird species, including nesting, rearing, feeding, migration, or over-wintering populations and their habitats.

Also under the MOU, the OPP plans to improve on its use of pesticide ecological incident data as part of a “weight-of-evidence” approach to making risk conclusions.  FIFRA requires that the registrant of a pesticide must inform the OPP of known adverse effects related to the pesticide, including ecological incidents.

Bird management

Regarding labeling, the OPP says it will work to ensure that bird hazard language appears on labels when appropriate.  The OPP says it plans to take measures to improve the quality of the language and will post examples of bird hazard language on a webpage dedicated to EPA activities related to pesticides and migratory birds.  One language addition being contemplated by the OPP would inform product users of the need to discuss with the FWS any necessary migratory bird permits and comply with permit terms and conditions during bird management actions using avicidal products.

The majority of the remaining actions to which the OPP commits in the MOU are nonregulatory and include working with other countries to enhance awareness of migratory bird issues; promoting integrated pest management (IPM) practices; improving OPP staff training as it relates to pesticide use and migratory birds; and encouraging development of rodenticides that are less toxic to birds.

Read the OPP/FWS MOU in Docket EPA-HQ-OPP-2013-0744.