Time for Plan B?

Time for Plan B?

Randy Oliver

ScientificBeekeeping.com

First Published in ABJ June 2024

 The varroa mite invaded beehives in the U.S. nearly 40 years ago, and has been our major problem ever since. Until mite-resistant stock becomes readily available, we’re stuck with attempting to manage this parasite with an inadequate range of registered products. Keep in mind that the EPA’s mandate is not to help beekeepers, but rather only to prevent the sale or use of any pesticide deemed unsafe. This puts our industry in a frustrating situation regarding legal control of varroa, or (God forbid) Tropilaelaps.

Our situation is that we are dependent solely upon profit-motivated private enterprises (perhaps using research findings by the USDA or universities) to go through the tedious and expensive process of developing new or updated formulated products, and then “proving” to the EPA that they will not pose “unreasonable risk to the environment.”

Practical application: Due to our relatively small market, there is a lack of economic incentive for companies to bring new, reasonably-priced varroacides to market. This, coupled with the EPA’s high fees, abundance of caution, and hidebound bureaucracy, has not only resulted in a paucity of products on the market, but also with the approval and registration of new efficacious products sometimes lagging behind the mite’s ability to evolve resistance. This is not a criticism of the EPA, but rather a problem that I feel that we beekeepers need to proactively address.

As I explained in my article last month, this situation has sometimes left us in the lurch, forcing beekeepers who want to stay in business to creatively use other products not (perhaps yet) approved by the EPA.

Practical application: My fear is that the evolution of amitraz-resistant mites, coupled with enforcement actions by the EPA, is about to leave us in the lurch again. As someone who has long run a commercial operation without amitraz, I can attest that the few registered products currently on the market (save for perhaps the new VarroxSan) may not be up to the job.

Foreseeing this imminent problem approaching, I proactively (and perhaps naively) approached the EPA [[1]], to see whether they would exempt the natural products oxalic, formic, thymol, and food-grade plant oils from regulation for own use (as did New Zealand), since the Agency had already determined that they posed no unreasonable risk to the environment when applied in beehives. This would have allowed us to experiment and use these substances in more colony-friendly and efficacious ways.

A personal clarification: I’ve recently written about upcoming disruptions to our industry [[2]]. Humans are resistant to change. But sometimes it’s important to anticipate change and be proactive. I want to be clear that I have no criticism of any beekeepers, the EPA, or our industry leaders (and don’t want to get involved in politics), but am only trying to help our commercial and recreational beekeepers navigate through a changing world.

But my doing so upset some beekeepers, since they were hoping that if we just kept quiet, the EPA would keep “looking the other way” about their use of “imported” amitraz, despite the fact the Agency has been making very clear since 2022 that that was not to be the case. I apologize to any whom I may have offended, but in my experience, ignoring an imminent problem will not make it go away.

I’ve been talking with folk from the EPA since the infamous bee kill in Germany from neonicotinoid-treated seeds back in 2008, when some beekeepers started vociferously criticizing the EPA’s regulation of insecticides. Something that the EPA folk continually pointed out to me was the hypocrisy of beekeepers criticizing the Agency for not restricting and regulating pesticide use by others, while acting as scofflaws themselves by using Mavrik and Taktic “off label” in their own hives.

But, apparently sympathetic to us (perhaps due to the paucity of registered efficacious varroacides), the Agency appeared to be willing to turn a blind eye, until they got “the letter” from the Association of American Pesticide Control Officials in 2021.

The gears of enforcement action often move slowly, but after receiving that letter, the EPA acted quickly to fire a shot across the bow in 2022, warning us not by targeting beekeepers directly, but rather by busting one of the “suppliers” –– a California couple engaged in smuggling in amitraz products from Mexico (the Agency also monitored online sales offerings and shut them down). And to be sure that they made their point, instead of charging the couple the maximum penalty of $5000 for a pesticide violation, they charged them with conspiracy (although they didn’t yet charge any beekeepers as codefendants) — a violation that carries a maximum penalty of five years in prison and a $250,000 fine.

Despite that warning, beekeeper demand for inexpensive amitraz continued, and others took the risk of being “suppliers.” So the Agency cracked down on another couple in 2023, again charging them with conspiracy. As part of their plea agreement, the defendants agreed that the government could seek the forfeiture of up to $2.2 million in proceeds obtained from the sale of the smuggled goods.

Yet our industry still hungered for unregistered amitraz. So early this year, the Agency again made a show of busting a Central California beekeeper this time –– with a federal grand jury again charging him with conspiring to receive and sell smuggled pesticides into the United States and the unlawful distribution and sale of unregistered pesticides (Figure 1).

Fig.1 A federal grand jury returned a two-count indictment against a beekeeper, charging him with conspiring to receive and sell smuggled pesticides (primarily Taktic and Bovitraz) into the United States and the unlawful distribution and sale of unregistered pesticides [[3]]. An investigation and indictment such as this would have been in the works for some time.

Practical application: The EPA’s been ramping up enforcement action over the past couple of years. Beekeepers had better be thinking about their Plan B if the “normal” supply of amitraz dries up.

Update:  As of September, the EPA has stepped up their enforcement actions.

As far as the EPA is concerned, with their recent registration of Amiflex, there are now two approved amitraz products available to beekeepers, and they made clear in their recent Advisory that if a beekeeper wishes to use amitraz to control varroa, they must use a registered product.

Commercial beekeepers point out that any product applied within the confines of a beehive would exhibit minimal risk to “the environment.” However, the EPA and FDA are justifiably concerned about beekeeper use of unregistered amitraz, since amitraz can indeed potentially pose “unreasonable risk to man,” specifically those handling the raw product, or consumers of honey. Amitraz has the potential to increase reproductive, developmental, and neurological toxicity risks to the general population. The Agency is also concerned that employees handling unapproved amitraz on a long-term basis may increase their risk of cancer. The EPA and FDA are both likely concerned that as mites develop resistance, beekeepers may be tempted to “ramp up the dose,” which could lead to increased levels in honey.

So why question the EPA about clarification?

First a full disclosure: I am not in the least bit critical of beekeepers using amitraz, and have only asked the EPA for clarification regarding the natural products, since the last time that mites developed resistance to a miticide, our industry got left out to dry. Most of my commercial friends have long depended upon Taktic. But several of them have reached out to me in recent years for information on how my sons and I manage to control varroa without amitraz, since that product was no longer doing the trick for them (as well as wanting to get into compliance).

There are several reasons that I started asking the EPA for clarification:

1. I foresaw that beekeepers who have long been accustomed to depending upon Taktic or Bovitraz might see the supply dry up (it looks like this may now be happening).
2. And due to varroa finally developing resistance to amitraz, they were going to need to shift to alternative treatments for mite management anyway.
3. I’m distressed that oxalic acid is not yet registered for use in California [[4]].
4. There is a paucity of registered efficacious thymol and formic products on the market.
5. I personally want to be able to legally use oxalic acid, formic acid, and thymol in my hives using newer and more efficacious application methods than the currently registered products.
6. In my reading of FIFRA, it appeared that the EPA, under FIFRA, should exempt those natural substances from registration, since they had already concluded that they posed no unreasonable risk to the environment.

Practical application: Tropilaelaps is knocking on our door, and we have no products registered for its control. The synthetic miticides appear to be ineffective. Dr. Ramsey has found that formic acid can be efficacious, and I have thymol blocks on the way for testing. If tropi does arrive, we may not have time for a potential registrant to experiment and develop a product, and then go through EPA’s lengthy registration process. I’d hate to get caught with our pants down!

Our right to use products that do not pose risk to the environment

The EPA is strongly pushing agriculturalists to shift toward naturally-derived biopestides and their kin. Since the Agency has already made clear in writing that the application of oxalic acid, formic acid, or thymol in beehives poses no unreasonable risk to the environment, and since those substances are readily available over the counter for everyday use by any homeowner, one could justifiably argue that we beekeepers have the right to use them in our hives.

If a law is unreasonable, people tend to disrespect it. To some of us, the EPA appears to be acting unreasonably regarding our use of these natural, safe (as far as risk to the environment or honey consumer), and inexpensive substances in our hives for varroa management. Thus, I felt that it was in the interest of our industry to formally ask the Agency whether they were exempt from regulation.

In their recent Advisory, the Agency made clear that they were exempting “own use” of them, but they unfortunately left a number of other important questions unanswered, especially with regard to use by commercial beekeepers. Thus I asked our national organizations to formally present some questions to the Agency for clarification.

Our national organizations

I was of course disappointed that our national organizations declined to do so. When I explained to the Office of Pesticide Programs that they were hesitant, I received the friendly reply:

Thanks for reaching out. The Biopesticides and Pollution Prevention Division is the appropriate division to address any follow-up related to the recent beekeeping advisory. There is no “poking the bear” on our end — we are open to hearing feedback, but per [x’s] email, we are looking to the industry associations to consolidate any questions/feedback they are hearing from the industry and provide input on any potential next steps.

The EPA then invited the officers of the ABF and AHPA to an online meeting (from which I and Board members were excluded).

Practical application: As a federal agency, the EPA can be expected to give friendly replies, without clearly answering hard questions. So if you want answers as to what you are “allowed to do” regarding the use of generic oxalic, formic, or thymol, you apparently need to have your “industry association” present the questions to EPA or your State Lead Agency.

So please do not ask me –– contact your association of choice.

Advice from an Australian Secretary of Agriculture

A number of years ago, I was invited to a meeting that a group of Australian beekeepers were having with their Secretary of Agriculture (Figure 2). He told them that he was listening to them only because a sea change had occurred –– up ‘til that point he likened beekeepers to a “herd of cats,” with individuals and little groups approaching the agency with different (and sometimes conflicting) requests. He explained that this allows any governmental official to ignore them. But he told us that on that day he saw all the beekeepers in his state marching in the same direction like a herd of cattle –– resulting in him paying attention to them.

Fig. 2 A typical Aussie apiary in 2010 –– three deeps with a single brood chamber below an excluder. Every week or so, the top super was removed and taken for extraction, with a returning “sticky” then placed under the remaining lower super.

The EPA hears from many individuals and groups, such as farmers, ranchers, the Xerces Society, many litigious environmental groups, and beekeepers from various states. As far as with beekeepers, the Agency has apparently decided that they are going to respond only to our two national organizations (which consist of only a limited number of members, with minimal budgets and volunteer leadership).

Practical application: For some reason, beekeepers in general are loathe to support, seriously fund, and organize one national organization to represent us. In the last issue of this Journal [[5]], my friend Charles Linder (a shaker and mover if there ever was one), compared the beekeeping industry’s representation to government agencies to that of other livestock industries. His article was not a criticism of our national organizations (he and I belong to both), nor their volunteer officers (who do yeomen’s work for the benefit of our industry), nor of their many accomplishments, but simply a call to action for us beekeepers to not only join these associations (or better yet, combine them into a single national organization), but to also reach into our pockets and better fund them.

Although these two organizations have memberships responsible for the majority of managed hives in the country, they represent only a tiny fraction of the number of beekeepers in the country. So let’s do a little arithmetic: There are roughly 2.6 million beehives in the U.S. If every beekeeper donated a single dollar per hive each year to a national organization, that would be the sort of serious money to give us clout in the government!

Possible actions to take

It’s not currently clear to me how strongly our two national organizations are going to push the EPA for answers regarding our use of generic natural treatments (and the Agency will likely confuse things by passing the decision to each state anyway).

Democracies work only when we engage in the process –– if we speak up, our elected officials will listen. Similar as to how many states have now legalized the use of cannabis due to activism by the electorate, we can petition our State Lead Agencies to allow us to use generic oxalic, formic, and thymol in our hives.

Practical application: It would greatly help if the EPA would clarify to our State Lead Agencies that they have determined that oxalic, formic, and thymol pose no unreasonable risk to the environment when applied in beehives, and thus could be exempted from regulation by the states.

EPA is understandably uncomfortable with setting a precedent of giving beekeepers a free pass, so the most straightforward solution would be for our national organizations to petition the Agency to add oxalic acid, formic acid, thymol, and food-grade plant essential oils to their Minimal Risk Pesticide list, specifically limited to application in beehives. The key point being that this would not open the door for unrestricted use of other pesticides by other ag groups, since it would limit such Minimal Risk use to a specific application (similar to limiting the use of a rat poison to application within bait stations).

Companies may at any time petition the Agency to add or remove an ingredient from the [Minimum Risk] active or inert ingredient lists under the Administrative Procedure Act, even in the absence of guidance [[6]].

If we could convince the EPA to individually add the pesticides thymol, oxalic,  formic, and food-grade plant oils to the Minimal Risk list, that would open the door for individuals or companies to quickly develop and market inexpensive and efficacious treatments for varroa (and possibly Tropilaelaps if it shows up).

“Generally, we do not review products that claim to meet the criteria set by 40 CFR 152.25(f) for exemption from pesticide regulation for companies planning to market such a product. We also do not provide a label review of such products. The producer is responsible to carefully read the criteria and make an evaluation of how the product meets (or does not meet) the criteria” [[7]].

For example, take a look at how my restrictive state of California exempts from registration such substances as thyme oil, eugenol, or citric acid (Figure 3).

Fig. 3 California’s flow chart to determine exemption from regulation [[8]]. Thyme oil (which can contain up to 80% thymol [[9]]) is already on the list. And why couldn’t formic acid be added to the List if sold with a precautionary label to warn the applicator to wear protective equipment?

If the EPA is not willing to add oxalic, etc., to the List, another option at the federal level would be for the beekeepers to ask their Senators and Representatives to introduce legislation in the upcoming Farm Bill –– specifically an amendment to FIRA to exempt oxalic, formic, thymol, and food-grade plant oils from regulation when applied to beehives.

Practical application: Varroa is continuing to develop resistance to amitraz, and the EPA has been ramping up its enforcement actions against unapproved pesticide imports. Complaining and wishing is not going to cut it –– it’s time for a Plan B! Our industry is going to need to progress to more sustainable ways to deal with varroa –– by shifting to biopesticides and eventually mite-resistant stock. It would be great for beekeepers to be able to do this while being compliant with the law. Clear and unconfusing exemptions for our use of off-the-shelf oxalic, formic, and thymol would really help!

Citations

[1] The Status of Our Industry Regarding Varroa Management Part 3, Reading the Fine Print. ABJ, December 2023.

[2] Welcome to the 4th Agricultural Revolution! ABJ, February 2024.

[3] https://www.justice.gov/usao-edca/pr/stockton-beekeeper-charged-conspiring-receive-and-sell-smuggled-illegal-pesticides

[4] California demands an egregiously-high annual $1500 fee to register a pesticide for sale in the State. The manufacturers choke on that cost (pers comm), and I’ve written our Administrator to beg for help.

[5] What the Bleep Are We Doing?

[6] https://www.epa.gov/minimum-risk-pesticides/minimum-risk-addition-inert-ingredient-or-active-ingredient-exemption

[7] https://www.epa.gov/minimum-risk-pesticides/minimum-risk-pesticide-definition-and-product-confirmation#confirm

[8] https://www.cdpr.ca.gov/docs/registration/sec25/minimum_risk_flowchart.pdf

[9] https://ecommons.cornell.edu/server/api/core/bitstreams/61b06502-19f8-442d-af7e-32377f86608b/content