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In re Bayer Cropscience LP

Case Number:FIFRA Appeal No. 16-01
ELR Citation:47 ELR 41392

The Environmental Protection Agency’s Pesticide Program Office (“Pesticide Program” or “Program”) issued a cancellation notice for flubendiamide, a pesticide conditionally registered in 2008 and 2009 for sale, distribution, and use under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136-136y. The Pesticide Program asserts that flubendiamide’s registrants, Bayer CropScience LP (“Bayer”) and Nichino America, Inc. (“Nichino”), refused to comply with a key condition of their registrations. That condition, which Bayer and Nichino had negotiated and agreed to in writing, requires them to initiate termination of their registrations by requesting voluntary cancellation if the Pesticide Program concludes that flubendiamide causes unreasonable adverse effects on the environment. Bayer and Nichino object, arguing that, (1) the termination condition is unlawful; (2) in any event, they did not violate that condition because the Pesticide Program did not fulfill its obligations under the registrations; and (3) the Pesticide Program’s determination prohibiting the continued sale and use of existing stocks of the canceled pesticide is flawed. They contend that before flubendiamide may be removed from the market they are entitled to a full cancellation hearing on the question of whether flubendiamide causes unreasonable adverse effects.

HELD: Bayer and Nichino’s flubendiamide registrations are canceled. With one exception, the Board upholds the Pesticide Program’s determination on the disposition of existing stocks of the canceled flubendiamide products.