Generally, it is a violation of FIFRA Section 12(a)(2)(G), Tex. Agric. Code §76.116, and 4 Texas Administrative Code (4 TAC) §7.71 to use, or cause to be used, a pesticide in a manner inconsistent with its label. Exceptions to these regulations are found in FIFRA 2(ee)(1-4).

Written recommendations under these exceptions are generally referred to as "Section 2(ee)"  recommendations.

 

                Section 2(ee) Recommendation 

Section 2(ee) of FIFRA describes some exceptions to the FIFRA definition of “using a pesticide inconsistent with its labeling”. In other words, this provision presents special circumstances where it is permissible to use a pesticide in a manner for which it is not specifically labeled. These uses include: 

• Applying a pesticide at any dosage, concentration, or frequency less than specified on the label, unless prohibited by the label. However, Section 2(ee) cannot be used to increase the dosage, concentration or frequency of an application, nor can it be used to decrease the preharvest interval. 

 

• Applying a pesticide against any target pest not specified on the labeling, to a crop, animal, or site on the label, unless the label only allows use for control of labeled pests. 

 

• Employing any method of application not prohibited by the labeling, unless the label states that the product may be applied only by the methods specified on the label. For example, a Section 2(ee) recommendation cannot add a method of application such as chemigation or aerial application if the label specifies only ground applications. 

 

• Mixing a pesticide or pesticides with a fertilizer, when such a mixture is not prohibited by the labeling. 

 

FIFRA Section 2(ee) recommendations cannot be used for antimicrobial pesticides targeted against human pathogens. (40 CFR 168.22(b)(5)). 

 

If the crop or site is on the label and the pesticide will control the target pest, and the recommended use is not prohibited by the label, then a recommendation allowed by Section 2(ee) could be useful. Though not required by FIFRA, a pesticide registrant may produce a 2(ee) recommendation bulletin and may request EPA to add the pest to their Section 3 label.

 

Policy

The Texas Department of Agriculture will issue advisory approvals of Section 2(ee) recommendations in printed form for distribution in Texas subject to the following conditions:

1. The recommendation(s) must comply with all applicable provisions of Section 2(ee)(1-4) of FIFRA as amended, Section 76.046(c)(4) of the Texas Pesticide Law and Section 7.10(g) of the Texas Pesticide Regulations, EPA PR Notice 82-1 and FIFRA Compliance Program Policy No. 2.1.

 

2. Recommendations(s) in printed form shall be distributed as "Product Information Bulletin(s)", "Pesticide Fact Sheet(s)": etc. Such bulletins, fact sheets, etc., shall not be referred to as being labels, labeling or supplemental label.

 

3. The following disclaimer must appear on all FIFRA Section 2(ee) literature (except media advertisements): "This recommendation is made as permitted under FIFRA Section 2(ee) and has not been submitted to or approved by the EPA".

 

4. FIFRA Section 2(ee) Recommendations must not be attached to the product container or placed in the container shipment box or accompany the product at any time.

 

5. FIFRA Section 2(ee) literature for a product may be disseminated at retail outlets as counter cards, tear-off pads of materials and other methods of distributions provided the provisions of (3) and (4) above are met.

 

6. All FIFRA Section 2(ee) Recommendations proposed for distribution in Texas in printed form must state that the 2(ee) recommendation is for use and distribution in Texas only.   The statement: “FOR USE AND DISTRIBUTION IN THE STATE OF TEXAS ONLY” is preferred, but any reasonable statement indicating the 2ee is for Texas is acceptable. Please Note that no other states can be listed on the recommendation, ONLY Texas.

 

7. The Texas Department of Agriculture reserves the right to require efficacy data in support of FIFRA Section 2(ee) recommendation that will be distributed in printed form.

 

8. All FIFRA Section 2(ee) Recommendations proposed for distribution in Texas in printed form must show an expiration date. The maximum time allowed prior to renewal is 3 full years plus the remainder of the current year (for example, if today is July 30, 2017, then the latest expiration date allowed would be December 31, 2020).

 

Section 2(ee) recommendations that have received advisory approvals from the department will be presumed by the department to be in compliance with Tex. Agric. Code §76.116, and 4 TAC §7.71 and will further be presumed not to be a "label" or "supplemental label" subject to the department's pesticide labeling requirements. Any changes to the Section 2(ee) recommendation after approval will cancel the notification. Those not receiving an advisory approval from the department will bear the risk of being found in violation of Tex. Agric. Code §76.116, and 4 TAC §7.71 and/or laws and regulations regarding pesticide registration and labeling.

 

Check List

Please use this checklist to ensure you are sending all the necessary information and documents for each FIFRA 2(ee) Recommendation. 

1. Pesticide Registration 2(ee) Product Use Recommendation Form PR-202, instructions. 

2. 2(ee) Recommendation Sheet  

3. Section 3 Product Label for each product included in the 2ee use Recommendation

4. Safety Data Sheet(s)/(SDS) for each product included in the 2ee use Recommendation

 

How to Submit 2(ee) Recommendation(s)