Notice2022-18838
Cancellation Order for Certain Chlorpyrifos Registrations
Primary source
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Published
August 31, 2022
Effective
August 31, 2022
Issuing agencies
Environmental Protection Agency
Abstract
This notice announces an Environmental Protection Agency (EPA) order for the cancellations, voluntarily requested by the registrants and accepted by the Agency, of the chlorpyrifos products listed in Table 1 of Unit I., pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This cancellation order follows an April 28, 2022, Federal Register Notice of Receipt of requests from the registrants listed in Table 2 of Unit I. to voluntarily cancel these chlorpyrifos product registrations. Any distribution, sale, or use of the products subject to this cancellation order is permitted only in accordance with the terms of this order, including any existing stocks provisions.
Full Text
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<title>Federal Register, Volume 87 Issue 168 (Wednesday, August 31, 2022)</title>
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[Federal Register Volume 87, Number 168 (Wednesday, August 31, 2022)]
[Notices]
[Pages 53471-53473]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-18838]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OPP-2022-0223; FRL-10138-01-OCSPP]
Cancellation Order for Certain Chlorpyrifos Registrations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: This notice announces an Environmental Protection Agency (EPA)
order for the cancellations, voluntarily requested by the registrants
and accepted by the Agency, of the chlorpyrifos products listed in
Table 1 of Unit I., pursuant to the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA). This cancellation order follows an April 28,
2022, Federal Register Notice of Receipt of requests from the
registrants listed in Table 2 of Unit I. to voluntarily cancel these
chlorpyrifos product registrations. Any distribution, sale, or use of
the products subject to this cancellation order is permitted only in
accordance with the terms of this order, including any existing stocks
provisions.
DATES: The cancellations and amendments are effective August 31, 2022.
FOR FURTHER INFORMATION CONTACT: Patricia Biggio, Pesticide Re-
Evaluation Division (7508M), Office of Pesticide Programs,
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
DC 20460-0001; telephone number: 202-566-0700; email address:
<a href="/cdn-cgi/l/email-protection#185748485b7074776a68616a717e776b5176696d716a717d6b587d6879367f776e"><span class="__cf_email__" data-cfemail="b6f9e6e6f5dedad9c4c6cfc4dfd0d9c5ffd8c7c3dfc4dfd3c5f6d3c6d798d1d9c0">[email protected]</span></a>.
ADDRESSES: The docket for this action, identified under docket
identification (ID) number EPA-HQ-OPP-2022-0223, is available online at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Additional instructions on visiting the
docket, along with more information about dockets generally, is
available at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>. For the latest status
information on EPA/DC services and docket access, visit <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
This action is directed to the public in general and may be of
interest to a wide range of stakeholders including environmental, human
health, and agricultural advocates; the chemical industry; pesticide
users; and members of the public interested in the sale, distribution,
or use of pesticides. Since others also may be interested, the Agency
has not attempted to describe all the specific entities that may be
affected by this action.
B. What action is the Agency taking?
This document announces the cancellations, as requested by
registrants, of products registered under FIFRA section 3 (7 U.S.C.
136a). These registrations are listed in sequence by registration
number in Table 1 of this unit.
Table 1--Product Cancellations
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EPA registration No. Company No. Product name Active ingredients
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279-3538............................. 279 Nufos 4E...................... Chlorpyrifos.
279-3581............................. 279 Bolton Insecticide............ Chlorpyrifos & gamma-
Cyhalothrin.
279-9545............................. 279 F9047-2 EC Insecticide........ Chlorpyrifos & Zeta-
Cypermethrin.
279-9572............................. 279 Gat Chlorpyrifos Cs........... Chlorpyrifos.
279-9574............................. 279 Chlorpyrifos 42 CS............ Chlorpyrifos.
499-367.............................. 499 Whitmire PT 275 Dur-O-Cap Chlorpyrifos.
Microencapsulated
Chlorpyrifos.
499-405.............................. 499 Whitmire PT 1920 Total Release Chlorpyrifos.
Insecticide.
499-419.............................. 499 Duration PT 275 MC Chlorpyrifos.
Microencapsulated Dursban
Liquid Concentrate.
53883-264............................ 53883 CSI Chlorpyrifos CS........... Chlorpyrifos.
53883-331............................ 53883 CSI Chlorpyrifos 42 CS Chlorpyrifos.
Insecticide.
53883-355............................ 53883 CSI Chlorpyrifos 20 CS........ Chlorpyrifos.
86363-11............................. 86363 Bifenchlor.................... Bifenthrin &
Chlorpyrifos.
89168-20............................. 89168 Liberty Chlorpyrifos Bifenthrin &
Bifenthrin. Chlorpyrifos.
89168-24............................. 89168 Liberty Chlorpyrifos 4E....... Chlorpyrifos.
89168-47............................. 89168 Liberty Granular Insecticide.. Bifenthrin &
Chlorpyrifos.
89459-69............................. 89459 Equil Pyrifos................. Chlorpyrifos.
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[[Page 53472]]
Table 2--Registrants of Cancelled Products
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Company No. Company name and address
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279........................ FMC Corporation, 2929 Walnut Street,
Philadelphia, PA 19104.
499........................ BASF Corporation, 26 Davis Drive, P.O. Box
13528, Research Triangle Park, NC 27709-
3528.
53883...................... Control Solutions, Inc., 5903 Genoa Red
Bluff Road, Pasadena, TX 77507.
86363...................... Kaizen Agent Name: Lighthouse Product,
Services Technologies, LLC, 2411 S. Bear
Claw Way, Meridian, ID 83642.
89168...................... Liberty Crop Protection, LLC, 1880 Fall
River Dr., #100, Loveland, CO 80538.
89459...................... Central Garden & Pet Company, 1501 East
Woodfield Road, Suite 200W, Schaumburg, IL
60173.
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C. What is the Agency's authority for taking this action?
FIFRA section 6(f)(1), 7 U.S.C. 136d(f)(1), provides that a
registrant of a pesticide product may at any time request that any of
its pesticide registrations or registered uses be cancelled. FIFRA
further provides that, before acting on the request, EPA must publish a
notice of receipt of any such request in the Federal Register.
FIFRA section 6(f)(1)(B), 7 U.S.C. 136d(f)(1)(B), requires that
before acting on a request for voluntary cancellation, EPA must provide
a 30-public comment period on the request for voluntary cancellation or
use termination. Following the public comment period, the EPA
Administrator may approve such a request.
II. Background
A. Brief History
In August 2021, EPA issued a rule revoking chlorpyrifos tolerances
on the grounds that the chlorpyrifos tolerances were not safe (86 FR
48315, August 30, 2021) (FRL-5993-04-OCSPP) publication in the Federal
Register. Pursuant to the procedures set forth in FFDCA section
408(g)(2), objections to, requests for evidentiary hearings on those
objections, and/or requests for stays of the final rule were filed on
or before the close of the objections period on October 29, 2021. On
February 28, 2022, EPA issued an Order denying all objections to,
requests for hearing on those objections, as well as requests for stay
of the August 2021 final rule published in the Federal Register on
February 28, 2022 (87 FR 11222) (FRL-5993-05-OCSPP).
Those tolerances expired on February 28, 2022. Once the tolerances
expired, pesticide products containing chlorpyrifos could no longer be
used on food crops. After EPA alerted registrants of chlorpyrifos
products of the lack of tolerances and the options for their products,
several registrants submitted requests to voluntarily cancel their
chlorpyrifos pesticide products.
In April 2022, the notice of receipt of the request for voluntary
cancellation or use termination related to this action published for
comment in the Federal Register on April 28, 2022 (87 FR 25256) (FRL-
9723-01-OCSPP). The 30-day public comment period closed on May 31,
2022.
B. Summary of Comments Received
During the public comment period, EPA received seven substantive
comments in response to the April 2022 notice of receipt. The comments
can be found in the docket for this action and are briefly summarized
here.
Comments submitted by the Arizona Farm Bureau Federation, the
American Farm Bureau Federation, the Agricultural Retailers
Association, the Cherry Marketing Institute, and a joint comment from
the American Sugar Beet Growers Association, the U.S. Beet Sugar
Association, and the Beet Sugar Development Foundation opposed the
cancellation of the products containing chlorpyrifos due to the
importance of chlorpyrifos for growers. In particular, these commenters
specified concerns that growers will have difficulty protecting their
crops against certain pests without chlorpyrifos and that growers may
use more significant quantities of less-effective products,
contributing to resistance issues. In addition, these commenters make
note of litigation challenging EPA's rule revoking the chlorpyrifos
tolerances that is currently pending in the United States Court of
Appeals for the 8th Circuit, Red River Valley Sugarbeet Growers Ass'n
et al., v. Regan, et al., No. 22-1422 (8th Cir.), and request that EPA
postpone cancellation of chlorpyrifos products until the litigation is
resolved.
C. EPA Response to Comments
EPA is declining to postpone the cancellations requested by the
registrants subject to this cancellation order. Postponing the
cancellations would essentially impose a responsibility on the
registrants subject to this order to retain and maintain their
registrations indefinitely. The resolution and timing of the litigation
is unknown, and retention of the registrations could subject
registrants to additional maintenance fees and responsibilities for
those registrations. See, e.g., 40 CFR part 152, subpart G (registrant
responsibilities); 7 U.S.C. 136a-1(i)(1) (maintenance fee obligations);
7 U.S.C. 136e (production reporting requirements); 7 U.S.C. 136f
(recordkeeping requirements).
EPA also notes that some of the registrations being cancelled in
this Order do not contain labeling bearing food uses, so any outcome of
the litigation is irrelevant. In any event and more importantly, FIFRA
section 6(f) allows a registrant to request voluntary cancellation of a
pesticide product registration at any time for many reasons, including
lack of interest in maintaining the registration or the pesticide no
longer being marketed. EPA cannot compel registrants to maintain a
registration indefinitely if they request to voluntarily cancel it.
Moreover, retention of these registrations will not make chlorpyrifos
products available for use as the commenters desire. The revocation of
the tolerances means that application of chlorpyrifos to food crops
will result in adulterated food. While cancellation of these 16
products does not terminate the last of the chlorpyrifos products
registered in the United States, these products (and other remaining
chlorpyrifos products) cannot be applied to food crops that will be
shipped in interstate commerce.
Finally, these commenters also questioned the Agency's rationale
for revoking all chlorpyrifos tolerances due to the Agency's proposed
mitigations in the Chlorpyrifos Proposed Interim Decision (December 3,
2020). Those comments are challenges to EPA's rule revoking tolerances,
which is being separately litigated and is outside the scope of this
action.
Several commenters highlighted concerns regarding the existing
stocks provisions from the April 2022 notice of receipt that indicated
the Agency did not identify potential risk concerns and anticipated
allowing registrants to sell and distribute existing stocks of these
products for 1 year after publication of the Cancellation Order in the
Federal Register. Earthjustice commented that the existing stocks
language in the April 2022 notice of receipt that would be applicable
to chlorpyrifos products in
[[Page 53473]]
the notice indicates that EPA anticipated allowing registrants to sell
and distribute existing stocks of chlorpyrifos for one year after the
publication of the cancellation order and to allow others to sell,
distribute, and use existing stocks until exhausted. Earthjustice
asserts that EPA cannot allow for existing stocks of chlorpyrifos to be
sold, distributed, or used in this way as a result of the revocation of
all chlorpyrifos tolerances. See the August 30, 2021 (86 FR 48315)
(FRL-5993-04-OCSPP) publication in the Federal Register.
The applicability of the existing stocks language in the April 2022
notice of receipt to chlorpyrifos products was an oversight and is
being corrected in this cancellation order. The existing stocks section
of the April 2022 notice of receipt contained specific language
pertaining to one specific product (not the chlorpyrifos products) and
other language ``for all other voluntary cancellations listed in the
notice.'' 87 FR 25259. That language provided broad existing stocks
provisions due to the Agency's conclusion that there were ``no
significant potential risk concerns associated with those pesticide
products.'' Id. In using somewhat standard language for a voluntary
cancellation notice, EPA failed to specify a different existing stocks
provision for the chlorpyrifos products in the notice, for which
tolerances were revoked due to EPA's conclusion that chlorpyrifos
tolerances were not safe. See 87 FR 11222. FIFRA section 6(a)(1) gives
EPA the discretion to permit the continued sale and use of existing
stocks, where doing so is determined to be consistent with the purposes
of FIFRA. 7 U.S.C. 136d(a)(1). In the case of the chlorpyrifos
registrations subject to this order, without tolerances in place to
cover residues from use of these products, these products may not be
used on food, nor may they be sold or distributed. Allowing for
continued use or sale would not be consistent with FIFRA; therefore,
EPA is not allowing for continued sale, distribution, or use of
chlorpyrifos products listed above.
III. The Cancellation Order
Pursuant to FIFRA section 6(f) (7 U.S.C. 136d(f)(1)), EPA hereby
approves the requested cancellations of the registrations identified in
Table 1 of Unit I. Accordingly, the Agency hereby orders that the
product registrations identified in Table 1 of Unit I. are cancelled.
The cancellations and amendments addressed in this Order are
effective August 31, 2022. Any distribution, sale, or use of existing
stocks of the products identified in Table 1 of Unit I. in a manner
inconsistent with any of the provisions for disposition of existing
stocks set forth in Unit VI. will be a violation of FIFRA.
IV. Provisions for Disposition of Existing Stocks
Existing stocks are those stocks of registered pesticide products
that are currently in the United States and that were packaged,
labeled, and released for shipment prior to the effective date of the
cancellation action. The language regarding the intended disposition of
existing stocks that published in the Federal Register on April 28,
2022 (87 FR 25256) (FRL-9723-01-OCSPP) on page 25259 is not appropriate
for application to the pesticide products subject to this Order.
None of the registrants listed in this order have requested any
continued sale or distribution of existing stocks of the registrations
subject to this cancellation order nor have they requested special
provisions to relabel the products listed in this order. Because of
that and because chlorpyrifos tolerances have been revoked and use of
chlorpyrifos renders food adulterated, all sale, distribution, and use
of the chlorpyrifos products identified in Table 1 of Unit I. is
prohibited, except for export consistent with FIFRA section 17, 7
U.S.C. 136o or for proper disposal.
Dated: August 26, 2022.
Mary Elissa Reaves,
Director, Pesticide Re-Evaluation Division, Office of Pesticide
Programs.
[FR Doc. 2022-18838 Filed 8-30-22; 8:45 am]
BILLING CODE 6560-50-P
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