[Federal Register Volume 87, Number 168 (Wednesday, August 31, 2022)]
[Notices]
[Pages 53471-53473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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: 
[email protected].

ADDRESSES: The docket for this action, identified under docket 
identification (ID) number EPA-HQ-OPP-2022-0223, is available online at 
https://www.regulations.gov. Additional instructions on visiting the 
docket, along with more information about dockets generally, is 
available at https://www.epa.gov/dockets. For the latest status 
information on EPA/DC services and docket access, visit https://www.epa.gov/dockets.

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
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------


[[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.
------------------------------------------------------------------------

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]
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