[Federal Register Volume 89, Number 24 (Monday, February 5, 2024)]
[Rules and Regulations]
[Pages 7625-7627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02153]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2021-0523; FRL-5993-06-OCSPP]


Chlorpyrifos; Reinstatement of Tolerances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is amending its 
regulations to reflect the current legal status of the chlorpyrifos 
tolerances following a court order vacating the Agency's revocation of 
those tolerances. EPA is issuing this as a final action that is 
effective upon publication since this action simply conforms the 
regulations to reflect the tolerances that have already been legally 
reinstated by the court's order.

DATES: Effective on February 5, 2024.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPP-2021-0523, is available online at 
https://www.regulations.gov. Additional instructions for visiting the 
docket, along with more information about dockets generally, is 
available at https://www.epa.gov/dockets.

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].

SUPPLEMENTARY INFORMATION:

I. Does this action apply to me?

    This action is directed to the public in general. It may be of 
specific interest to persons who are an agricultural producer, food 
manufacturer, or pesticide manufacturer identified under North American 
Industrial Classification System (NAICS) codes 111, 112, 311, and 
32532. The NAICS codes are provided to assist in determining interest. 
However, the Agency has not attempted to describe all the specific 
entities that may be affected by this action.

II. What is the Agency's authority for taking this action?

    EPA is taking this action pursuant to the authority in section 
408(e)(1) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 
U.S.C. 346a(e)(1).

III. What action is the Agency taking?

    EPA is revising the tolerance regulations (40 CFR part 180) to 
reflect the reinstatement of tolerances for chlorpyrifos, in compliance 
with a decision and order dated November 2, 2023, from the U.S. Court 
of Appeals for the Eighth Circuit in the matter of Red River Valley 
Sugarbeet Growers Ass'n v. Regan, 85 F.4th 881 (8th Cir. 2023). 
Specifically, EPA is amending 40 CFR 180.342 to reflect the current 
legal status of the tolerances for chlorpyrifos.

IV. Why is EPA taking this action?

    In April 2021, the U.S. Court of Appeals for the Ninth Circuit 
ordered EPA to issue a final rule either revoking all chlorpyrifos 
tolerances or modifying the chlorpyrifos tolerances, provided EPA could 
make a determination that those modified tolerances met the safety 
standard mandated by the FFDCA. See League of United Latin American 
Citizens, et al. v. Regan, 996 F.3d 673 (9th Cir. 2021). The Ninth 
Circuit ordered EPA to issue that final rule within 60 days of the 
issuance of the mandate.
    As a result of the very short timeframe, EPA found that, based on 
the available data and anticipated exposure from registered uses of 
chlorpyrifos, it could not determine that there was a reasonable 
certainty of no harm from aggregate exposure, including food, drinking 
water, and residential exposure. Consequently, in the Federal Register 
of August 30, 2021 (86 FR 48315; FRL-5993-04-OCSPP), EPA issued a final 
rule amending 40 CFR 180.342 to revoke all tolerances for residues of 
chlorpyrifos. That rule included revocation of tolerances for residues 
of chlorpyrifos on specific food and feed commodities (180.342(a)(1)); 
on all food commodities treated in food handling and food service 
establishments in accordance with prescribed conditions (180.342(a)(2) 
and (a)(3)); and on specific commodities when used under regional 
registrations (180.342(c)). The final rule allowed the tolerances to 
remain in effect for six months, until February 28, 2022, at which time 
the tolerances expired. Gharda Chemicals International, Inc. (Gharda), 
one of the chlorpyrifos registrants, and several grower groups, among 
others, filed objections to the Agency's final rule revoking 
chlorpyrifos tolerances. The Agency denied those objections in an order 
issued in the Federal Register on February 28, 2022 (87 FR 11222 (FRL-
5993-05-OCSPP)).
    Gharda and several grower groups challenged EPA's order denying 
objections and the tolerance revocation rule in the U.S. Court of 
Appeals for the Eighth Circuit. On November 2, 2023, the Eighth Circuit 
issued its decision, vacating EPA's final rule and remanding the matter 
to EPA for further proceedings. No request for rehearing was filed. On 
December 28, 2023, the mandate issued, finalizing the court's judgment, 
and effectuating the vacatur of the Agency's rule revoking tolerances. 
Because the Eighth Circuit vacated EPA's rule revoking chlorpyrifos 
tolerances, those tolerances are legally currently in effect. EPA is 
issuing this final rule to amend the tolerance regulations to reflect 
the current legal status of the tolerances for chlorpyrifos by removing 
the introductory sentence currently in 40 CFR 180.342 that contains the 
revocation statement and expiration date.

[[Page 7626]]

V. Why is this a final rule?

    Under FFDCA section 408(e)(2), 21 U.S.C. 346a(e)(2), EPA must 
provide a period of not less than 60 days for public comment on a 
proposed rule modifying a pesticide tolerance. However, the Agency may 
provide a shorter period for public comment so long as the Agency for 
good cause determines that it would be in the public interest to do so. 
Additionally, section 553 of the Administrative Procedure Act (APA) 
provides that when an agency for good cause finds that notice and 
public comment procedures are impracticable, unnecessary, or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment.
    EPA has determined that there is good cause for issuing this final 
rule without opportunity for notice and comment. The Agency finds that 
notice and comment are unnecessary for these rule amendments under 5 
U.S.C. 553(b) because this ministerial rule does not alter the legal 
status or otherwise effect any substantive change to these tolerances; 
it merely amends the CFR to reflect the legal status of these 
tolerances in light of the decision by the U.S. Court of Appeals for 
the Eighth Circuit. Because the Eighth Circuit vacated EPA's 2021 
revocation rule, these tolerances are currently in effect. The Agency 
lacks discretion to depart from this mandate.

VI. Can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file 
an objection to a final rule issued under FFDCA section 408(e)(1), and 
may also request a hearing on those objections; however, due to the 
ministerial nature of this rule, which is merely amending the 
regulations to reflect the Eighth Circuit's order, EPA notes that it is 
making no substantive determinations about these tolerances and 
therefore any such issues are beyond the scope of this rulemaking. 
Because no relevant issues of material fact exist with respect to the 
issuance of this ministerial final rule, EPA believes that it is 
unlikely that there would be ``reasonable grounds'' for objection or 
basis for an evidentiary hearing under section 408(g) of the FFDCA.
    Any person who wants to file an objection or request a hearing on 
this regulation must do so in accordance with the instructions provided 
in 40 CFR part 178. To ensure proper receipt by EPA, you must identify 
docket ID number EPA-HQ-OPP-2021-0523 in the subject line on the first 
page of your submission. All objections and requests for a hearing must 
be in writing and must be received by the Hearing Clerk on or before 
April 5, 2024. Addresses for mail and hand delivery of objections and 
hearing requests are provided in 40 CFR 178.25(b).
    In addition to filing an objection or hearing request with the 
Hearing Clerk as described in 40 CFR part 178, please submit a copy of 
the filing (excluding any Confidential Business Information (CBI)) for 
inclusion in the public docket. Information not marked confidential 
pursuant to 40 CFR part 2 may be disclosed publicly by EPA without 
prior notice. Submit the non-CBI copy of your objection or hearing 
request, identified by docket ID number EPA-HQ-OPP-2021-0523, by one of 
the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments. Do not submit 
electronically any information you consider to be CBI or other 
information whose disclosure is restricted by statute.
     Mail: OPP Docket, Environmental Protection Agency Docket 
Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 
20460-0001.
     Hand Delivery: To make special arrangements for hand 
delivery or delivery of boxed information, please follow the 
instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets.
    Additional instructions on commenting or visiting the docket, along 
with more information about dockets generally, is available at https://www.epa.gov/dockets.

VII. Statutory and Executive Order Reviews

    This action amends the tolerance regulation for chlorpyrifos to 
reflect the current legal status of those tolerances as reinstated by 
the U.S. Court of Appeals for the Eighth Circuit. As a ministerial 
action, this action is not subject to review by the Office of 
Management and Budget (OMB) under Executive Order 12866, entitled 
Regulatory Planning and Review (58 FR 51735, October 4, 1993), as 
amended by Executive Order 14094, entitled Modernizing Regulatory 
Review (88 FR 21879, April 11, 2023). As a result, this action is not 
subject to Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997), and Executive Order 13211, entitled Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use (66 FR 28355, May 22, 2001).
    In addition, this action is not subject to the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601 et seq.). The RFA applies only to 
rules subject to notice and comment rulemaking requirements under the 
APA, 5 U.S.C. 553, or any other statute. This rule is not subject to 
notice and comment requirements because the Agency has invoked the 
``good cause'' exemption under APA section 553(b) and FFDCA section 
408(e)(2).
    This action does not contain any information collections or impose 
additional burdens that require approval by OMB under the Paperwork 
Reduction Act (PRA) (44 U.S.C. 3501 et seq.). Nor does it require any 
special considerations under Executive Order 12898, entitled Federal 
Actions to Address Environmental Justice in Minority Populations and 
Low-Income Populations (59 FR 7629, February 16, 1994) or Executive 
Order 14096, entitled Revitalizing Our Nation's Commitment to 
Environmental Justice for All (88 FR 25251, April 26, 2023).
    This rule directly regulates growers, food processors, food 
handlers, and food retailers, not States or tribes; nor does this 
action alter the relationships or distribution of power and 
responsibilities established by Congress in the preemption provisions 
of FFDCA section 408(n)(4). As such, the Agency has determined that 
this action will not have a substantial direct effect on States or 
Tribal Governments, on the relationship between the National Government 
and the State or Tribal Governments, or on the distribution of power 
and responsibilities among the various levels of government or between 
the Federal Government and Indian tribes. Thus, the Agency has 
determined that Executive Order 13132, entitled Federalism (64 FR 
43255, August 10, 1999), and Executive Order 13175, entitled 
Consultation and Coordination with Indian Tribal Governments (65 FR 
67249, November 9, 2000), do not apply to this rule. This rule does not 
impose any enforceable duty or contain any unfunded mandate as 
described in the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531-
1538).
    In addition, since this action does not involve any technical 
standards, the National Technology Transfer and Advancement Act (NTTAA) 
section 12(d), 15 U.S.C. 272 note, does not apply to this action.
    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations-and-executive-orders.

[[Page 7627]]

VIII. Congressional Review Act (CRA)

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, 
Agricultural commodities, Pesticides and pests, Reporting and 
recordkeeping requirements.

    Dated: January 30, 2024.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.

    Therefore, for the reasons stated in the preamble, EPA is amending 
40 CFR chapter I as follows:

PART 180--TOLERANCES AND EXEMPTIONS FOR PESTICIDE CHEMICAL RESIDUES 
IN FOOD

0
1. The authority citation for part 180 continues to read as follows:

    Authority:  21 U.S.C. 321(q), 346a and 371.


Sec.  180.342   [Amended]

0
2. Amend Sec.  180.342, by removing the introductory text.

[FR Doc. 2024-02153 Filed 2-2-24; 8:45 am]
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