[EPA Pesticide Update. Posted 12/19/2023]. In light of the November 2, 2023, Eighth Circuit Court of Appeals’ decision to vacate the U.S. Environmental Protection Agency’s (EPA) 2021 final rule effectively prohibiting the use of the pesticide chlorpyrifos on food or feed crops, EPA is issuing an update on its intended next steps.
In April 2021, the Ninth Circuit Court of Appeals ordered EPA to issue a final rule in response to a 2007 petition filed by the Pesticide Action Network North America and the Natural Resources Defense Council. The Ninth Circuit ordered EPA to issue—within 60 days—a that final rule addressing the use of chlorpyrifos in food or feed crops, without taking public comment or engaging in “further fact-finding.”
Accordingly, given the deadline and instruction provided by the Ninth Circuit, on August 30, 2021, EPA issued a final rule revoking all chlorpyrifos tolerances (tolerances are federal rules that allow for a maximum level of pesticide residues on food). The revocation of those tolerances meant that any food or animal feed treated with chlorpyrifos after February 28, 2022 (the date the tolerances expired) could be considered adulterated and thus could not be distributed in interstate commerce.
That tolerance revocation rule was challenged by a chlorpyrifos registrant and several grower groups in the Eighth Circuit. On November 2, 2023, the Eighth Circuit issued a ruling vacating EPA’s final rule and remanding the matter to EPA for further proceedings. The ruling did not include a timeframe or specific instructions for EPA to take a final action on the use of chlorpyrifos in food or feed crops without public comment.
Upon issuance of the Eighth Circuit’s mandate (which has not occurred as of the date of this update), all chlorpyrifos tolerances would automatically be in effect once again. In conformance with the Eighth Circuit’s ruling and after issuance of the mandate, EPA intends to issue a notice correcting the Code of Federal Regulations to reflect the court’s reinstatement of chlorpyrifos tolerances.
The Eighth Circuit’s decision stated that EPA should have considered modification of tolerances in addition to complete revocation and noted that the Agency had “identified 11 specific candidates” of food and feed crop uses whose tolerances could be so modified in a Preliminary Interim Decision EPA issued in 2020. Consequently, the Agency expects to expeditiously propose a new rule to revoke the tolerances associated with all but the 11 uses referenced by the court. These uses may be found in the December 2020 Chlorpyrifos Proposed Interim Decision. Prior to the 2021 tolerance revocation, these uses represented about 55% of the total chlorpyrifos usage (average pounds applied) on agricultural commodities between 2014-2018.
EPA is also engaged in discussions with the registrants to further reduce exposures associated with the 11 uses of chlorpyrifos that were referenced by the Eighth Circuit, a process that will also include taking into account the 2020 draft document and public comments received thereto. This approach would allow use on alfalfa, apple, asparagus, cherry (tart), citrus, cotton, peach, soybean, strawberry, sugar beet, wheat (spring), and wheat (winter) with potential additional restrictions for geographic location, rate of application, farmworker and other vulnerable populations, and vulnerable species and their habitats that may be needed to address safety of the tolerances.
In addition, chlorpyrifos is currently under registration review and the Agency continues to work to implement the National Marine Fisheries Service’s 2022 Biological Opinion on chlorpyrifos, diazinon, and malathion. EPA will continue to work to protect farmworkers, endangered species and their habitats, and the nation’s most vulnerable populations (including children) through its ongoing registration review and Endangered Species Act processes for chlorpyrifos uses.
At this time, final cancelation orders, including their terms for existing stocks of products subject to those cancelation orders and related return programs for chlorpyrifos products, remain in place, unless and until amended by EPA.
EPA will continue to keep the public updated as it evaluates and takes any actions related to chlorpyrifos pesticide use.
Find more information about chlorpyrifos on the EPA website.
On November 3, 2023, the Eighth Circuit Court of Appeals issued a ruling that vacated EPA’s ban of the insecticide chlorpyrifos, ruling that the agency’s actions were “arbitrary and capricious.” However, UNTIL THE EIGHTH COURT OF APPEALS ISSUES ITS MANDATE, the tolerances remain revoked, any applications of chlorpyrifos made to food will render any food so treated adulterated and unable to be distributed in interstate commerce. As of publication, the Eighth Court of Appeals has NOT issued its mandate, and the food tolerances for chlorpyrifos were checked and remain revoked; see https://www.ecfr.gov/current/title-40/chapter-I/subchapter-E/part-180/subpart-C/section-180.342 (date accessed 12/19/2023).
AND, once EPA reestablishes new tolerances for chlorpyrifos by publishing them in the Federal Register at Section 180.342, growers may resume use of chlorpyrifos only on those crops with newly-established tolerances. Based on EPA’s post above, we could anticipate that tolerances will be reestablished for the 11 crops cited above, i.e., alfalfa, apple, asparagus, cherry (tart), citrus, cotton, peach, soybean, strawberry, sugar beet, wheat (spring), and wheat (winter).
The tolerance rule issued on August 30, 2021, does NOT prohibit sale and distribution of registered pesticide products. However, sale and distribution of chlorpyrifos products labeled for use on food crops would be considered misbranded UNTIL the EIGHTH COURT OF APPEALS ISSUES ITS MANDATE. Non-agricultural, non-food uses of chlorpyrifos remain in the United States. EPA’s registration review of chlorpyrifos is due in 2022.
Rutgers NJAES will continue to update growers on the status of chlorpyrifos. Please contact Pat Hastings at 848-932-0176 or by email at firstname.lastname@example.org with questions.