2024-02153. Chlorpyrifos; Reinstatement of Tolerances

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

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: [e-mail].

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.

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.

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

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

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

§ 180.342

[Amended]

2. Amend § 180.342, by removing the introductory text.