EPA Issues Final Cancellation Order for Chlorpyrifos Products

On June 25, 2024, the U.S. Environmental Protection Agency (EPA) announced that it issued a final cancellation order for Corteva’s chlorpyrifos product Dursban 50W Water Dissolvable Sachets and three Gharda chlorpyrifos products, as well as a modification to existing inventory provisions for two Liberty chlorpyrifos end-use products and three Winfield chlorpyrifos products. EPA also noted that it has updated its chlorpyrifos FAQ.

In a final rule published in August 2021, EPA revoked all tolerances for chlorpyrifos, effectively ending the use of chlorpyrifos in all food and feed crops. EPA took this action in response to an April 2021 order from the U.S. Court of Appeals for the Ninth Circuit requiring it to issue a final rule regarding the use of chlorpyrifos in food and feed crops without collecting public comment or conducting “further informational research.”

On November 2, 2023, the United States Court of Appeals for the Eighth Circuit vacated EPA’s August 2021 rule revoking all tolerances and reinstated the tolerances for chlorpyrifos. On February 5, 2024, EPA issued a Federal Register Notice of Amendment to the Code of Federal Regulations to Reflect the Court’s Reinstatement of These Tolerances. EPA states that at this time, all tolerances for chlorpyrifos have been reinstated and are currently in effect.

EPA announced that it plans to issue a proposed rule later this year to revoke tolerances for all food and feed uses identified in the 2020 interim proposed decision, except for 11, whose tolerances could be retained. EPA estimates that based on available data, retaining only the 11 food uses could reduce the average annual amount of chlorpyrifos applied in the United States by 70 percent compared to historical use.

Corteva Product Cancellation and Gharda Product Use Cancellation

The registration of Corteva’s Dursban 50W Water Dissolvable Packets (Registration No. 62719-72) is being voluntarily cancelled by the registrant. On June 9, 2023, EPA published the Notice of Receipt of the Registrant’s Requests to Voluntarily Cancel the Registration of this product. EPA received five comments on this notice, but states that the comments did not change its decision to accept the registrant’s voluntary request to cancel this product. The comments are addressed in the Final Cancellation Order for Cancellation of Certain Pesticide Registrations and Uses.

Cancellation of uses of Gharda products

The products “Chlorpyrifos Technical” (Registration No. 93182-3), “Pilot 4E Chlorpyrifos Agricultural Insecticide” (Registration No. 93182-7), and “Pilot 15G Chlorpyrifos Agricultural Insecticide” (Registration No. 93182-8) are being amended to end all food uses except for uses on 11 crops: alfalfa, apples, asparagus, cherries (tart), citrus, cotton, peach, soybeans, strawberries, sugar beets, and wheat (spring and winter). Details of the state restrictions are described in the 2020 Interim Proposed Decision, with state restrictions noted on the product labels. EPA has published notice of receipt of requests to cancel these uses.

Modification of existing stocks for Liberty and Winfield products

EPA says it is also modifying existing stockpile provisions for five chlorpyrifos products that were voluntarily canceled on August 31, 2022, and May 4, 2023:

• Liberty Chlorpyrifos Bifenthrin (Registration No. 89168-20) and Liberty Chlorpyrifos 4E (Registration No. 89168-24) are both chlorpyrifos products from registrant Liberty Crop Protection, LLC., which were voluntarily cancelled in August 2022.
• Tundra Supreme (Registration Number 1381-243), CPF 4E (Registration Number 83222-20), and CPF 15G (Registration Number 83222-34) are all chlorpyrifos products from Registrant Winfield Solutions, LLC., which were voluntarily cancelled in May 2023.

The EPA notes that the sale and distribution of these products is now authorized until April 30, 2025and the use of existing stocks is now authorized up to June 30, 2025Any distribution, sale or use of existing inventory of these products is permitted only in accordance with the terms of the Final Cancellation Orders and the existing inventory provisions of the Final Cancellation Orders, as amended.

Additional information on final cancellation orders and modification of existing stocks is available at EPA-HQ-OPP-2022-0223.

Comment

This is another unique consequence of the long and tortuous history of EPA approval decisions regarding chlorpyrifos. Finally, many years after a petition to revoke chlorpyrifos’ food tolerances appeared to be final, the decision to revoke all chlorpyrifos tolerances appeared to be the latest chapter in EPA’s long series of decisions on the pesticide. Not surprisingly, EPA’s decision was challenged, and the resulting Eighth Circuit decision put the pesticide in a unique position: the pesticide’s use tolerances were reinstated, but in the meantime, the underlying chlorpyrifos registrations were voluntarily revoked.

This clarification on the use of existing stocks appears to help clarify that no newly acquired pesticide can be used since it is not registered in the United States (export of a cancelled pesticide is permitted under FIFRA subject to various conditions). At the same time, some users may hold “old” stocks – material produced before the cancellation date of a particular product’s label. This should be a relatively small universe, however, since the cancellation date predates the reinstatement of associated tolerances by some time.

This EPA action does not permit the production of chlorpyrifos for food crops that are now being reestablished. Such products would require a new registration from EPA. In effect, this extends the “pipeline provision”: the Federal Food, Drug, and Cosmetic Act (FFDCA) allows foods that were legally treated at the time of use (i.e., the pesticide used had a valid registration and associated tolerance) to continue to be marketed for a period of time generally considered acceptable as a standard production and distribution time. For some crops, such as wheat or corn, these “pipelines” may have an extended period; wheat or corn harvested today may remain in the food supply for five years or more as part of processed food products.

This EPA notice clarifies that an expanded pipeline for treated foods would come from products registered before the voluntary cancellations went into effect and requires that the use instructions on this “old” label be followed. Since no new products are permitted to be manufactured, if a producer were to use an existing product as outlined here, it would be advisable to maintain documentation of the application and compliance with EPA requirements. This would be helpful in the unlikely event that, years later, there is a question about a food residue resulting from a legal application of existing inventory.