EPA Announces Final Cancellation Order and Updates to Existing Stocks Provisions for Several Chlorpyrifos Products

On June 25, 2024, the U.S. Environmental Protection Agency (EPA) announced the issuance of a final cancellation order for Corteva’s chlorpyrifos product “Dursban 50W in Water Soluble Packets” and three Gharda chlorpyrifos products, and an amendment to the existing stocks provisions for two Liberty and three Winfield chlorpyrifos end-use products. EPA also states that it has updated its frequently asked questions about chlorpyrifos.

In a final rule issued in August 2021, EPA revoked all tolerances for chlorpyrifos, which stopped the use of chlorpyrifos on all food and animal feed. EPA took this action in response to an April 2021 order from the U.S. Court of Appeals for the Ninth Circuit for EPA to issue a final rule addressing the use of chlorpyrifos in food or feed crops, without taking public comment or engaging in “further factfinding.”

On November 2, 2023, the U.S. Court of Appeals for the Eighth Circuit vacated EPA’s August 2021 rule revoking all tolerances and reinstated the chlorpyrifos tolerances. On February 5, 2024, EPA issued a Federal Register notice to amend the Code of Federal Regulations to reflect the court’s reinstatement of those tolerances. EPA states that, at this time, all the chlorpyrifos tolerances have been reinstated and are currently in effect.

EPA states it expects to issue a proposed rule later this year to revoke the tolerances associated with all but the 11 food and feed crop uses identified in the 2020 Proposed Interim Decision, whose tolerances could be retained. According to EPA, based on the available data, retaining only the 11 food uses could decrease average annual pounds of chlorpyrifos applied in the United States by 70 percent as compared to historical usage.

Cancellation of Corteva Product and Cancellation of Uses on Gharda Products

The registration for Corteva’s “Dursban 50W in Water Soluble Packets” (Reg. No. 62719-72) is being voluntarily cancelled by the registrant. On June 9, 2023, EPA published the Notice of Receipt of Requests from the registrant voluntarily to cancel this product registration. EPA received five comments on this notice, but EPA states 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 Cancelling Certain Pesticide Registrations and Uses.

Cancellation of Uses for Gharda Products

The products “Chlorpyrifos Technical” (Reg. No. 93182-3), “Pilot 4E Chlorpyrifos Agricultural Insecticide” (Reg. No. 93182-7), and “Pilot 15G Chlorpyrifos Agricultural Insecticide” (Reg. No. 93182-8) are being amended to terminate all food uses, except for uses on 11 crops — alfalfa, apples, asparagus, cherry (tart), citrus, cotton, peach, soybean, strawberry, sugar beet, and wheat (spring and winter). Details on the state restrictions are outlined in the 2020 Proposed Interim Decision with state restrictions noted on product labels. EPA published the Notice of Receipt of Requests for these use cancellations.

Amendment for Existing Stocks for Liberty and Winfield Products

EPA states it is also amending the existing stocks provisions for five chlorpyrifos products that were voluntarily cancelled on August 31, 2022, and May 4, 2023:

• Liberty Chlorpyrifos Bifenthrin (Reg. No. 89168-20) and Liberty Chlorpyrifos 4E (Reg. No. 89168-24) are both chlorpyrifos products from registrant Liberty Crop Protection, LLC., that were voluntarily cancelled in August 2022.

• Tundra Supreme (Reg. No. 1381-243), CPF 4E (Reg. No. 83222-20), and CPF 15G (Reg. No. 83222-34) are all chlorpyrifos products from registrant Winfield Solutions, LLC., that were voluntarily cancelled in May 2023.

EPA notes that the sale and distribution of these products is now permitted until April 30, 2025, and use of existing stocks is now permitted until June 30, 2025. Any distribution, sale, or use of existing stocks of these products is permitted only in accordance with the terms of the final cancellation orders and existing stocks provisions of the final cancellation orders, as amended.

Additional information on the final cancellation orders and existing stocks amendment are available at EPA-HQ-OPP-2022-0223.

Commentary

This is yet another mostly unique consequence of the long and tortured history surrounding EPA’s registration decisions about chlorpyrifos. At long last, many years after a petition to revoke chlorpyrifos food tolerances appeared to be final, the decision to revoke all chlorpyrifos tolerances seemed to be the final chapter in the long trail of EPA decision-making on the pesticide. Not surprisingly, EPA’s decision was challenged, and the consequent decision of the Eighth Circuit left the pesticide is a unique position: the tolerances for the pesticide’s use were reinstated, but meantime the underlying registrations for chlorpyrifos had been voluntarily cancelled.

This clarification about use of existing stocks appears to help clarify that no newly acquired pesticide can be used since there is not registration for use in the United States (export of a cancelled pesticide is allowed under FIFRA subject to various conditions). At the same time, there may be some users who hold “old” stock — material produced before the date a particular product label was cancelled. That should be a relatively narrow universe, however, since the date of cancellation was some time before the associated tolerances were reinstated.

This action by EPA does not allow new production of chlorpyrifos applicable to the now reinstated food crop uses, such products would need a new registration to be issued by EPA. Effectively, this extends the “pipeline provision” — the statute (Federal Food, Drug, and Cosmetic Act (FFDCA)) allows food that was legally treated at the time of use (the pesticide used had a valid registration and an associated tolerance) to continue in commerce for a time period generally expected to be accepted as standard production and distribution timelines. For some crops, such as wheat or corn, these “pipelines” can have an extended period; wheat or corn harvested today may be found in the food supply for five or more years as part of processed food product.

This EPA notice helps clarify that an extended pipeline for treated food would come from products registered before the voluntary cancellations were in effect and requires that use directions on that “old” label be followed. As no new products are allowed to be manufactured, if a grower were to use an existing product as outlined here, it would be advisable to keep documentation of application and compliance with the EPA requirements. This would be helpful in the unlikely case that years down the road there is a question about a food residue that was the result of a legal application of existing stocks.