/>iOn December 2, 2024, the U.S. Environmental Protection Agency (EPA) announced a proposed rule to revoke all tolerances for chlorpyrifos except for those tolerances associated with the 11 food and feed crops that remain registered. 89 Fed. Reg. 99184. EPA is taking this action in response to a decision by the U.S. Court of Appeals for the Eighth Circuit. Comments on the proposed rule are due on or before February 10, 2025. Comments can be submitted to docket ID EPA-HQ-OPP-2024-0431 at www.regulations.gov.
Background
Chlorpyrifos is an organophosphate (OP) insecticide that was used for a large variety of agricultural uses, including soybeans, fruit and nut trees, vegetables, and other row crops, as well as non-food uses. The registration and tolerances for chlorpyrifos have been challenged and addressed in several prior EPA rules and court rulings. This complicated history includes but is not limited to a final rule issued in August 2021, in response to an April 2021 Court Order issued by the U.S. Court of Appeals for the Ninth Circuit, in which EPA revoked all tolerances for chlorpyrifos, effectively stopping the use of chlorpyrifos on all food and animal feed. The Court Order directed EPA to issue within 60 days a final rule addressing the use of chlorpyrifos in food or feed crops, without taking public comment or engaging in “further fact-finding.”
On November 2, 2023, the U.S. Court of Appeals for the Eighth Circuit vacated EPA’s August 2021 rule and reinstated the chlorpyrifos tolerances. In response to the Eighth Circuit ruling, EPA issued a Federal Register notice on February 5, 2024, to amend the Code of Federal Regulations to reflect the Eighth Circuit’s reinstatement of those tolerances. As a result of the Eighth Circuit’s decision, all the chlorpyrifos tolerances have been reinstated and are currently in effect.
Proposed Rule
According to EPA, it has worked with the chlorpyrifos registrants to reduce pesticide exposures further by limiting the registered uses of chlorpyrifos on food to be consistent with the 11 uses referenced by the Eighth Circuit and identified in the 2020 Proposed Interim Registration Review Decision (PID). These 11 food uses are alfalfa, apple, asparagus, cherry (tart), citrus, cotton, peach, soybean, strawberry, sugar beets, and wheat (spring and winter), and are limited to specific states that were assessed in the 2020 PID.
As for the revocation of the remaining tolerances, EPA states this is “not expected to present extraordinary circumstances” since the registrants requested to cancel voluntarily uses associated with these tolerances under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 6(f). One issue that could be affected if these tolerances are revoked is import purposes (i.e.,food treated with chlorpyrifos in another country and imported into the United States). EPA states that if a company wishes for a tolerance to not be cancelled for import purposes, then it should submit comments and “include information demonstrating the need for retaining a specific tolerance for specific imports, even if they have previously provided this information.” EPA states further that “a hypothetical need based on the potential for some commodities containing chlorpyrifos residues to one day be imported into the United States is insufficient.”
With regard to the remaining food uses and related tolerances, EPA states it is currently working on responding to comments it received regarding the 2020 PID and supporting risk assessments as well as preparing an updated human health risk assessment and amended proposed interim registration review decision. EPA plans to issue an amended PID for chlorpyrifos for public comment followed by an Interim Decision (ID) in 2026.
Commentary
This decision by EPA is not surprising given the court opinion that outlined EPA’s own analysis of these remaining uses as “fitting in the risk cup” — that under EPA’s policies and assessment methods, these were uses of chlorpyrifos that complied with the Federal Food, Drug, and Cosmetic Act (FFDCA). Those provisions include explicit consideration of possible exposures to children and the default “extra 10x” safety factor. Those opposed to all uses of the pesticide will likely cite disagreement with EPA’s analysis, especially the decision to not add the extra 10x factor in light of epidemiological data, even though EPA issued the revocation order for all chlorpyrifos tolerances. The important difference is that in its revocation of all tolerances, EPA especially relied on the need to make a decision without time to review fully options in light of another court order imposing a strict deadline for a final decision — and was deciding on the totality of uses at the time it had to comply with that deadline.
The proposed tolerances will now carry over to the new Trump Administration for a final decision. In the earlier term of President Trump, EPA issued decisions allowing continued wide use of chlorpyrifos products — so it is unclear whether EPA in 2025 might consider further uses of the pesticide beyond those allowed in this 2024 proposed rule.
