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Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Rules and Regulations
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impossible for a person to submit documents electronically or receive service electronically, e.g., the person does not have any access to a computer, the person shall so advise OALJ by contacting the Hearing Clerk at 202
5646281. If a person is without access to a computer and must file documents by U.S. Mail, the person shall notify the Hearing Clerk every time it files a document in such a manner. The address for mailing documents is U.S.
Environmental Protection Agency, Office of Administrative Law Judges, Mail Code 1900R, 1200 Pennsylvania Ave. NW, Washington, DC 20460.
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178 and above, 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 nonCBI copy of your objection or hearing request, identified by docket ID number EPAHQOPP20210523, using the Federal eRulemaking Portal at http
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.
If you would like to submit CBI with your hearing request, please first contact the Pesticide Re-Evaluation Division by telephone, 7033470206, or by email address: OPPChlorpyrifosInquiries@
epa.gov. Do not submit CBI to EPA
through the Federal eRulemaking Portal or email.
D. What can I do if I want the Agency to maintain a tolerance that the Agency has revoked?
Any affected party has 60 days from the date of publication of this order to file objections to any aspect of this order with EPA and to request an evidentiary hearing on those objections 21 U.S.C.
346ag2. A person may raise objections without requesting a hearing.
The objections submitted must specify the provisions of the regulation deemed objectionable and the grounds for the objection 40 CFR 178.25. While 40 CFR 180.33i indicates a fee is due with each objection, EPA currently cannot collect such fees per 21 U.S.C.
346am3. If a hearing is requested, the objections must include a statement of the factual issues on which a hearing is requested, the requestors contentions on such issues, and a summary of any evidence relied upon by the objector 40
CFR 178.27.

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Although any person may file an objection, EPA will not consider any legal or factual issue presented in objections, if that issue could reasonably have been raised earlier in the Agencys review of chlorpyrifos relative to this petition. Similarly, if you fail to file an objection to an issue resolved in the final rule within the time period specified, you will have waived the right to challenge the final rules resolution of that issue 40 CFR
178.30a. After the specified time, issues resolved in the final rule cannot be raised again in any subsequent proceedings on this rule. See Nader v EPA, 859 F.2d 747 9th Cir. 1988, cert denied 490 U.S. 1931 1989.
EPA will review any objections and hearing requests in accordance with 40
CFR 178.30, and will publish its determination with respect to each in the Federal Register. A request for a hearing will be granted only to resolve factual disputes; objections of a purely policy or legal nature will be resolved in the Agencys final order, and will only be subject to judicial review pursuant to 21 U.S.C. 346ah1, 40
CFR 178.20c and 178.32b1. A
hearing will only be held if the Administrator determines that the material submitted shows the following:
1 There is a genuine and substantial issue of fact; 2 There is a reasonable probability that available evidence identified by the requestor would, if established, resolve one or more of such issues in favor of the requestor, taking into account uncontested claims to the contrary; and 3 Resolution of the issues in the manner sought by the requestor would be adequate to justify the action requested 40 CFR 178.30.
You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPAHQ
OPP20210523 in the subject line on the first page of your submission. All requests must be in writing and must be received by the Hearing Clerk as required by 40 CFR part 178 on or before October 29, 2021.
II. Background A. What action is the Agency taking?
EPA is revoking all tolerances for residues of chlorpyrifos. In 2007, the Pesticide Action Network North America PANNA and the Natural Resources Defense Council NRDC filed a petition with EPA under section 408d of the Federal Food, Drug, and Cosmetic Act FFDCA, 21 U.S.C.
346ad, requesting that EPA revoke all
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chlorpyrifos tolerances. Ref. 1. In an April 29, 2021 decision concerning the Agencys orders denying that 2007
Petition and the subsequent objections to that denial, the Ninth Circuit ordered EPA to 1 grant the 2007 Petition; 2
issue a final regulation within 60 days following issuance of the mandate that either a revokes all chlorpyrifos tolerances or b modifies chlorpyrifos tolerances and simultaneously certifies that, with the tolerances so modified, the EPA has determined that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information, including for infants and children; and 3 modify or cancel related FIFRA registrations for food use in a timely fashion consistent with the requirements of 21 U.S.C.
346aa1. League of United Latin Am.
Citizens v. Regan, 996 F.3d 673 9th Cir.
2021 the LULAC decision.
In todays action, EPA is granting the 2007 Petition, which requested revocation of the tolerances. While EPA
previously responded to and denied the individual claims in the original petition, the Court found EPAs denial, at least with regard to the issues raised in the litigation, to be unsupported by the record before the Court and ordered EPA to grant the 2007 Petition and issue a final rule revoking or modifying tolerances. EPA is granting the petition by granting the relief sought by the petition, i.e., the revocation of the chlorpyrifos tolerances, for the reasons stated in this rulemaking. Moreover, the Court expressly ordered EPA to respond to the petition by issuing a final rule under FFDCA section 408d4Ai.
996 F.3d at 702. That provision of the statute involves the issuance of a final rule without further notice and without further period for public comment. 21 U.S.C. 346ad4Ai.
While the FFDCA provides an option for EPA to respond to a petition with the issuance of a proposed rule under FFDCA section 408d4Aii and thereafter to finalize the proposal, the Court did not direct EPA to exercise its authority to finalize its 2015 proposal to revoke tolerances pursuant to subparagraph d4Aii. Nothing in the Ninth Circuits opinion reflects an expectation that, in complying with the Courts order, EPA would or should finalize the 2015 proposed rule. As such, EPA is viewing this action as independent from the 2015 proposal, and this final rule is based on the Agencys current assessment of the available scientific information, rather
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