Dicamba

June 3: Effective Date of Court Decision. Opinion released from US 9th Circuit Court of Appeals Vacated EPA’s pesticide registrations containing the active ingredient dicamba: Xtendimax with Vaporgrip Technology (EPA Reg. No. 524-617); Engenia – (EPA Reg. No. 7969-345); and FeXapan – (EPA Reg. No. 352-913) after finding EPA violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) when it issued conditional registrations for these products in 2018.
 
Tavium®, a pre-mix of dicamba and S-metolachlor is an additional herbicide labeled in 2019 for use in Roundup Ready 2 Xtend® soybean. When the US EPA granted the re-approval of the conditional registration for dicamba products (XtendiMax®, FeXapan® and Engenia®), Tavium® herbicide was not yet registered. For this reason, Tavium® was not part of the court order, and it is still legal to apply according to the label’s directions for use.
 
Dicamba is a valuable pest control tool that farmers nationwide planned to use during the 2020 growing season. Contact the U.S. EPA to ask a question, provide feedback, or report a problem.
 
June 5:  Agricultural Retailers Association (ARA) President and CEO Daren Coppock sent a letter to EPA Administrator regarding the Ninth Circuit vacatur of three dicamba labels. Full Letter
 
June 6: NDA Director Wellman said in press release, “It is anticipated that the US EPA will seek some type of further review, and possibly under emergency circumstances. Therefore, until such legal process is concluded, the Nebraska Department of Agriculture (NDA) will continue to allow utilization of three dicamba products. The NDA has not issued a stop sale order and will enforce the sales and applications of these products as they are currently registered in Nebraska."
 
June 8: The U.S. EPA issued a cancellation order intended to provide additional clarity on product registrations for XtendiMax, Engenia, and FeXapan, following the ruling by the U.S. Ninth Circuit Court of Appeals. The announcement states:

  1. Distribution or sale [of the affected products] by any person is generally prohibited except for ensuring proper disposal or return to the registrant.
  2. Growers and commercial applicators may use existing stocks that were in their possession on June 3, 2020. Such use must be consistent with the product’s previously approved label and may not continue after July 31, 2020.
June 10: NE Dept. of Ag issues Statement: “The Nebraska Department of Agriculture will enforce the sales and applications of these products according to this EPA order [June 8th],” said Director Steve Wellman. The federal guidance provided by EPA supersedes NDA’s statement issued on June 6, 2020.

June 12: BASF, Corteva File Motions to Intervene in Federal Court Case that Vacated Dicamba Registrations. Reported by Successful Farming.

June 16:  EPA had filed a reply with the appellate court asserting that the agency’s decision to allow the use of existing stocks of dicamba was justified and that it has taken “responsible steps” to avoid unregulated and inappropriate use.

In its 29-page court filing, EPA wrote that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) justified its issuance of a cancellation order for the three dicamba herbicides, and that there was “no legal or factual basis” for the environmental petitioners’ allegation that the agency had violated the appellate court’s order banning their use. EPA’s brief said there was “no legal or factual basis for petitioners’ allegation” that EPA violated the court’s order by issuing a 12-page cancellation order on June 8, which it said provided “for a responsible wind-down of existing stocks instead of banning their use immediately and completely…, and addresses only existing stocks left in a regulatory limbo.”

June 19:  US Court of Appeals for the Ninth Circuit denied the petition filed by two environmental groups to immediately ban the application of dicamba.

Quotes

Secretary Perdue’s Statement: “Producers need all the tools in their toolbox to produce the world’s food, fuel, and fiber, and USDA re-affirms its support for EPA’s science-based process for assessing and managing ecological risks, balanced against the agricultural and societal benefits of crop protection tools. USDA stands ready to assist its federal partners in meeting that goal. Farmers across America have spent hard earned money on previously allowed crop protection tools. I encourage the EPA to use any available flexibilities to allow the continued use of already purchased dicamba products, which are a critical tool for American farmers to combat weeds resistant to many other herbicides, in fields that are already planted. Unfortunately, the Ninth Circuit has chosen to eliminate one of those tools.” Press Release

EPA Administrator Andrew Wheeler said: “At the height of the growing season, the court’s decision has threatened the livelihood of our nation’s farmers and the global food supply. Today’s cancellation and existing stocks order is consistent with EPA’s standard practice following registration invalidation, and is designed to advance compliance, ensure regulatory certainty, and to prevent the misuse of existing stocks.” EPA’s media release is here and the full order is here.

Additional Resources

Bayer – XtendiMax Updates  
BASF -  Statement on Dicamba Court Decision 
Syngenta has provided this letter.
The Ohio State University professor and weed science specialist Dr. Mark Loux – Impact and Herbicide Program Adjustments
Iowa State University – Center for Agricultural Law & Taxation Updates
Dicamba Updates in Other States – Seed Today
Nebraska – IANR Cropwatch Updates on Dicamba Ruling
Nebraska - Ag Law Professor on Market Journal Dicamba Update
OSU Extension - What if Engenia®, FeXapan® or Xtendimax® are Not an Option for Soybean Weed Control?
Understanding Registrations Vacated Definition and Why Petitioners Move to Enforce Vacatur JD Supra - Legal Definition and Analysis