In response to a federal court’s vacatur of three dicamba registrations on June 3, the U.S. Environmental Protection Agency said in an order growers and commercial applicators may use existing stocks that were in their possession on June 3 and may not continue use after July 31, 2020.
On June 3, 2020, the Ninth Circuit Court of Appeals issued an order vacating 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).
In an order issued Monday evening, EPA Administrator Andrew Wheeler also said the distribution or sale by any person is generally prohibited except for ensuring proper disposal or return to the registrant. Use must be consistent with the product’s previously approved label, EPA stated.
“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,” Wheeler said. “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.”
Dicamba is a valuable pest control tool that farmers nationwide planned to use during the 2020 growing season, and an estimated 60 million acres were planted with resistance to dicamba. Since the court issued its opinion, EPA said it has been “overwhelmed with letters and calls from farmers citing the devastation of this decision on the millions of acres of crops, millions of dollars already invested by farmers and threat to America’s food supply.”
The Agricultural Retailers Assn. (ARA) had urged EPA to appeal the decision and said the latest order from EPA continues to still leave many questions unanswered.
"ARA is concerned with these details, as it appears inconsistent with EPA’s long-standing existing stocks practice following registration invalidation," ARA senior vice president of public policy and counsel Richard Gupton said.
ARA said it is seeking clarification on the impact on agricultural retailers that do not provide commercial application services.
"The current order will create confusion, especially since it is being issued at the end of [June 8], with the June 3, 2020, cutoff date and after many individual states publicly authorized the continued sale and use of these products over the weekend and through [June 8],” Gupton noted.
ARA added that this EPA announcement does not fully address the confusion created by the Ninth Circuit Court decision.
In 2019, a petition was filed in the U.S. Court of Appeals for the Ninth Circuit against EPA for its decision in 2018 to extend the registration of low-volatility dicamba products. The petition was filed by the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network North America.
The petitioners requested that the court vacate the current U.S. registrations of certain low-volatility dicamba products, including XtendiMax. The petitioners claimed that EPA’s 2018 registration decision was based on insufficient evidence and, therefore, violated the Federal Insecticide, Fungicide & Rodenticide Act.
In April 2020, the court heard oral arguments on the petition. EPA defended its science-based registration decision. The court’s June 3 ruling pertains specifically to EPA’s 2018 registration decision, which expires in December 2020. EPA is currently reviewing a new registration for XtendiMax for the 2021 season and beyond. Bayer, one of the makers of the products with dicamba, said it hopes EPA completes the review and issues a new registration by this fall.
“Know that Bayer stands fully behind XtendiMax herbicide. We are proud of our role in bringing innovations like XtendiMax forward to help growers safely, successfully and sustainably protect their crops from weeds. We will continue working with the EPA, growers, academics and others to provide long-term access to this important tool,” Bayer said on a webpage devoted to the legal standing of dicamba.