Jun 15, 2020
Cancellation order identifies use limits for dicamba

On June 8, the U.S. Environmental Protection Agency issued a key order providing farmers with needed clarity following the Ninth Circuit Court of Appeals’ June 3 vacatur of three dicamba registrations.

The cancellation order outlines limited and specific circumstances under which existing stocks of the three affected dicamba products – XtendiMax (from Bayer) with vapor grip technology, Engenia (BASF) and FeXapan (Corteva) — can be used for a limited period of time. EPA’s order will advance protection of public health and the environment by ensuring use of existing stocks follows important application procedures.

“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,” said EPA Administrator Andrew Wheeler in a statement. “(The June 8) 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 order will mitigate some of the devastating economic consequences of the Court’s decision for growers, and particularly rural communities, at a time they are experiencing great stress due to the COVID-19 public health emergency.

Details of the order

EPA’s order addresses sale, distribution, and use of existing stocks of the three affected dicamba products: XtendiMax with vapor grip technology, Engenia, and FeXapan.

  1. Distribution or sale 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, the effective date of the Court decision. Such use must be consistent with the product’s previously approved label, and may not continue after July 31, 2020.

Background

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).

Dicamba is a valuable pest control tool that farmers nationwide planned to use during the 2020 growing season. Since the Court issued its opinion, the agency 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.

Pending motions

On June 12, Corteva and BASF filed motions to intervene in the U.S. Court of Appeals for the Ninth Circuit case challenging the U.S. Environmental Protection Agency (EPA) registration of the dicamba herbicide.

Corteva was not a party to the lawsuit, and until June 3, the case appeared to involve only the XtendiMax registration. The Ninth Circuit Court nevertheless vacated in its June 3 decision the EPA’s registration of XtendiMax and Enginia herbicides, as well as Corteva’s registration for DuPont FeXapan with VaporGrip Technology.

Corteva is seeking to intervene to preserve its rights and to support the rights of customers to use the impacted dicamba weed control technologies.

“We believe dicamba is an effective weed management tool for farmers when used according to the label,” the company said through a statement. “We also seek to preserve the role of the U.S. EPA to administer the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA), including granting or cancelling crop protection product registrations, for the benefit of agriculture and society.”

Similarly, the court’s June 3 decision brought BASF’s product into the case for the first time. BASF has now made the request to intervene after careful consideration of the sudden and severe financial impact vacating the registration has had on farmers during this critical application time, when farmers now have less than a month to protect millions of acres under threat from resistant weeds. The Ninth Circuit’s decision has caused immediate chaos among the agricultural community and threatens the livelihood of countless U.S. farmers. Seeking to make matters worse, the challengers have now asked the Ninth Circuit to undo the EPA’s order which implemented the panel’s decision and addressed the uncertainty it caused. BASF must act to protect its interests and those of its customers.

“Taking this action during the height of the application season gives no regard to the significant investments farmers have made in their businesses and leaves them without viable options for the growing season,” said Paul Rea, Senior Vice President, BASF Agricultural Solutions North America, through a statement. “Farming is difficult even in the best of times and remains challenging. Making this decision now, when weed resistance continues to threaten farming operations, is disastrous for our customers. Farmers have counted on applications of dicamba-based products to control troublesome weeds for decades, and they continue to need these tools now and in the future.”

Environmental watchdog group, the Center for Food Safety, has filed a motion against the EPA for allowing growers to continue use of dicamba through the end of July after the court ruling.

“Trump’s EPA is so rogue it thinks it can blow off a federal court ruling that stops the damaging dicamba spraying in an administrative order,” George Kimbrell, of the Center for Food Safety, lead counsel in the case, said through a statement. “EPA needs a lesson in separation of powers and we’re asking the court to give it to them.”





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