EPA allows dicamba use through July 31 as states explore licensing of products
The Environmental Protection Agency said it will authorize the use of dicamba, an herbicide, through July 31 even though the Ninth Circuit Court of Appeals on June 3 vacated three dicamba registrations.
The EPA also released a cancellation order that outlines limited and specific circumstances under which existing stocks of the three affected dicamba products 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,” EPA said in a news release.
“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. “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 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, Wheeler said.
• The order addresses sale, distribution, and use of existing stocks of the three affected dicamba products — XtendiMax with vapor grip technology, Engenia, and FeXapan.
• Distribution or sale by any person is generally prohibited except for ensuring proper disposal or return to the registrant.
• 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.
Sen. Chuck Grassley, R-Iowa, told reporters he wonders why EPA didn’t “follow the law in the first place,” meaning when EPA approved the registrations. Grassley said he wished that EPA would appeal the Ninth Circuit ruling because that court interprets the law liberally and its rulings are overturned by the Supreme Court more often than any other court.
Kelo, a South Dakota broadcasting company, said that state governments in Minnesota, Wisconsin, Missouri, Michigan and Iowa have told soybean growers in those states they can still use dicamba.
Andrew Thostenson, a pesticide program specialist at the North Dakota State University Extension Service, told the Red River Farm Network that the situation is not yet settled.
“Once the appeal is in place, it is likely the EPA and registrants will start marshaling their arguments and taking it to a higher court,” Thostenson said. “I think it will be important for people to watch what the state departments of agriculture do on this for the next few days.”
Red River, a radio network, said Thostenson noted one especially interesting thing from the ruling. “The EPA and registrants actually asked the court for some flexibility if the ruling went against them, and the court said we hear you, but the potential damage to the environment is such that we must act. The court usually requires 60 days to respond. The EPA uses that time to file an appeal and work through the problems. This happened with chlorpyrifos, but that didn’t happen in this situation.”
In the meantime, NDSU Extension is putting together guidelines on how to manage weeds without using dicamba, which should be available soon, Thostenson said. “There aren’t a lot of good alternatives for farmers, especially if you haven’t been able to use a pre-herbicide and that herbicide hasn’t been properly activated. It’s a very tough situation farmers are facing right now.”
North Dakota Agriculture Commissioner Doug Goehring said his department is reviewing how the decision will affect the 24c Special Local Needs (SLN) label for XtendiMax, FeXapan and Engenia, products used in over-the-top applications on dicamba-tolerant soybeans.
“The recent unprecedented court decision to vacate the registrations of XtendiMax, FeXapan and Engenia has struck a crushing blow to farmers across the country. While the court’s decision affected the federal registration of these products, it made no mention of state registrations,” Goehring said. “At this time, the EPA has not directed the state to cancel its state registrations of XtendiMax, FeXapan and Engenia. NDDA does not enforce violations of the federal registrations of these three products. We’re going to take whatever actions we can as a state to give our farmers an opportunity to manage their fields and utilize the product that is out there.”
Applicators should monitor developments very closely as the registration status of these products is subject to change, Goehring added. ❖
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