Updated: Three Dicamba Registrations Vacated by the U.S. Court of Appeals

EPA Offers Clarity to Farmers in Light of Recent Court Vacatur of Dicamba Registrations

Washington, DC (June 8, 2020) — The U.S. Environmental Protection Agency (EPA) issued a key order providing farmers with needed clarity following the Ninth Circuit Court of Appeals’ June 3, 2020 vacatur of three dicamba registrations. Today’s cancellation order 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.

“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.

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.

• 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.

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.

For more information, see "Final Cancellation Order for Three Dicamba Products."

EPA Responds to Ninth Circuit Vacatur of Dicamba Registrations

Washington, DC (June 5, 2020) — U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler released the following statement on the Ninth Circuit Vacatur of dicamba registrations:

“We are disappointed with the decision. The 2020 growing season is well underway and this creates undue burden for our first conservationists – farmers. EPA has been overwhelmed with letters and calls from farmers nationwide since the Court issued its opinion, and these testimonies cite the devastation of this decision on their crops and the threat to America’s food supply. The Court itself noted in this order that it will place a great hardship on America’s farmers. This ruling implicates millions of acres of crops, millions of dollars already spent by farmers, and the food and fiber Americans across the country rely on to feed their families.”

“EPA is assessing all avenues to mitigate the impact of the Court’s decision on farmers.”

Background

The order addresses three registrations containing the active ingredient dicamba (Xtendimax with Vaporgrip Technology (EPA Reg. No. 524-617), Engenia – (EPA Reg. No. 7969-345), FeXapan – (EPA Reg. No. 352-913), which is a valuable pest control tool for America’s farmers.

Secretary Perdue Statement on Ninth Circuit Dicamba Decision

Washington, DC (June 4, 2020) – U.S. Secretary of Agriculture Sonny Perdue issued the following statement on the United States Ninth Circuit Court of Appeals decision to vacate Dicamba registrations:

“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.”

BASF Statement on EPA Action after Ninth Circuit Order

(June 4, 2020) - The Order issued on June 3, 2020, by the United States Court of Appeals for the Ninth Circuit vacating the federal registration of three Dicamba-based herbicides, including Engenia® herbicide, is unprecedented and has the potential to be devastating to tens of thousands of farmers.

These farmers have counted on over-the-top (OTT) applications of dicamba-based products to control resistant weeds across tens of millions of dicamba-tolerant soybean and cotton acres.

We are currently reviewing the Order and are waiting on direction from the U.S. EPA on actions they will take as a result of this Order. Time is of the essence. Farmers have less than a month to protect millions of acres under threat from resistant weeds that could lead to significant revenue loss in an already challenging season.

The EPA followed a science-based approach evaluating and managing ecological risks and balancing agricultural and societal benefits, before it granted the current registration for Engenia. Dicamba is safe when label instructions and use guidelines are followed.

We are assessing all legal options available to challenge this Order. We remain committed to serving our customers with safe and effective crop protection solutions, including Engenia herbicide.

National Corn Growers Association Statement On Dicamba Ruling

St. Louis, MO (June 6, 2020) - The National Corn Growers Association (NCGA) is disappointed by the 9th Circuit’s decision to vacate the Environmental Protection Agency’s federal registrations for three dicamba products, Xtendimax, FeXapan, and Engenia. Farmers rely on EPA’s science-based process for developing appropriate and safe guidelines for the use of crop protection products.

NCGA urges the EPA to immediately appeal this ruling and obtain a stay of this overreaching court order. This decision to remove a weed control option, especially in the middle of the season, adds yet another challenge to an already difficult time and sets a concerning precedent.

Farmers have invested in previously allowed dicamba products, EPA should offer clarifying guidance and allow the use of existing stocks. NCGA is working closely with its partners and the EPA to understand the full ramifications of this decision and what options lie ahead for the future of the product.

Founded in 1957, the National Corn Growers Association represents nearly 40,000 dues-paying corn farmers nationwide and the interests of more than 300,000 growers who contribute through corn checkoff programs in their states. NCGA and its 50 affiliated state associations and checkoff organizations work together to create and increase opportunities for their members and their industry.

Iowa Secretary of Agriculture Mike Naig says Ninth Circuit Court’s decision leaves farmers without a critical weed management tool

Des Moines, IA (June 9, 2020) – Iowa Secretary of Agriculture Mike Naig issued the following statement in response to the Environmental Protection Agency’s (EPA) cancellation order on three dicamba product registrations.

This announcement comes after the U.S. Court of Appeals for the Ninth Circuit vacated the EPA’s dicamba product registration on June 3.

“I’m very disappointed in the Ninth Circuit Court’s decision to overturn the EPA’s approval of dicamba products,” said Secretary Naig. “The Court’s decision has left farmers without a critical weed management tool at the same time they are treating growing crops. I’m grateful that EPA recognized the hardship this places on our farmers and issued an order allowing them to use existing stocks to finish out the 2020 growing season.”

The EPA’s order addresses the sale, distribution and use of existing stocks of 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.

Dicamba is an important weed management tool that Iowa farmers use to protect their crops against water hemp, a weed commonly found in Iowa fields. Iowa State University has provided a list of alternative herbicide products farmers can use this growing season. Farmers can also consult with their ag retailer or supplier to identify additional weed management solutions. More details about the EPA’s regulatory guidance can be found at epa.gov.

Led by Secretary Mike Naig, the Department of Agriculture and Land Stewardship serves the rural and urban residents that call Iowa home. Through its 12 diverse bureaus, the Department ensures animal health, food safety and consumer protection. It also promotes conservation efforts to preserve our land for the next generation. Learn more at iowaagriculture.gov.

Nebraska Department of Agriculture Director Wellman Comments On Dicamba Ruling

Lincoln, NE (June 6, 2020) - The U.S. Court of Appeals for the Ninth Circuit issued a ruling on June 3 that vacated U.S. Environmental Protection Agency (EPA) registrations for three dicamba herbicides (Xtendimax, FeXapan and Engenia).

It is anticipated that the 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 will continue to allow utilization.

“The Nebraska Department of Agriculture has not issued a stop sale order and will enforce the sales and applications of these products as they are currently registered in Nebraska,” said Director Steve Wellman.

Minnesota Department of Agriculture Announces Changes in Use of Dicamba Herbicide

St. Paul, MN (June 8, 2020) - Upon further review of state law and while awaiting guidance from the U.S. Environmental Protection Agency on the ruling of the 9th U.S. Circuit Court of Appeals regarding dicamba products, the Minnesota Department of Agriculture will continue operating under existing pesticide program authorities. According to Minnesota law, an unregistered pesticide previously registered in the state may be used following the cancellation of the registration of the pesticide.

At this time Minnesota farmers can use XtendiMax with VaporGrip Technology (EPA Reg. No. 524-617), Engenia Herbicide (EPA Reg. No. 7969-345), and DuPont FeXapan with VaporGrip Technology (EPA Reg. No. 352-913) while following all federal and Minnesota label requirements. (Tavium Plus VaporGrip Technology (EPA Reg. No. 100-1623) was not part of the two-year federal registration and can still be used according to the label). The Department does not anticipate taking enforcement action against those who continue to appropriately use these products. This may change at any time pending additional guidance from U.S. Environmental Protection Agency.

“The Circuit Court of Appeals decision to revoke the use of these products was, unfortunately, very untimely for our farmers as many had already purchased the herbicide for this growing season,” said Minnesota Agriculture Commissioner Thom Petersen. “Timing is critical for farmers to apply the products and our further interpretation of Minnesota law allows us to use these products.”

As a reminder, all dicamba pesticide applicators in Minnesota must follow use instructions on the product label including the timing restrictions below. Dicamba products cannot be applied to dicamba-tolerant (DT) soybeans in Minnesota if any of the following conditions has occurred. Whichever cutoff time occurs first will determine whether a person can apply a given product to DT soybeans until June 20, 2020.

• Forty-five (45) days after planting.The federal labels for XtendiMax, Engenia, FeXapan, and Tavium prohibit application more than 45 days after planting.
• Once the R1 growth stage begins (beginning bloom). The federal labels for XtendiMax, Engenia, and FeXapan prohibit this. The R1 stage is when at least 1 flower appears on the plant on any node on the main stem.
• After the V4 growth stage. The federal label for Tavium prohibits application after the V4 growth stage.
• After June 20, 2020. The Minnesota Special Local Need (SLN) label, which must be in possession of the applicator at the time of application, prohibits this for all four dicamba products. The SLN labels are available on the MDA website at www.mda.state.mn.us/24c

In Minnesota, all four dicamba products are “Restricted Use Pesticides” for retail sale to, and for use only by, certified applicators who have complete dicamba or auxin-specific training.

For questions, e-mail Josh Stamper at Joshua.Stamper@state.mn.us.

For more information, see "South Dakota Department of Agriculture suspends all sales and application of Dicamba products until further guidance from the EPA."

South Carolina farmers lose use of important herbicides early in the season

Pendleton, SC (June 9, 2020) — One of the most widespread and effective herbicides in South Carolina farmers’ arsenal has been barred from sale early in the growing season.

Officials with the Department of Pesticide Regulation (DPR), a state regulatory agency based at Clemson University, issued a statement this week on the effect a U.S. Ninth Circuit Court of Appeals ruling and subsequent U.S. Environment Protection Agency orders will have on farmers who grow more than half a million acres of cotton and soybeans in the Palmetto State.

The change immediately prohibits sale and distribution of three prevalent dicamba-based herbicides and will prevent their use entirely by the end of July.

The affected pesticides are:

• Xtendimax with Vaporgrip Technology (manufactured by Bayer, EPA Reg. No. 524-6 17)
• Engenia (BASF, EPA Reg. No. 7969-345)
• FeXapan (Corteva, EPA Reg. No. 352-9 13)

“Pesticide dealers in South Carolina who have existing stock of these products should stop all sales immediately and contact their dealer representative to facilitate a return to the registrant or other legal disposal,” the statement read.

“The EPA final cancellation order allows for Commercial and Private applicators who have possession of existing stock of these products to lawfully use them until Friday, July 31, 2020. After this date no legal uses of these products will be permitted and existing stock must be disposed of in a legal manner.”

Steve Cole, director of Clemson’s Regulatory Services unit, said licensed applicators who have stocks of the herbicides on hand and aren’t able to use them before the July 31 deadline should contact their dealers and arrange to have them returned to the registrants through their representatives.

A registered herbicide for more than 50 years, dicamba is a common chemical used to control a broad array of crop-choking weeds. It is one of the few herbicides proven to be effective against pigweed, or Palmer amaranth, which can be devastating to cotton and soybean crops.

“A preponderance of cotton and soybean varieties planted in South Carolina are designed to be resistant to dicamba, so this is a very big and difficult change for producers,” Cole said. “The fact that it comes right in the middle of the planting and growing season is like a double whammy. They’ve already got expensive seed in the ground relying on a herbicide that had been previously approved by the EPA but taken away after the court decision.”

Stakes are high. South Carolina farmers planted 335,000 acres of soybeans and 300,000 acres of cotton last year, more than any crop other than corn, according to the National Agricultural Statistics Service.

The case that led to the Ninth Circuit ruling vacating the three herbicide registrations was filed in 2017 and re-filed and expanded last year. It argued that EPA violated the Federal Insecticide, Fungicide and Rodenticide Act, or FIFRA, when approving the registration.

“It turned out to be the worst possible timing for agriculture, especially in the Southeast,” said Mike Weyman, Regulatory Services deputy director. “It’s not just the manufacturers and distributers, but the farmers. The growing season won’t wait for them to line up a replacement. There are no winners here.”

Illinois Department of Agriculture Statement on Resumed Dicamba Use in Illinois

Springfield, IL (June 9, 2020) - USEPA has issued a cancellation order for Xtendimax, Engenia and FeXapan. On the evening of June 9, 2020 the Illinois Department of Ag issued this guidance which allows for continued use of Xtendimax, Engenia and FeXapan in Illinois under the USEPA cancellation order, effective immediately. Here is the IDA's statement:

The EPA’s final cancellation order outlines limited and specific circumstances under which existing stocks of the three affected dicamba products may be used. Pursuant to the final cancellation order, existing stocks are those which are currently in the United States and which were packaged, labeled, and released for shipment prior to the time of the vacatur order on June 3, 2020.

The EPA’s order permits use of existing stocks of Xtendimax, FeXapan, and Engenia as follows:

• Distribution or sale by the registrant. Distribution or sale by the registrant of all existing stocks is prohibited effective as of the time of the order on June 3, except for distribution for the purposes of proper disposal.
• Distribution or sale by persons other than the registrant. Distribution or sale of existing stocks that are already in the possession of persons other than the registrant is permitted only for the purposes of proper disposal or to facilitate return to the registrant or a registered establishment under contract with the registrant, unless otherwise allowed below.
• Distribution or sale by commercial applicators. Distribution or sale of existing stocks that are in the possession of commercial applicators is permitted.
• Use of existing stocks inconsistent in any respect with the previously-approved labeling accompanying the product is prohibited.

Use of existing stocks of these products must be consistent with the previously-approved labeling. All conditions of IDOA’s registrations under section 24(c) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) remain in effect, including the prohibition of applications when the forecasted temperature exceeds 85 degrees. However, the June 20, 2020 application cutoff date has been extended to June 25, 2020.

As new information becomes available, the Department will provide updates on its website.

The Illinois Fertilizer & Chemical Association (IFCA) is seeking additional guidance from IDA on details regarding farmer pre-pay, if pesticide dealers who are not custom applicators can continue to distribute product inventory, and details on the status of product at distribution centers that is owned by retailers but may not yet be released for shipment. We know these details are very important to our members and we will work hard to get those answers for you as soon as possible.

Please note the June 25 cutoff still requires compliance with the above 85 degree temperature restriction and the additional protections under the Illinois 24c. Please visit our website here for those restrictions.

The plaintiffs that filed the case in the 9th Circuit Federal Court are seeking to quash this cancellation order. We will keep you posted with any developments. IFCA has provided details on the cancellation order in the bullet points above, but if you wish to read the entire USEPA cancellation order and the explanation for it, click here.

IFCA urges continued stewardship and compliance with the label requirements even in these difficult circumstances. Much is at stake beyond dicamba use. The courts are now telling us how to farm, and all pesticide uses are being scrutinized more than ever. There are also millions of acres of soybean and other plants in Illinois that are sensitive to dicamba. We must successfully coexist with other growers and property owners and bring down the number of pesticide misuse complaints.

Thank you for your stewardship and compliance efforts; for questions please contact Jean Payne at (309) 826-3236 or jeanp@ifca.com.

EPA moves quickly to clear way for dicamba use

Federal agency helps ease anxiety on herbicide’s use through July

Manhattan, KS (June 10, 2020) - Farmers and commercial applicators in Kansas and other states will be allowed to use dicamba-based herbicides on soybean and cotton fields through July 31, the net result of a volley of decisions made by a federal appeals court and the Environmental Protection Agency in the past week.

The issue had caused confusion – and likely concern – among the nation’s farmers, many of whom had already planted crops containing genetics that allow the use of dicamba to control weeds in their fields.

The U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, ruled on June 3 that the EPA’s approval of three herbicides -- XtendiMax, Engenia and FeXapan – must be vacated (or ended) immediately. In the United States, it is estimated that those products – which allow ‘over-the-top’ application -- are used to control weeds on an estimated 60 million acres of soybeans and cotton.

“The timing of that announcement could hardly have been worse for farmers,” said Sarah Lancaster, a weed management specialist for K-State Research and Extension. “We’re in a time when a majority of soybeans in Kansas have been planted. With our recent rains and warm temperatures, farmers have been thinking hard about post-emergent herbicide applications, and now is the time to be doing those. We have to stay ahead of pigweeds and other weeds.”

Roger McEowen, a professor of agricultural law and taxation at the Washburn University School of Law, said the case was originally brought to the federal appeals court 15 months ago, but not heard until this spring.

“The court had this case in front of them as of January 2019 and knew that this was a time sensitive matter,” McEowen said. “They knew that farmers would be purchasing these products in a package deal – seeds and the accompanying herbicides – and they’d be paying a hefty tech fee to get all of this in ether late 2019 or early 2020 for use in the 2020 growing season.”

Had the case been heard last fall, which would have been a reasonable timeframe according to McEowen, “farmers would have known where they stood before they made these decisions about what seeds they would use to plant soybeans or cotton this year.”

As a federal court, the Ninth Circuit’s decision was thought to have implications for use in 39 states. However, according to McEowen, the EPA countered with an argument that the court’s decision only made the sale and movement of that product illegal – which is relevant to manufacturers and distributors.

“But they said the court did not make the use of the product illegal under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA),” McEowen said. “That means that use of the product is not illegal when the registration is cancelled, and it’s up to the EPA to decide what to do with it at that point.”

The EPA has since ruled that farmers and commercial applicators can use herbicides currently on the farm or in inventory through July 31. The next few weeks are thought to be a crucial time to fight back weeds trying to overtake farm crops. The EPA noted that farmers can commercial applicators must continue to follow label directions for use of those products.

“Well, you take this to the end of July and the problem is over,” McEowen said. “These herbicides will not be utilized (in Kansas) probably past the Fourth of July, let alone the end of the month.”

Lancaster said another product, Tavium, is not affected by the court’s order. She said that product is a good option for producers who do not currently have the three products vacated by the court.

“The application window for Tavium is limited to the V4 (fourth trifoliolate) growth stage or before, so farmers will have to act quickly with those applications,” said Lancaster, who has written an article in the K-State Department of Agronomy’s e-Update newsletter on that topic.

She noted there are a few other non-dicamba options, namely group 14 or group 15 herbicides (also known as a protoporphyrinogen oxidase, or PPO, inhibitors).

“Any products that contain those herbicides would be good candidates to include in your post-emergent herbicide applications,” said Lancaster, cautioning, however, about those products’ potential to cause crop injury or disrupt future crop rotations.

For more information, farmers should visit with their crop consultant or their local K-State Research and Extension agent.

The weekly e-Update from K-State’s Department of Agronomy is available online.

Dicamba Use in Indiana after June 3, 2020

West Lafayette, IN (June 2020) - On June 3, 2020 the United States Court of Appeals for the Ninth Circuit issued an opinion vacating the federal registrations for the dicamba herbicides Engenia (EPA Reg. No. 7969-345), FeXapan (EPA Reg. No. 352-913), and Xtendimax (EPA Reg. No. 524-617). The federal registration for Tavium (EPA Reg. No. 10-1623) is NOT impacted by this opinion.

View the opinion

Indiana state pesticide law allowed the continued distribution and use of these products in Indiana from June 3, 2020 through June 8, 2020. On June 8, 2020, the U.S. EPA issued a cancellation order for the three impacted dicamba products (view the press release). In summary, that federal cancellation order requires the following:

• Distribution or sale by the registrant. Distribution or sale by the registrant (BASF, Bayer and Corteva) of all existing stocks of the three products listed above is prohibited effective as of the time of the order on June 3, 2020, except for distribution for the purposes of proper disposal.
• Distribution or sale by persons other than the registrant. Distribution or sale of existing stocks of the three products listed above that are already in the possession of persons other than the registrant is permitted only for the purposes of proper disposal or to facilitate return to the registrant or a registered establishment under contract with the registrant, unless otherwise allowed in item #3 or #4 below.
• Distribution or sale by commercial applicators. For the purpose of facilitating use no later than July 31, 2020, distribution or sale of existing stocks of the three products listed above that are in the possession of commercial applicators is permitted.
• Use. Use of existing stocks of products listed above inconsistent with any respect with the previously-approved labeling accompanying the product is prohibited.

In addition to the above listed restrictions in the federal cancellation order, it is important to note that the state registrations for these products require that use may NOT occur after JUNE 20, 2020, regardless of any other state or federal action on these registrations.

Questions may be directed to Dave Scott at scottde@purdue.edu, or 765-494-1593.

For more information, see "Texas Cotton Farmers Adjusting In Wake Of Court Ruling On Dicamba."