By Dusty Sonnenberg, CCA, Ohio Field Leader: a project of the Ohio Soybean Council and soybean checkoff.
Clarification and further guidance was provided on Monday, June 8th, by the U. S. Environmental Protection Agency (EPA), for farmers and retailers, regarding the use of certain dicamba products that have been in question since June 3rd, when those product’s federal registration was vacated by a federal court. According to the ruling, The EPA received a large amount of unsolicited comments regarding the courts decision and resulting impacts on agriculture.
Last Wednesday, the Ninth Circuit Court of Appeals vacated the product registration of three dicamba-based products, incuding: Monsanto’s XtendiMax, DuPont’s FeXapan, and BASF’s Engenia; as conditional use pesticides for post-emergent applications. The court held that when the EPA conditionally amend the registrations for an additional two years, the process they used violated the provisions of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”).
“Learning of the Ninth Circuit’s ruling was particularly disappointing in the midst of the growing season, but the Ohio Soybean Association (OSA) members who reached out to their representatives in Congress were critical in getting this clarification from the EPA,” said Ryan Rhoades, OSA president and Marion County soybean farmer. “We thank the EPA for providing clarity on this matter and the Ohio Department of Agriculture for working to address the issue in Ohio. We also appreciate the work of our partners at the Ohio AgriBusiness Association and the Ohio Farm Bureau.”
To appropriately amend and extend the dicamba registrations, FIFRA requires the EPA to determine that the applicant had submitted satisfactory data related to the proposed additional use of the pesticide. The EPA also needed to conclude that the approval would not significantly increase the risk of unreasonable adverse effects on the environment. The court determined that the EPA erred in making the conclusion that amending the dicamba registrations for two years would not cause unreasonable adverse effects on the environment when it substantially understated several risks of dicamba registration. The end result was the court vacated the product’s registration.
As a result of the vacatur, farmers and retailers were left not knowing if the products they had purchased could still legally be applied. According to the ruling, issued by the EPA on Monday, June 8, without this action by the EPA, the vacatur of the registrations makes it illegal, not only to sell, but also any further movement of material currently in the hands of distributors, retailers, and end users, including their shipment for disposal or return to the registrants.
Ironically, there is no provision in FIFRA that prohibits use (as opposed to distribution or sale) of unregistered pesticides. It only makes it a violation of FIFRA for any person to “use any registered pesticide in a manner inconsistent with its labeling.” There is no provision that requires that unregistered pesticides (including formerly registered pesticides) be used according to their labels. So without this new EPA order, users of unregistered pesticides would not have been obligated to follow the labeling, accompanying the product. Since the registrations were vacated, anyone holding stocks of these dicamba products would not have been legally precluded from using them without following label directions.
The ruling now serves as a key order providing guidance on how those in possession of the products can now legally proceed. These orders apply to the sale, distribution and use of stock for three dicamba products including: XtendiMax with vapor grip technology from Bayer, Engenia from BASF, and FeXapan from Corteva. Not addressed in the EPA order is the use of Tavium Plus VaporGrip from Syngenta.
The order states that the distribution or sale of these products by any person is generally prohibited except for ensuring proper disposal or return to the registrant.
The order also states that farmers and commercial applicators may use existing stocks that were in their possession on June 3, 2020, which was the effective date of the court decision. Any use must still follow the products’ previously approved labels, and may not continue after July 31, 2020.
Syngenta has said that since the use of Tavium Plus VaporGrip is not part of the ruling, they will continue selling that product.
More clarification from the EPA has been requested by the Agricultural Retailers Association (ARA). They are concerned since the ruling is not consistent with the EPA’s long-standing existing stocks practice following registration invalidation. The ARA is concerned about the impact to retailers who don’t offer commercial application.
There is also confusion in that the EPA order stated a June 3, 2020 cut-off date and some states had authorized the continued sale and use of these products over the weekend through Monday the 8th.