Decision 2020 – Dicamba WINS!, How to get paid, and other legal news to ponder from Cape Law Firm

Dicamba wins hotly contested election for nation’s top crop protection post

On Tuesday night, EPA Administrator Andrew Wheeler announced that the Agency approved 5-year registrations of the dicamba formulations Xtendimax, Engenia, and Tavium for over-the-top spraying on dicamba-tolerant crops. Dicamba has been a constant fixture in ag news over the last 4 years because it moves off-target and damages other crops, plants, and trees. The new registrations come with a few new restrictions, including:

  • a required buffering agent in the tank mix to reduce volatility
  • downwind buffers of 240 feet to 310 feet for endangered species areas
  • application cutoff dates of June 30 for soybeans and July 30 for cotton

DTN also reports that EPA intends to restrict States’ ability to tighten requirements for dicamba use by requiring States to use FIFRA Section 24(a) instead of Section 24(c). The difference is that Section 24(c) allows States to act quickly to address local needs, while Section 24(a) requires a formal legislative rulemaking process.

EPA’s preemptive strike against States’ regulatory authority is odd when you consider the actual text of FIFRA. Section 24(a) provides:

In general: A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.

In contrast, Section 24(c) provides:

Additional Uses: A State may provide registration for additional uses of federally registered pesticides formulated for distribution and use within that State to meet special local needs in accord with the purposes of this subchapter and if registration for such use has not previously been denied, disapproved, or canceled by the Administrator.

These provisions are often understood to allow States to impose more stringent use requirements, or if need be, to expand uses to meet a particular local problem. The last time the U.S. Supreme Court addressed States’ authority to regulate pesticides, it pretty clearly affirmed the States’ authority under FIFRA:

“the statute authorizes a relatively decentralized scheme that preserves a broad role for state regulation. . . . Most significantly, States may ban or restrict the uses of pesticides that EPA has approved, § 136v(a); they may also register, subject to certain restrictions, pesticides for uses beyond those approved by EPA, § 136v(c).”

Administrator Wheeler’s preemptive curbing of State authority seems to be at odds with the way FIFRA has been understood by many.

It is somewhat remarkable that in the span of 4 years we’ve gone from a nation of farmers that feeds the world, to a nation of farmers that can’t feed themselves unless they can use dicamba.

Cape Law Firm’s Frequently (or Randomly) Asked Questions

“How can I make sure that I get paid?”

I usually get this question at the same time I’m asked to help collect on an invoice that is way overdue. There is no single, bulletproof method for guaranteeing you will get paid for your goods and services, but there are some useful tools in the toolbox:

  • a credit check on the customer can be helpful to determine whether they have the ability to pay
  • get paid up front, before delivering the goods or services
  • file and perfect a Security Interest in the goods being sold or other assets
  • use written contracts that contain provisions for collection and enforcement
  • when selling to businesses, get personal guarantees from the individuals that own the business
  • take advantage of special liens under State law – for example, Arkansas gives landlords a lien over crops on leased lands
  • accept credit card payments from customers instead of extending credit yourself

It is always a good idea to “know” your customer. You are in the best position when you have a relationship with the customer and know how they operate – that way you can make a better judgment about doing business in the first place.

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