Dicamba’s status clarified for the season

The window for using the dicamba-based herbicides XtendiMax, FeXapan, and Engenia, is still open, but just barely.

On June 8, 2020 the EPA issued a Final Cancellation Order addressing the U.S. 9th Circuit Court of Appeals’ decision to vacate the FIFRA registrations for XtendiMax, FeXapan, and Engenia. The Court’s decision, coming in the midst of the growing season, caused alarm among growers and applicators planning to use these herbicides on dicamba-tolerant crops already planted. Many had already purchased these herbicides, and were caught in the position of owning products that were illegal to use for the purpose they were bought. The EPA’s order clears up the status of XtendiMax, FeXapan, and Engenia, and provides instructions for using “existing stocks:”

  • All use is prohibited after July 31, 2020
  • Commercial applicators can sell and distribute their existing stocks
  • Existing stocks can be applied consistent with the existing label through July 31, 2020
  • Existing stocks of “persons other than the registrant” (e.g., wholesalers, distributors, retailers, etc.) can only be sold or distributed for disposal, returned to the registrant, or returned to a registered establishment
  • Existing stocks of the registrant can only be disposed.

The EPA defined “existing stocks” as XtendiMax, FeXapan, and Engenia “which were packaged, labeled, and released for shipment prior to the Court’s order on June 3, 2020.” Practically speaking, the July 31 deadline will be full-season for many growers.

By way of background, on June 3, 2020 the U.S. Court of Appeals for the 9th Circuit vacated the federal registrations of three dicamba herbicides: XtendiMax, FeXapan, and Engenia. Recall, these herbicides received conditional registration in 2016, adding uses for post-emergent over-the-top (OTT) application on soybeans and cotton that contained the GMO trait for dicamba tolerance. The EPA renewed these conditional registrations in 2018 through 2020. Since 2017, the label for these herbicides has been amended three times due to wide-spread drift and off-target damage to other plants.

As reported by DTN, the Court’s decision caused all manner of confusion among State pesticide regulators. Some States announced the herbicides remained registered in their State, while others concluded they were illegal.

After July 31, 2020, these herbicides will be illegal to apply OTT on the soybeans and cotton crops they were designed for – Xtend soybeans and cotton. This news is welcomed by many groups that don’t plant Xtend crops, but bad news for those that do. The 9th Circuit’s decision arrived after the vast majority of Xtend crops were planted.

While the EPA’s order provides helpful guidance for finishing out the season, it includes one peculiar reason for issuance:

There is no corresponding provision of FIFRA that prohibits use (as opposed to distribution or sale) of unregistered pesticides. . . . There is no provision that requires that unregistered pesticides (including formerly-registered pesticides) be used according to their labels. Thus, in the absence of EPA action, users of unregistered pesticides are not obligated to follow the labeling (which, for registered pesticides, prescribes enforceable conditions for using the particular pesticide, among other things) accompanying the product.

This interpretation of FIFRA is odd coming from the EPA. And probably unnecessary.

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