To spray or not: Confusion reigns over dicamba ruling

Interpretation over U.S. Court of Appeals, Ninth Circuit Ruling is not uniform among states.

On June 3, 2020, the 9th U.S. Circuit Court of Appeals removed the registration for the following dicamba-containing herbicides: Xtendimax (EPA Reg. No. 524-617), Engenia (EPA Reg. No. 7969-345), and FeXapan (EPA Reg. No. 352-913).

However, whether or not farmers are allowed to buy and/or apply these dicamba products remains to be seen. 

In many states, federal registration is not required as a condition of state registration. So, several states are continuing to allow the sale and application of Xtendimax, Engenia, and FeXapan for now. 

Here’s a state-by-state recap of what state departments of agriculture are saying for now. This story will continue to be updated as we learn more from each state. 

It’s better to be safe than sorry – if you have any questions, consult your local dicamba provider, county Extension agent, or state department of agriculture website. 

Arkansas: Not allowed.

In December, 2019 the Arkansas Plant Board set a May 25 cutoff for application of all dicamba herbicides. 

Source: Arkansas Department of Agriculture

Illinois: Not allowed.

The Illinois Department of Agriculture has issued a stop use and stop sale of these products, according to Purdue University. 

Source: Illinois Fertilizer and Chemical Association

Indiana: Allowed.

The Office of the Indiana State Chemist has contacted the U.S. Environmental Protection Agency for clarification, but has not received any guidance as of 4 p.m. Friday, June 5. The three products currently have state registrations with OISC, and the Ninth Circuit Court of Appeals did not address state registrations. Since Indiana pesticide law doesn’t require federal registration as a condition of state registration, the OISC has not initiated any suspension or cancellation orders for the products yet. Therefore, the state registrations are still valid and, until further notice, under state pesticide law, these products can continue to be used and distributed in Indiana. 

Source: OISC

Iowa: Allowed.

The Iowa Department of Agriculture and Land Stewardship has not issued a stop-sale order and will continue operating under the current pesticide program until it receives guidance from the EPA. The department does not anticipate taking enforcement action against those who otherwise appropriately purchase, sell, or use these products in the interim. This enforcement decision may change immediately based on further guidance from the EPA.

Source: Iowa Department of Agriculture

Kansas: Allowed.

The KDA pesticide and fertilizer program is aware of the June 3, 2020, decision by the Ninth Circuit of the U.S. Court of Appeals to vacate the registrations for certain dicamba products (XtendiMax, FeXapan, and Engenia). At this time, no action has been taken in Kansas in regard to these products, as we await guidance from the Environmental Protection Agency on how to best implement that decision. Therefore, these dicamba products are still available for use in Kansas, and KDA will enforce the sales and applications of these products as they are currently registered in Kansas. We will make every effort to keep you informed with critical information as it becomes available.

Source: Kansas Department of Agriculture

Kentucky: Allowed.

Kentucky Agriculture Commissioner Ryan Quarles says the KDA will "... continue to follow the current registration requirements as we await updated guidance from the Environmental Protection Agency We ask producers and agribusinesses to be patient with KDA and our office as we do our best to interpret the ruling and any new guidance from EPA."

Source: Kentucky Department of Agriculture

Louisiana: Allowed.

Mike Strain, commissioner of the Louisiana Department of Agriculture and Forestry, says farmers will be allowed to use dicamba products until further notice. In a statement, he says "“As in other states, dicamba is still available for use in Louisiana as currently labeled and will continue to be until ordered to stop. We are in contact with the U.S. Department of Agriculture (USDA) and the EPA in regard to the application of these crop protection products that farmers have already purchased and will need to use very soon on crops already in the ground.”

Source: Louisiana Department of Agriculture and Forestry

Michigan: Uncertain.

As of 4:30 p.m. June 5, the Michigan Department of Agriculture and Rural Development had not made a public statement on the use of FeXapan, Engenia, or Xtendimax. 

Minnesota: Not allowed.

Effective immediately, the purchase and application of XtendiMax, Engenia, and FeXapan are prohibited, according to the Minnesota Department of Agriculture. However, the MDA recommends frequent visits to its website to stay abreast of the EPA review of the decision. 

Source: Minnesota Department of Agriculture

Missouri: Allowed.

Chris Chinn, Missouri’s Secretary of Agriculture, distributed a statement June 5 that says the dicamba herbicide brands XtendiMax, Engenia, and FeXapan are still registered for sale and use within the state of Missouri and will be treated as such until further guidance is provided by the U.S. Environmental Protection Agency. This interpretation may be updated at any time due to further enforcement guidance from EPA. To that end, the department will use enforcement discretion and will not issue enforcement actions for the sale and use of these three products at this time; however, the department will continue to investigate complaints of off-target movement.

Source: Missouri Department of Agriculture

Nebraska: Allowed.

On June 6, the Nebraska Department of Agriculture released a statement declaring that until further notice, buying and application of the three affected dicamba products is allowed to continue: 

"...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 Nebraska Department of Agriculture Director Steve Wellman.

Source: Nebraska Department of Agriculture

North Dakota: Allowed.

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 the products, it made no mention of state registrations. We have not received formal notification revoking these three products. Until directed otherwise, the department is standing by our state registrations of these products and recognizing them as legal for sale and use in North Dakota. 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.”

The North Dakota 24c SLN allows applications of dicamba on soybeans through June 30 or beginning bloom (R1 growth phase), whichever comes first.
Source: North Dakota Department of Agriculture

Oklahoma: Allowed. 

"Dicamba is still available for sale and use in Oklahoma and will remain so until federal officials tell us otherwise," said Oklahoma Secretary of Agriculture Blayne Arthur in a statement, "but we need to hear from EPA on what farmers can expect in the coming days and weeks. Despite economically challenging times for agriculture, our farmers have invested in these tools for this year’s crop and time is of the essence as our state’s soybean and cotton crops go in the ground." Arthur adds that her office is looking to the U.S. EPA for clarity on the issue.

Source: Oklahoma Farm Report

Ohio: Uncertain.

As of 4:30 p.m. June 5, the Ohio Department of Agriculture had not made a public statement on the use of FeXapan, Engenia, or Xtendimax. 

South Dakota: Uncertain.

As of 5 p.m. June 5, the South Dakota Department of Agriculture had not made a public statement on the use of FeXapan, Engenia, or Xtendimax. 

Tennessee: Allowed.

A statement on the Tennessee Department of Agriculture website reads: "The Tennessee Department of Agriculture is aware of a Ninth Circuit United States Court of Appeals decision vacating multiple labels of dicamba products issued by the United States Environmental Protection Agency. The Department is awaiting direction for whether and how those registered labels are affected in Tennessee. Absent further direction from EPA, the Department expects to enforce label requirements as the products are registered in this state."  ​

Source: Tennessee Department of Agriculture

Texas: Allowed.

"For the farmers in Texas, I want to be clear: I've got your back," Texas Agriculture Commissioner Sid Miller told his state's farmers. "Dicamba is still available for use in Texas as currently labeled and will continue to be so until someone tells us to stop. In this difficult time, the last thing Texas farmers need is more uncertainty.”   

“The Ninth Circuit ruling on dicamba is already spurring very significant confusion and chaos among soybean and cotton growers and applicators here in Texas, who were intending to apply the herbicide today, tomorrow and over the coming weeks.   The Environmental Protection Agency (EPA) can and should provide clarity as soon as possible by announcing that it plans to take further administrative action, and then doing so.”   

“On behalf of the farmers in my state, I respectfully request that EPA issue an existing stocks order to provide appropriate guidance to farmers and applicators and request a Section 18 Emergency Use for these products for Texas farmers.”  

Source: Texas Department of Agriculture

Wisconsin: Allowed.

A federal appeals court decision to remove the registration for several herbicides will not immediately impact Wisconsin soybean producers. 

For the order to take effect in Wisconsin, the Environmental Protection Agency (EPA) must take action to revoke the registration of these products. The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) will continue to monitor and evaluate the situation and wait for direction from EPA prior to changing the state registration for these products.

Source: Wisconsin DATCP

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