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EPA cancels dicamba registrations while allowing use of existing product stocks

Distribution or sale is generally prohibited except for ensuring proper disposal or return to the registrant.

The  Environmental Protection Agency (EPA ) has issued a cancellation order regarding the Ninth Circuit Court of Appeals’ June 3, 2020, vacatur of three dicamba registrations: Xtendimax, Engenia, and FeXapan.

The cancellation order stops distribution or sale of these three dicamba products. However, farmers and commercial operators may use existing stocks of Xtendimax, Engena, and FeXapan that were in their possision as of June 3, 2020, which was the date of the court decision. Use must be consistent with the products' previously approved labels, and may not continue after July 31, 2020. Some states have earlier cutoff dates. For example, Minnesota farmers may not apply dicamba after June 20. 

The Ninth Circuit Court followed a similar route when it vacated EPA’s 2013 registration of the pesticide sulfoxaflor in 2015. (Pollinator Stewardship Council v. EPA
In this case, the EPA treated the Ninth Circuit Court’s decision as a cancellation under FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act). The court left it up to the EPA to decide what to do with existing stock. 


“In that case, it permitted farmers who had already purchased that pesticide to apply it for that growing season," says Brigit Rollins, state attorney with the National Agricultural Law Center. 

The court's decision does not affect Tavium, Syngenta's dicamba herbicide for dicamba-tolerant crops. Tavium was not registered when the lawsuit was filed. Current registration of dicamba used in a dicamba-tolerant cropping system was set to expire later this year. 

“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, in an EPA news release. “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.”

The EPA said its order will mitigate some of what EPA terms 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.

Bayer issued this statement following EPA's announcement: 

"We welcome the EPA’s swift action. XtendiMax and the other low-volatility dicamba products are vital tools that many growers rely on to safely, successfully, and sustainably protect their crops from weeds. Our top priority is making sure all our customers have the support they need to have a successful season. We are reviewing the EPA’s action and we will keep this webpage updated with the latest information for our customers. Bayer stands fully behind XtendiMax, and we will continue working with the EPA, growers, academics, and others to provide long-term access to this important tool."

BASF issued the following statement following the EPA decision: 

“While BASF supports the U.S. EPA’s action to allow the use of existing stocks of Engenia herbicide by growers and commercial applicators, we believe that additional clarity and flexibility is required to address the complexities of the supply chain so that farmers have the opportunity to use Engenia this season in accordance with the EPA order. Therefore, we will be working with the EPA to address this issue. 

“Following the Ninth Circuit Court of Appeals’ June 3, 2020, order, BASF suspended selling and shipping Engenia herbicide while awaiting further direction from the U.S. EPA. Based on EPA’s current guidance, BASF will continue to not sell or distribute Engenia herbicide in the United States. Farmers continue to need access to over-the-top (OTT) applications of dicamba-based products to control resistant weeds across tens of millions of dicamba-tolerant soybean and cotton acres at their most critical time of the year.

“We remain committed to serving our customers with safe and effective crop protection solutions, including Engenia herbicide, and we continue to work on new dicamba-based innovations to assist farmers with weed control. In addition, BASF will continue to pursue reregistration of Engenia with the U.S. EPA.

“BASF continues to assess its options to pursue all legal remedies available to challenge the Order.”

Not all agree with EPA’s decision, though. The Center for Food Safety, one of the plaintiff’s in National Family Farm Coalition v EPA & Monsanto issued this statement:

“Yesterday's disingenuous order from EPA flies in the face of the Court decision holding dicamba-based pesticides unlawful. It ignores the well-documented and overwhelming evidence of substantial drift harm to farmers from another disastrous spraying season. It ignores the risks to hundreds of endangered species. It ignores the comprehensive analysis by the Court of these harms. It raises the same arguments in favor of continued use that the Court has already rejected. The Trump administration is again showing it has no regard for the rule of law. All users that continue to not seek alternatives should be on notice that they are using a harmful, defective, and unlawful product. We will bring the EPA's failure to abide by the Court's order to the Court as expeditiously as possible.”

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