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Dicamba: Recent Legal Rulings on Dicamba Formulations Designed for Over the Top Applications to Tolerant Soybeans (06/11/20)

On June 3, the U.S. 9th Circuit Court ruled that EPA had not carried out their statutory responsibility with respect to the issuance of three dicamba registrations: Engenia, FeXapan, and Xtendimax. As a consequence, the court vacated their registrations.

On June 3, the U.S. 9th Circuit Court ruled that EPA had not carried out their statutory responsibility with respect to the issuance of three dicamba registrations: Engenia, FeXapan, and Xtendimax. As a consequence, the court vacated their registrations. Essentially, this is legal talk for saying these registrations no longer exist. You can read the ruling here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/03/19-70115.pdf

What was so unprecedented about this ruling is the court did not give EPA any directions on cancelling these products. After reviewing the ruling, registrants stopped distribution to retailers on June 4. By that afternoon, the North Dakota Department of Agriculture (NDDA) indicated in a news release, that the sale and use of these products were no longer legal. By the afternoon of June 5, the NDDA reversed their earlier position and instructed dealers and applicators that sales and use may resume under state registration until such time as EPA clarified what the court ruling meant. You can read that statement here:

https://www.nd.gov/ndda/news/north-dakota-state-registration-dicamba

On the evening of June 8, EPA released a 12-page order regarding the distribution, sales and use of Engenia, FeXapan, and Xtendimax. You can read the actual order here; it is a cancellation order:

https://www.epa.gov/sites/production/files/2020-06/documents/final_cancellation_order_for_three_dicamba_products.pdf

The main points of the order are as follows:

  1. Distribution or sale by the registrant. Distribution or sale by the registrant (BASF, Bayer and Corteva) of all existing stocks of the three products listed below is prohibited effective as of the time of the order on June 3, 2020, except for distribution for the purposes of proper disposal.
  2. Distribution or sale by persons other than the registrant. Distribution or sale of existing stocks of the three products listed above that are already in the possession of persons other than the registrant is permitted only for the purposes of proper disposal or to facilitate return to the registrant or a registered establishment under contract with the registrant, unless otherwise allowed in item #3 or #4 below.
  3. Distribution or sale by commercial applicators. For the purpose of facilitating use no later than July 31, 2020, distribution or sale of existing stocks of the three products listed above that are in the possession of commercial applicators is permitted.
  4. Use. Use of existing stocks of products listed above inconsistent with any respect with the previously approved labeling accompanying the product is prohibited. Use after July 31, 2020 is prohibited.

List of Cancelled Products:

  • BASF, Engenia--EPA Registration Number 7969-345
  • Bayer, Xtendimax with VaporGrip--EPA Registration Number 524-6 17
  • Corteva, FeXapan--EPA Registration Number 352-9 13

 

On the afternoon of June 9, the NDDA released a statement concurring with EPA’s order. In addition, they reminded applicators that, under State 24C labeling, applications beyond June 30 are prohibited. You can read their statement here:

 

https://www.nd.gov/ndda/news/epa-orders-cancellation-dicamba-products-includes-provisions-existing-stocks

 

Moving forward, the Plaintiffs in the lawsuit contend that EPA’s June 8 order does not comply with the Court’s ruling. They will likely seek some additional relief from the Court. At the time of this writing, it is impossible to know what, if anything, this will mean for users of these products.

When the lawsuit was filed, Syngenta had yet to receive a registration for Tavium. It is not named in the court ruling, so Tavium may continue to be used as directed by Federal and State labeling on tolerant soybeans.

BASF, Bayer, Corteva, and Syngenta are all seeking registrations for their products for 2021 and beyond. Again, at the time of this writing, it is impossible to know if these products will be available next season and under what sort of labeling instructions. In the meanwhile, users of Xtend traited soybeans and users of the herbicides designed for them should closely monitor Federal and State directives to stay in compliance with the law.

 

Andrew A. Thostenson

Pesticide Program Specialist

This site is supported in part by the Crop Protection and Pest Management Program [grant no. 2017-70006-27144/accession 1013592] from the USDA National Institute of Food and Agriculture. Any opinions, findings, conclusions, or recommendations expressed are those of the website author(s) and do not necessarily reflect the view of the U.S. Department of Agriculture.

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