EPA Allows Some Use of Dicamba-Based Herbicides Through July 31
Update: On June 19, the Ninth Circuit denied the plaintiff's emergency motion to enforce the vacature and hold EPA in contempt.
Update: Late June 11, the plaintiffs filed an emergency motion to enforce the vacatur and hold EPA in contempt. The court filed an order June 12 directing EPA to file a response by June 16 and the petitioners to file a reply by June 18. Manufacturers have filed motions to intervene. Stay tuned! For now, the EPA cancellation order remains in place.
Late on June 8, 2020, the U.S. EPA issued a cancellation order for three dicamba-based herbicides: Xtendimax with Vaporgrip Technology, Engenia, and FeXapan. The order followed the Ninth Circuit’s immediate vacatur of the EPA’s conditional registrations for these herbicides on June 3, 2020, in the case of National Family Farm Coalition, et.al., v. EPA, No.19-70115 (9th Cir. 2020). The court found that the EPA violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by substantially understating some risks of dicamba and by entirely failing to acknowledge other risks. The court ruled that there was no substantial evidence to support the EPA’s decision to register the herbicides.
The court order led to widespread concern, in particular, regarding whether farmers or applicators with existing stocks could use the product already on hand. Today’s cancellation order regulates the distribution and use of “existing stocks” legally purchased pursuant to EPA-issued registrations. It generally allows these stocks to be used through July 31, 2020.
The cancellation order, issued pursuant to section 6(a)(1) of FIFRA, defines existing stocks as those “registered pesticide products listed below which are currently in the United States and which were packaged, labeled, and released for shipment prior to the time of the order on June 3, 2020, the effective date of the vacatur of the affected registrations.” It provides the instructions listed below.
Distribution or sale by the registrant
Distribution or sale by the registrant of all existing stocks of the products is prohibited effective as of the time of the order on June 3, except for distribution for the purposes of proper disposal.
Note: This means that Bayer, BASF, and Corteva may no longer sell or distribute these products. This prohibition was effective as of the time of the court order. The cancellation order does, however, allow the manufacturers to transport the products for the purpose of proper disposal.
Distribution or sale by persons other than the registrant
Distribution or sale of existing stocks of the products 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 below.
Note: Except for the exception below applying to commercial applicators, no one can distribute or sell these products in their possession, unless it is for the purpose of disposing of them or returning them to the manufacturer or its representative.This language would apply to dealers with stocks on hand.
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 products that are in the possession of commercial applicators is permitted.
Note: Commercial applicators can distribute and sell the dicamba-based products already in their possession through July 31, 2020. The body of the order explains, "EPA is aware that farmers may in some cases have purchased these dicamba products, which are restricted use pesticides (RUPs), and had them delivered to their farm for subsequent application by a commercial applicator. Commercial applicators themselves may have already purchased these dicamba products in order to provide a service of applying them to farmers crops in the upcoming weeks. Given the substantial financial expenditure already made in these situations along with the other factors discussed above, EPA considers it appropriate to allow 1) existing stocks of these dicamba products in the hands of users to be used until July 31, 2020 and 2) for existing stocks of these dicamba products in the hands of commercial applicators to be used until July 31, 2020 (including moved as necessary for such use, regardless of whether the movement is sale or distribution), both subject to conditions."
Use of existing stocks of products inconsistent in any respect with the previously-approved labeling accompanying the product is prohibited. All use is prohibited after July 31, 2020.
Note: This means that farmers (private applicators) and commercial applicators may use their existing stocks of dicamba-based products, but that they must follow the instructions on the previously-approved label. No one may use the products after July 31, 2020.
EPA News Release
In conjunction with issuing the cancellation order, EPA issued a statement summarizing it. It is reproduced here:
EPA’s order addresses sale, distribution, and use of existing stocks of the three affected dicamba products – XtendiMax with vapor grip technology, Engenia, and FeXapan.
1. Distribution or sale by any person is generally prohibited except for ensuring proper disposal or return to the registrant.
2. Growers and commercial applicators may use existing stocks that were in their possession on June 3, 2020, the effective date of the Court decision. Such use must be consistent with the product’s previously-approved label, and may not continue after July 31, 2020.
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