EPA Approves Three Dicamba-Based Herbicides for the 2021 Crop Year

On October 27, 2020, the EPA announced that it had approved the applications of Bayer and BASF for new registrations of dicamba-based XtendiMax and Engenia for over-the-top use on dicamba-tolerant cotton and soybeans. It also approved Syngenta’s application for a label amendment to extend the December 20, 2020, expiration date for dicamba-based Tavium. These five-year registration decisions were issued under section 3(c)(5) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

The EPA’s recent action follows a June 3, 2020, decision from the United States Court of Appeals for the Ninth Circuit that vacated the EPA’s conditional registrations for XtendiMax, Engenia (BASF), and FeXapan. National Family Farm Coalition v. EPA, 960 F.3d 1120 (9th Cir. June 3 2020).[i] In its decision, the court had found that the EPA made multiple errors in granting the three conditional registrations in October of 2018 (each for a two-year period). The court held that the agency violated FIFRA by substantially understating the risks of dicamba and in “entirely fail[ing] to acknowledge other risks.”  Specifically, the court found that the EPA substantially understated the amount of dicamba-tolerant seed acreage that had been planted in 2018, and, correspondingly, the amount of dicamba herbicide that had been sprayed on post-emergent crops. Further, the court determined that EPA ignored record evidence that “clearly showed that dicamba damage was substantially under-reported.” The court also found that “EPA refused to estimate the amount of dicamba damage, characterizing such damage as ‘potential’ and ‘alleged,’ when record evidence showed that dicamba had caused substantial and undisputed damage.”

In making its new five-year registration decision, EPA stated in the memorandum supporting its decision, with respect to the concerns of the Ninth Circuit, “While conducting its evaluations for this new dicamba decision, EPA considered the issues raised by the Court. As explained below, EPA believes this decision meets the FIFRA standard for registration and is supported by substantial evidence.” The agency’s accompanying effects determination details the environmental risks associated with the products.

Specifically, EPA emphasizes that it is requiring a number of new control measures that are different from those required in 2018. EPA states that it “finds negative impacts to non-users from the registration of these over-the-top dicamba products will be minimal due to the new control measures addressing drift and volatility.” One control measure is a mandatory cutoff date after which application of dicamba is no longer allowed. These cut-off dates are June 30 for soybeans and July 30 for cotton. The following chart presented in the memorandum supporting EPA’s registration decision summarizes the new control measures: