Ninth Circuit Court of Appeals Vacates Dicamba Registrations

Peanuts067On June 3, the 9th U.S. Circuit Court of Appeals vacated the registrations of three dicamba herbicides—Bayer’s Xtendimax, BASF’s Engenia and Corteva’s FeXapan. The court found that EPA violated FIFRA in its conditional approvals by, among other things, not adequately estimating dicamba damage. The court’s decision does not address Tavium, Syngenta’s dicamba herbicide. In response to the court’s decision, AFBF sent a letter to EPA Administrator Wheeler. The letter notes that many farmers have already made planting decisions to use dicamba-tolerant crop systems and planned to use dicamba products in the very near future. The letter also asks EPA to provide clarity to farmers and issue an existing stock order to ensure this product remains available to farmers throughout this growing season.

On June 8, EPA issued an order providing clarity on the three canceled Dicamba registrations. 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.

In short, the order says:

  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.

The Virginia Department of Agriculture and Consumer Services is aware of the court’s decision and is complying with further guidance from EPA regarding the federal registration status of these products.

We have already seen an emergency motion filed in the 9th court on this issue, and expect to see further legal action. The status of the dicamba registration could change quickly and with little advance notice, so growers, pesticide applicators and distributors and retailers are encouraged to check the VDACS Office of Pesticide Services webpage for updates.

Frequently Asked Questions on Dicamba Cancelation:

If a farmer has purchased Dicamba from a retailer but not yet taken possession by 6/3/20 can they now pick-up the product? 

  • Yes. If the Dicamba purchase was completed on or before June 3, 2020 they can pick up the product. VDACS would expect sales records to reflect the date of the purchase.

Can a farmer now contract a provider to apply Dicamba that retailer currently has in their possession? For example, Southern States can be a retailer as well as provide commercial/contract applicator services. If a farmer hires them to apply dicamba that product continues to be in possession of the commercial applicator and the farmer is paying for the service, not purchasing the product. 

  • Yes, a farmer can contract with a licensed pesticide business for the commercial application of Dicamba. As indicated, they are paying for the service not purchasing the product.

Can a farmer currently in possession of Dicamba distribute that product to another farmer or farm entity for their personal use?  

  • No. The cancellation prohibits the distribution of the product from dealers, retailers, or any other persons except for the purposes of proper disposal or to facilitate return to the registrant. A farmer would be considered “any other person.” § 3.2-3930 (A) of the Virginia Pesticide Control Act would, however, allows Farmer A (in possession of the Dicamba) to apply the Dicamba for Farmer B.

Read the Full 9th Circuit Opinion

Click Here for the EPA’s key order on Dicamba

Click Here for the full EPA cancelation order

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