The Environmental Protection Agency will allow growers and applicators to use existing stocks of three dicamba herbicides until July 31, despite a recent appeals court decision vacating the products’ registrations.
In a press release late Monday, the agency said it was canceling the registrations of the herbicides but that “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.”
Bayer issued a short statement late Monday praising 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," the company said, adding its "top priority is making sure all our customers have the support they need to have a successful season. 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." The registrations were due to expire in December.
But soon after EPA made its announcement Monday night, it was criticized both by ag retailers and the plaintiffs who brought the case against the agency.
The order allows the sale of dicamba by applicators who had the product as of the June 3 court decision, but not by retailers.
EPA's cancellation order "will create confusion, especially since it is being issued at the end of today [June 8] with the June 3, 2020, cut-off date and after many individual states publicly authorized the continued sale and use of these products over the weekend and through today," Agricultural Retailers Association (ARA) Senior Vice President of Public Policy and Counsel Richard Gupton said.
In the five days since the decision, at least 16 states have said they were allowing continued use of the products.
EPA's order says in order "to facilitate an orderly wind-down" of the products, EPA is allowing pesticide dealers who hold existing stocks "to return them to the registrant or dispose of them in accordance with federal, state and local waste disposal requirements."
But Gupton told Agri-Pulse "previous existing stocks cancellation orders typically allowed all product that has already left the possession of the registrant to be distributed, sold and used throughout the supply distribution chain."
The plaintiffs' attorneys, from the Center for Food Safety and the Center for Biological Diversity, said they would be going to court "expeditiously" to enforce the court's order. They called EPA's cancellation order "disingenuous" and said it "flies in the face of the court decision holding dicamba-based pesticides unlawful" as well as "the well-documented and overwhelming evidence of substantial drift harm to farmers from another disastrous spraying season."
The agency order "raises the same arguments in favor of continued use that the court has already rejected," they said. "All users that continue to not seek alternatives should be on notice that they are using a harmful, defective, and unlawful product."
Myriad farm groups had urged EPA to seek an emergency stay of the court decision but also sought to be able to use already purchased product.
“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,” EPA Administrator Andrew Wheeler said. “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 cancellation order “authorizes limited distribution of existing stocks of Xtendimax, BASF's Engenia, and Corteva's FeXapan by commercial applicators and authorizes all other sale or distribution of existing stocks only to facilitate return to the manufacturer or for proper disposal,” the order says.
EPA said the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not prohibit the use — as opposed to the sale or distribution — of unregistered pesticides.
It is a violation of FIFRA for any person to "use any registered pesticide in a manner inconsistent with its labeling," the order says. “There is no provision that requires that unregistered pesticides (including formerly-registered pesticides) be used according to their labels,” the order says. “Thus, in the absence of EPA action, users of unregistered pesticides are not obligated to follow the labeling (which, for registered pesticides, prescribes enforceable conditions for using the particular pesticide, among other things) accompanying the product.
“Therefore, because these registrations are vacated, unless EPA takes action, persons holding stocks of these dicamba products would not be legally precluded from using those stocks without following label directions, including the restrictions intended to reduce off-target movement,” the order says.
Center for Biological Diversity attorney and co-counsel Stephanie Parent called EPA's reasoning "absurd."
“In the reckless, lawless logic of the Trump EPA, if you have DDT you already purchased in your barn, you can legally use it," Parent said. "We will ask the court to enforce its clear order instructing farmers not to use dicamba on their crops, period.”
EPA says in its order, "It is clear from the numerous unsolicited phone calls and emails that EPA has received since the issuance of the court's decision, there is a real concern and potential for devastation to cotton and soybean crops that could result in a crisis for the industry."
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EPA’s order cites letters from farm groups such as the American Farm Bureau Federation, ARA, American Soybean Association, and National Cotton Council. “The agency has considered the correspondence received to date and finds that the benefits resulting from the use of the products are considerable and well established, particularly for this growing season,” the order states.
EPA estimated that “approximately 4 million gallons could be in the channels of trade.”
EPA summarized its decision on existing stocks in its order, saying:
- Distribution or sale by the registrant of all existing stocks of the products is prohibited effective as of the time of the [court] order on June 3, except for distribution for the purposes of proper disposal.
- Distribution or sale of existing stocks of the products 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 below.
- 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.
- 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.
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