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The U.S. Environmental Protection Agency (EPA) issued a key order this week providing farmers with needed clarity following the Ninth Circuit Court of Appeals’ June 3, 2020 vacatur of three dicamba registrations.

The June 8 cancellation order outlines limited and specific circumstances under which existing stocks of the three affected dicamba products can be used for a limited period of time. EPA’s order will advance protection of public health and the environment by ensuring use of existing stocks follows important application procedures.

“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,” said EPA Administrator Andrew Wheeler said in a news release “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.”

EPA’s order will mitigate some of the devastating economic consequences of the Court’s decision for growers, and particularly rural communities, at a time they are experiencing great stress due to the COVID-19 public health emergency.

Details of the Order

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.

Distribution or sale by any person is generally prohibited except for ensuring proper disposal or return to the registrant.

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.

Bayer, the German parent company of Monsanto Co., which makes the herbicide welcomed 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 in a statement, adding, "Our top priority is making sure all our customers have the support they need to have a successful season."

Company officials said they were reviewing the EPA’s action and the Bayer's webpage updated with the latest information at https://bit.ly/2MJa2UZ.

In Wisconsin

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) released clarification Tuesday for agricultural producers and commercial pesticide applicators of the following changes:

  • If you were in possession of any of these herbicides as of June 3, 2020, you can continue to apply these products consistent with the label until July 31, 2020.
  • You cannot distribute or sell these herbicides as of June 8, 2020. This includes unfulfilled deliveries. If you purchased these products but did not take delivery prior to June 3, 2020, you will no longer be able to take delivery of these products.
  • You must return any unused or unsold product through the proper channels through whom the product was purchased.

Richard Gupton, senior vice president of public policy and counsel for the Agricultural Retailers Association said the association is seeking clarification from the EPA after it announced existing stocks of three dicamba products can be used until July 31, despite the recent court ruling vacating the registrations.

“We still have some questions related to how this can be implemented, particularly since their date goes back to the June 3 court date and you’ve had over the past several days a large number of states continuing to allow the sale and use of the product,” he told the Brownfield News Ag report.

The association is also asking the EPA to request an emergency Stay order of the court ruling so the industry can continue to operate.

The association is also asking the EPA to answer questions regarding possession of the herbicide in cases where farmers prepaid, but the product is being stored at a dealer location.

Large farm groups like the National Corn Growers Association went on record urging the EPA to immediately appeal this ruling and obtain a stay of the "overreaching court order".

"(The court's) decision to remove a weed control option, especially in the middle of the season, adds yet another challenge to an already difficult time and sets a concerning precedent," the group said.

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