On Monday, the Environmental Protection Agency published a detailed cancellation order in response to last week’s Ninth Circuit Court of Appeals decision that vacated the 2018 registrations of three of the most commonly used pesticide labels in the United States. NASDA appreciates the EPA’s efforts to give growers some additional clarity, but many questions remain. It remains unclear if the order provides enough direction to guide growers through the full 2020 season without major disruptions.
Let’s start with what we know. The order invokes EPA’s Existing Stocks Policy to provide farmers with some guidance on how to proceed with the 2020 growing season and includes the following key details:
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.
The cancellation order applies to: Bayer’s Xtendimax with Vaporgrip Technology (EPA Reg. No.524-617); BASF’s Engenia (EPA Reg. No. 7969-345); and Corteva’s FeXapan (EPA Reg. No. 352-913).
What’s Comes Next?
Despite the additional guidance, several questions remain for states and growers. The EPA order clearly prohibits all use past July 31, 2020, which may not be enough time for all farmers using Dicamba products to finish out the growing season. Many farmers invested in seeds that are specifically designed to be paired with Dicamba. If they cannot use the pest control product through the entirety of the growing season, their crop yields, the viability of their businesses and the rural communities that depend on them will be in jeopardy.
Another gray area is how state-specific guidance will interact with the new EPA order. Individual states chose actions best suited for their farmers following the Ninth Circuit decision, with some standing by their state registrations and others halting the use of Dicamba altogether. Remaining questions NASDA holds for EPA are “does the order support or negate state actions?” and, “what liability exists for growers or commercial applicators who purchased Dicamba in their state after the June 3, 2020 decision?” Most importantly, for the protection of farmers simply looking to grow their crop within the rules “what legal challenges may await EPA’s order?” as additional action in the courts is almost certain.
In forty-three states and all territories, state departments of agriculture are co-regulators with EPA and are responsible for administering, implementing and enforcing the production, labeling, distribution, sale, use and disposal of pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). NASDA will continue to work closely with the EPA to answer these questions and provide NASDA members with guidance from EPA’s expert staff. Especially in times like these, we know clarity in regulations makes an impact on the farm and in grocery stores across the country.