EPA Allows Farmers To Use Existing Dicamba Stocks

Source: EPA news release

In light of the February 6, 2024, ruling by the U.S. District Court of Arizona vacating the 2020 registrations for over-the-top (OTT) dicamba products, the U.S. Environmental Protection Agency (EPA) is providing the following update.

On February 14, 2024, EPA issued an Existing Stocks Order for Dicamba Products Previously Registered for Over-the-Top Use on Dicamba-Tolerant Cotton and Soybean. This Order addresses use of the formerly-registered dicamba products and authorizes limited sale and distribution of dicamba products that are already in the possession of growers or in the channels of trade and outside the control of the pesticide companies.

Background

Dicamba is an herbicide used to target broadleaf weeds in agricultural and non-agricultural settings. The herbicide is registered for use at specified stages in agricultural crop fields of corn, cotton, sorghum, soybeans, sugarcane, and other crops.

The dicamba products subject to the February 2024 vacatur were registered to be sprayed OTT of genetically engineered dicamba-tolerant soybeans and cotton after the crops have emerged from the ground. There are also dicamba products that are only registered for non-OTT applications. These products are applied earlier in the growing season before crop emergence while OTT products can be applied later in the growing season after crop emergence.

Dicamba was first registered for OTT uses on dicamba-tolerant cotton and soybeans in 2016. In 2017 and again in 2018, EPA amended the registrations of all OTT dicamba products following reports that growers had experienced crop damage and economic losses resulting from the off-site movement of dicamba.

The U.S. Court of Appeals for the Ninth Circuit vacated the 2018 registrations in June 2020 on the basis that “EPA substantially understated risks that it acknowledged and failed entirely to acknowledge other risks.” Days after the court’s decision, EPA issued an order for the affected products that addressed existing stocks.

In October 2020, EPA issued new registrations for two dicamba products and extended the registration of an additional dicamba product until 2025. All three registrations included new measures that the Agency expected to prevent off-target movement and damage to non-target crops and other plants. Further state-specific amendments to the registrations occurred in 2022 and 2023.

In response to a lawsuit against EPA concerning these registrations, on February 6, 2024, a ruling by the U.S. District Court of Arizona vacated the 2020 registrations for OTT dicamba products XtendiMax, Engenia, and Tavium. As of February 6, 2024, these products are unregistered, and sale or distribution of these products is unlawful except as provided in EPA’s February 2024 existing stocks order.

Existing Stocks Order

EPA has issued an Existing Stocks Order to allow for limited sale and distribution of dicamba OTT products that were already in the possession of growers or in the channels of trade and outside the control of pesticide companies as of February 6, 2024. The order also prohibits the use of these dicamba products except where the use is consistent with the previously approved labeling, which included measures intended to reduce environmental damage caused by offsite movement of the pesticide.

This Existing Stocks Order is limited in time and scope, allowing for certain sale, distribution, and use of existing stocks of these formerly-registered dicamba products for the 2024 growing season. EPA has received ample evidence that millions of gallons of OTT dicamba had already entered the channels of trade prior to February 6, 2024.

Additionally, most growers have already placed orders for dicamba-tolerant seed for the 2024 growing season and, given the timing of these registrations being vacated, are not able to pivot to another herbicide-tolerant seed and herbicide system.

The issuance of this Existing Stocks Order will help ensure that growers who already possess OTT dicamba and/or have already purchased dicamba-tolerant seeds and thus are reliant on the availability of specific products solely for the 2024 growing season:

(1) apply only dicamba formulations designed for use over the top of dicamba-tolerant soybean and cotton, rather than violating FIFRA by misusing more volatile dicamba formulations which could lead to greater offsite movement (and thus potential damage to non-dicamba tolerant crops and other plants); and

(2) apply these OTT dicamba products consistent with restrictions intended to reduce offsite movement and protect human health and the environment. Thus, it is necessary for EPA to issue an Existing Stocks Order to ensure that growers follow these directions for use, which were designed to reduce environmental damage caused by offsite movement.

Under this order, end users of existing stocks may only use the formerly-registered products consistent with the previously approved labeling for the products and must stop use of these products by the relevant dates laid out in the Order.

Additional details regarding restrictions on the sale, distribution, and use of these formerly-registered products can be found in EPA’s Existing Stocks Order for Dicamba Products Previously Registered for Over-the-Top Use on Dicamba-Tolerant Cotton and Soybean.

Next Steps EPA will continue to update the public and the states as it evaluates and takes any actions related to dicamba use. For more information, visit EPA’s website.

To read the order click here.