June 10, 2020
If ever there were a herbicide roller coaster, the past seven days in the life of dicamba have been it.
On June 3, the U.S. Court of Appeals for the 9th Circuit issued a ruling that vacated the U.S. EPA registration for Xtendimax, Engenia and Fexapan.
On June 4, the Illinois Department of Agriculture’s legal staff said that meant no use, sale, or distribution of those products, effective immediately.
By Friday night, June 5, the U.S. EPA issued a statement that provided few guidelines but indicated it was still at work: “EPA is assessing all avenues to mitigate the impact of the Court’s decision on farmers.”
On Monday, The U.S. EPA issued a cancellation order for the three dicamba products, which said existing stocks could be used under limited and specific circumstances, including that farmers and commercial applicators could use any supply on hand as of June 3, and apply according to label.
On Tuesday, IDOA extended the cutoff date for dicamba application from June 20 to June 25 and clarified guidelines for use of Xtendimax, Engenia and Fexapan in Illinois with the following:
• Distribution or sale of existing stocks that are in the possession of commercial applicators is permitted.
• Use of existing stocks must be consistent with previously approved labels.
• All conditions of IDOA’s 24(c) state-specific registrations remain in effect; no application when forecasted temperature exceeds 85 degrees F.
• Application cutoff date extends from June 20, 2020, to June 25, 2020.
Doug Owens, IDOA bureau chief of environmental programs, says the agency extended to June 25 to make up for the days that were lost due to the circuit court ruling and awaiting guidance from EPA on existing stocks.
“I hope everybody uses those five days to get out there and use their existing stocks. That was a pretty big decision that came down, and it should help out quite a bit,” Owens says. He and staff will submit Illinois’ application to amend the existing 24(c) label yet this week.
Jean Payne, Illinois Fertilizer and Chemical Association, points out that the plaintiffs who filed the original case in the 9th Circuit Federal Court are seeking to quash this cancellation order.
“Good record keeping on dicamba application is going to be more important than ever this year,” Payne adds. She and IFCA worked with IDOA to develop a record keeping guide for procedures to record wind speed, direction and buffer documentation.
“Good records are critical to avoid penalties in misuse investigations,” she adds.
On Wednesday, IDOA issued a set of 10 frequently asked questions regarding dicamba’s legal and regulatory roller coaster, which provide clarity for farmers and retailers. Here’s a look:
1. Which dicamba products are affected by EPA’s cancellation order? EPA’s cancellation order affects XtendiMax, Engenia and Fexapan; it does not affect Tavium, which can still be distributed, sold and used in accordance with federal and Illinois label requirements.
2. I’m a pesticide dealer or retailer that does not have commercial pesticide applicators. Can I distribute or sell affected dicamba products already in my possession? Without commercial applicators, you cannot distribute or sell; you can only help dispose of or return products to the registrant or registered establishment. You also cannot distribute or sell these products for any other purposes, such as fulfilling prepaid orders or new requests from farmers or producers.
3. I’m a pesticide dealer or retailer that has commercial pesticide applicators, or I am an independent commercial pesticide applicator. Can I sell, distribute or apply affected products already in my possession? Yes, you may distribute or sell the affected products already in your possession ONLY for the purposes of:
• proper disposal, or to facilitate return to the registrant or a registered establishment under contract with the registrant
• using these products no later than the June 25, 2020, cutoff date. You can also fulfill prepaid orders or new orders from farmers.
In addition, commercial pesticide applicators may apply the affected products already in their possession, in accordance with the label.
4. I’m a farmer or producer who is a certified applicator. Can I use product already in my possession, or apply affected products I’ve already purchased but have not yet received? Yes, if you’re a certified applicator, you may apply product already in your possession; you can also apply product you have not yet received, if you bought it from a dealer or retailer that has commercial pesticide applicators.
5. Can ag retail businesses that provide custom application services sell to growers and custom-apply existing inventory? Yes, but only if the retail business has commercial pesticide applicators.
6. Can ag retail businesses that provide custom application services mix hot loads for their grower customers using existing inventory? Yes, but only if the retail business has commercial pesticide applicators.
7. Can businesses that are pesticide dealers only, and sell only packaged product or portable refillable containers, sell or distribute existing inventory to growers? No; without commercial pesticide applicators, those dealers can only distribute the products for the purposes of disposal or return to the registrant. They cannot distribute or sell these products for any other purposes, such as fulfilling prepaid orders or new requests from farmers.
8. Can private applicators (growers) who have product on hand prior to June 3 apply the product in accordance with the label? Yes.
9. If a grower prepaid for product but did not take delivery prior to June 3, can a retailer (custom application or pesticide dealer) deliver or custom-apply existing inventory to that grower? Yes, but only if the retail business has commercial pesticide applicators.
10. Can distributors ship product to retailers, growers or to other distributors after June 3? No. The only shipments that distributors can make are to distribute or sell the affected dicamba products for the purposes of proper disposal, or to facilitate return to the registrant or a registered establishment under contract with the registrant.
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