Pesticides: EPA Cancellation Order on Dicamba, Distribution Ceases, Use Ends July 31

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ChemicalThe EPA has issued its cancellation order pursuant to the 9th Circuit ruling last week ordering the delisting of three restricted use Dicamba products, Xtendimax with Vaporgrip Technology (EPA Reg. No. 524-6 17), FeXapan (EPA Reg. No. 352-9 13), and Engenia (EPA Reg. No. 7969-345). The cancellation order prohibits any distribution, sale, or use of these products. Some questions following the ruling centered on use of existing stocks, and state registration status (including North Carolina). Existing stocks are defined by EPA’s “existing stocks policy” as set by federal regulation (56 FR 29362, June 26, 1991) as those stocks of the formerly registered pesticide products which are a) currently in the United States and which were b) packaged, labeled, and released for shipment prior to the time of the order (June 3, 2020)

As to existing stocks, below are particulars of the cancellation order:

a) Distribution or sale by the registrant. Distribution or sale by the registrant of all existing stocks of the products listed below is prohibited effective as of the time of the order on June 3, except for distribution for the purposes of proper disposal. Manufactured and label dicamba products not yet shipped will remain with the manufacturer.

b. Distribution or sale by persons other than the registrant. Distribution or sale of existing stocks of the products that are already in the possession of persons other than the registrant (i.e. the manufacturer) 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. Chemical dealers with existing stocks may no longer sell to farmers, but will be disposing the stocks. It is unclear who will bear the cost fo disposal.

c. Distribution or sale by commercial applicators. For the purpose of facilitating use no later than July 31, 2020, distribution or sale of existing stocks of products listed below that are in the possession of commercial applicators is permitted. In other words, if a chemical dealer is also a commercial applicator (providing application services to farmers), the dealer/commercial applicator may continue to distribute. A “commercial applicator” is defined by FIFRA also to include private applicators, meaning a farm operator licensed to direct the application of restricted use registered products to grow crops. Farmers will not be able to pick up pre-paid orders of the de-registered products from a dealer that is not also a commercial applicator (i.e. simply picking chemical up from the dealer for their own application).

d. Use. Use of existing stocks of the de-registered products inconsistent in any respect with the previously-approved labeling accompanying the product is prohibited. All use is prohibited after July 31, 2020. (In other words, use of the chemicals is still per the “law of the label,” and weather restrictions will still need to be observed even in the short use window.)

A Closer Look at the Cancellation Order. The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) states that “no person in any State may distribute or sell to any person any pesticide that is not registered [with the EPA pursuant to FIFRA]. (7 U.S.C. § 136a(a)) However, there is no corresponding language in FIFRA prohibiting the use of a pesticide that is not registered, only that FIFRA makes it a violation of FIFRA for any person to “use any registered pesticide in a manner inconsistent with its labeling.” (7 U.S.C. §136j(a)(2)(G)). So technically, a user of the delisted pesticide is no longer bound by the label, including its weather restrictions. To that end, FIFRA – per 7 U.S.C. § I 36d(a)(l) – authorizes EPA to issue an order to direct distribution and use of existing stocks of a delisted chemical, and the EPA has done so with this order.

Note that EPA may strictly limit use in this circumstance when it determines there is signifiant risk in continuing use of the pesticide. The 9th Circuit Ruling ordered the de-registration due to deficiencies in the EPA’s process of approving – albeit on an interim basis – the manufacture and use of these pesticides. The ruling did not identify – based on the record before it – a significant risk, and the order to EPA did not concern such risk. For implementing the 9th Circuit Ruling, EPA is thus able to make a case determination on the fate of the already manufactured (existing stocks) products, and weighs a number of factors in doing so, resulting in the existing stocks directive above. Factors that go into this decision are set by regulation, and are:  1) the quantity of existing stocks at each level of the channels of trade; 2) the risks resulting from the use of the existing stocks; 3) the benefits resulting from the use of such stocks; 4) the financial expenditures users and others have already spent on existing stocks; 5) the risks and costs of disposal or alternative disposition of the stocks; and 6) the practicality of implementing restrictions on distribution, sale, or use of the existing stocks. (see 56 Fed. Reg. at 29364). Given the ubiquitous use of Dicamba products, these six factors were considered as follows:

  1. The quantity of existing stocks at each level of the channels of trade. As of June 5, EPA had gathered data to estimate there were roughly 4 million gallons of the Dicamba products in the channels of trade.
  2. The risks resulting from the use of the existing stocks. As noted above, the 9th Circuit ruling did not concern whether the use restrictions on the registered labels created a risk. The decision only concerned whether the registration decision fell short of the criteria required by FIFRA.
  3. The benefits resulting from the use of existing stocks. Given that this decision comes during the growing season, with plants emerging, it impacts the match between chemical and seed variety in which many farmers have invested. Without a weed solution, farmers are facing early emerging pigweed (Palmer amaranth) and marestail (Conyza canadensis) with no practical means of control.
  4. The financial expenditures users and others have already spent on existing stocks.  Estimates provided to the EPA indicated expenditures in the hundreds of millions of dollars, not just in chemical purchase but also decisions and expenditures on seed and field preparation. For example, the National Cotton Council of America estimated “value” losses of $400 million. The National Soybean Association noted an initial investment loss of “hundreds of millions” and crop loss in the billions.
  5. The risks and costs of disposal or alternative disposition of the stocks. The EPA noted the dangers and costs of disposal and potential spillage from already opened containers favors use (up to July 31) rather than dispose of the entirety of the existing stock.
  6. The practicality of implementing restrictions on distribution, sale, or use of the existing stocks. EPA noted concern and costs of ensuring compliance at the use-end of the distribution chain, in that it would be difficult to ensure that farmers who already have purchased and taken delivery of existing stocks would either be aware of a cancellation order issuing new use restrictions or comply with such restrictions (i.e. not already evident on the label). EPA felt is was sufficient to “wind down” use of the unregistered dicamba products at the point of distribution (which of course ceased as of June 3).

In short, growers who have already purchased and taken delivery of the unregistered dicamba products may use them – according to the existing label – until July 31, 2020. Farm operators will not be able to purchase any additional product as of June 3, 2020.