A recent Arizona federal district court ruling has vacated the 2020 registrations for dicamba products used over the top in cotton and soybean production. The ruling is based on violations of federal law requiring the public to have an opportunity to comment on the proposed “new uses” in 2020. This ruling currently means for growers that these products might not be available for the 2024 growing season. Based on the ruling, we are waiting to determine what the defendants will do next. Update: On Feb. 14, the EPA issued an existing stocks order to allow for limited continued usage for the dicambas at issue for stocks no longer in control of the pesticide companies. A table of what is allowed is below; to read that order, click here.
Court’s Decision
This litigation stems from the registrations issued in 2020 and amendments made in 2022 and 2023 by the Environmental Protection Agency (EPA) for the “new use” over-the-top applications of dicamba products. At issue in this is did EPA violate the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA), the Endangered Species Act (ESA), and the Administrative Procedures Act (APA) when approving the “new use” registrations in 2020.
The court agreed with the plaintiffs that the 2020 registration was a “new use” because the 2016 and 2018 registrations had been vacated and canceled by an earlier court ruling. EPA had to treat the 2020 registration for over-the-top applications of dicamba products as a new use. This “new use” registration required the EPA to publish the 2020 registrations and allow the public to comment.
Because of the violations in issuing the 2020 registration for over-the-top use of dicamba products, the court turns to whether an exception should be granted to EPA to remand the registrations without vacatur. Vacatur is a Latin term meaning it is vacated. Based on the record, the court determines that vacatur is warranted and an exemption should not be granted. EPA had failed to consider many potential risks when assessing the new uses, and based on prior court rulings, it had effectively allowed the dicamba products on the market with no registrations since 2016.
What Does All This Mean?
We are currently back in a wait-and-see mode regarding whether dicamba will be available for over-the-top uses during the 2024 growing season. It is unclear at this time if EPA will appeal this ruling and request a stay while the Ninth Circuit is hearing the appeal. If the EPA does appeal and receive a stay, this will allow sales of dicambas used in over-the-top applications to continue. If EPA does not appeal, we could see what we did in 2020 with EPA canceling the registration based on a court ruling but allowing already purchased products to be used during the growing season.
One vital issue to note in all this is that Bayer (the parent company of Monsanto) in 2023 began to bring lawsuits claiming growers saved seeds for replanting the new Xtendimax technology. These are similar to those brought when growers would save Roundup Ready technology before the patent expired, but a few have one difference. Several lawsuits highlight that growers additionally violated patents by spraying dicambas that were unapproved for over-the-top applications. Why is it important to note this here? Many growers may assume that they can spray dicambas unregistered for over-the-top applications, but that can come with stiff penalties from state agencies and EPA and, at the same time, may open growers up to claims of patent violations.
Updated: Table from order highlighting what is allowed.
Niranjana Krishnan, Assistant Professor and Maryland Pesticide Education Coordinator | nkrish@umd.edu @umd.edu University of Maryland, College Park
In July 2023, the EPA posted 10 years (2013-2022) of pesticide incident data on its website. This was done to increase transparency and provide a better understanding of pesticide exposures, including exposures to vulnerable populations.
The published datasets allow users to access raw data on pesticide incidents such as the incident date, the reason for the report (e.g., adverse effect, product defect), and the severity of the incident. It may also include information on the location of the incident, the pesticide product, and a description of the incident. However, the EPA has not verified the raw data for accuracy or completeness.
The EPA received information on pesticide incidents from pesticide manufacturers, state regulators for pesticide enforcement, individual emails, the National Pesticide Information Center, and American Association of Poison Control Centers.
Prior to this, the EPA only provided incident information to the public when responding to requests under the Freedom of Information Act or as an incident summary during the pesticide re-registration process. The EPA will now update the data monthly going forward.
Below is a summary of reported pesticide incidents from Maryland (2013-2022).
Group
Incidents
Number of incidents
Pesticides involved
Humans
Mortality
3
Disinfectants hydrochloric acid and bleach and insecticide chlorfenapyr
Major effects1
10
Primarily, insecticides (mostly pyrethroids) and herbicides
Moderate effects2
160
Primarily, insecticides and disinfectants
Minor effects3
10
Primarily, insecticides and disinfectants
Domestic animals
Mortality
10
Insecticide fiprinol (with methoprene) and rodenticide bromethalin
Major effects1
3
Primarily, insecticides and rodenticides
Moderate effects2
9
Primarily, insecticides and rodenticides
Minor effects3
6
Primarily, insecticides and rodenticides
Wildlife
Major effects4
6
Insecticide carbofuran, rodenticide bromadiolone, and algicide copper
Today, EPA is issuing seven-year registrations for two herbicide products, Enlist Duo and Enlist One, to ensure growers have access to effective pesticide tools for the 2022 growing season. The new product labels, which incorporate robust control measures to protect non-target plants and animals, meet Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) standards and comply with the Endangered Species Act (ESA).
Enlist Duo and Enlist One are herbicides used to control weeds in conventional and genetically-modified corn, cotton, and soybean crops. Both products, registered in 2014 and 2017, respectively, were set to expire in January 2022 if the Agency did not renew their product registrations. Based on EPA’s thorough analysis of scientific data, evaluation of cost-benefit information, and discussions with industry stakeholders, the Agency has determined that Enlist products, with the new protective measures in place, should remain available to most American farmers.
To evaluate the proposed uses of the Enlist products, EPA evaluated the potential effects of these products on federally threatened or endangered (listed) species, and their designated critical habitats, and initiated ESA consultation with the U.S. Fish and Wildlife Service.
EPA determined that the use of Enlist Duo and Enlist One are likely to adversely affect listed species but will not lead to jeopardy of listed species or to the destruction or adverse modification of designated critical habitats. EPA also anticipates that the new protective measures will reduce the potential for “take.”
In addition to EPA’s effects determination, EPA also completed a comprehensive ecological risk assessment that assessed the risks of 2,4-D choline salt (2,4-D), an active ingredient in both Enlist products, and glyphosate dimethylammonium salt (glyphosate), an active ingredient in Enlist Duo.
EPA’s ecological assessment found direct risks to non-listed and listed plants from pesticide runoff (i.e., pesticide carried off the application site following rainfall or irrigation) and risks to animals that rely on these affected plants for diet or habitat, including non-listed and listed animals and some designated critical habitats. EPA’s ecological assessment also found direct effects to bees and listed species that use corn, cotton, and soybean fields for diet and/or habitat.
Based on these findings, EPA is requiring the implementation of a variety of protective measures as a condition of the product registrations. Some of the protective measures EPA is taking include:
Prohibiting Enlist product application when rainfall is expected to occur within 48 hours and when soil can no longer absorb water;
Prohibiting irrigation that would result in runoff within 48 hours of application of the Enlist herbicide products;
Requiring users to select from a list of runoff reduction measures to reduce 2,4-D and glyphosate concentrations in runoff, while also providing users with flexibility;
Minimizing Enlist product application when soybean and cotton crops are in bloom to reduce risks to insect pollinators, such as honey bees; and
Requiring the registrant to develop and provide mandatory education and training materials that emphasize the importance of pollinators and pollinator habitat for species including, but not exclusive to, monarch butterflies.
EPA will also be prohibiting the use of Enlist Duo and Enlist One in counties where EPA identified risks to on-field listed species that use corn, cotton or soybean fields for diet and/or habitat. EPA does not expect this measure to disrupt the use of Enlist products for most American farmers—the counties where use will be prohibited by these new measures represents approximately three percent of corn acres, eight percent of cotton acres, and two percent of soybean acres nationally.
The “likely to adversely affect” (LAA) determination means that EPA reasonably expects that at least one individual animal or plant, among a variety of listed species, may be exposed to the pesticide at a sufficient level to have an effect, which will be adverse. The LAA threshold for a Biological Evaluation (BE) is very sensitive because the likely “take” of even one individual of a species, which includes unintentional harm or death, triggers an LAA determination. This is the case even if a species is almost recovered to a point where it no longer needs to be listed. As a result, there is a high number of “may affect” and LAA determinations in these BEs. An LAA determination, however, does not necessarily mean that a pesticide is putting a species in jeopardy. Jeopardy determinations will be made by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service in the course of formal consultation that evaluates any effects of the pesticides on entire species.
To view the final registration for Enlist Duo and Enlist One, go to docket EPA-HQ-OPP-2021-0957.
To learn more about Enlist Duo and Enlist One, read EPA’s Q&A.
At the Cromley Farm, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced that EPA is approving new five-year registrations for two dicamba products and extending the registration of an additional dicamba product. All three registrations include new control measures to ensure these products can be used effectively while protecting the environment, including non-target plants, animals, and other crops not tolerant to dicamba.
“With today’s decision, farmers now have the certainty they need to make plans for their 2021 growing season,” said EPA Administrator Andrew Wheeler. “After reviewing substantial amounts of new information, conducting scientific assessments based on the best available science, and carefully considering input from stakeholders we have reached a resolution that is good for our farmers and our environment.”
Through today’s action, EPA approved new registrations for two “over-the-top” (OTT) dicamba products—XtendiMax with VaporGrip Technology and Engenia Herbicide—and extended the registration for an additional OTT dicamba product, Tavium Plus VaporGrip Technology. These registrations are only for use on dicamba-tolerant (DT) cotton and soybeans and will expire in 2025, providing certainty to American agriculture for the upcoming growing season and beyond.
To manage off-site movement of dicamba, EPA’s 2020 registration features important control measures, including:
Requiring an approved pH-buffering agent (also called a Volatility Reduction Agent or VRA) be tank mixed with OTT dicamba products prior to all applications to control volatility.
Requiring a downwind buffer of 240 feet and 310 feet in areas where listed species are located.
Prohibiting OTT application of dicamba on soybeans after June 30 and cotton after July 30.
Simplifying the label and use directions so that growers can more easily determine when and how to properly apply dicamba.
The 2020 registration labels also provide new flexibilities for growers and states. For example, there are opportunities for growers to reduce the downwind spray buffer for soybeans through use of certain approved hooded sprayers as an alternative control method. EPA also recognizes and supports the important authority FIFRA section 24 gives the states for issuing locally appropriate regulations for pesticide use. If a state wishes to expand the federal OTT uses of dicamba to better meet special local needs, the agency will work with them to support their goals.
This action was informed by input from state regulators, grower groups, academic researchers, pesticide manufacturers, and others. EPA reviewed substantial amounts of new information and conducted assessments based on the best available science, including making Effect Determinations under the Endangered Species Act (ESA). With this information and input, EPA has concluded that these registration actions meet Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) registration standards. EPA believes that these new analyses address the concerns expressed in regard to EPA’s 2018 dicamba registrations in the June 2020 U.S. Court of Appeals for the Ninth Circuit. Further, EPA concluded that with the control measures now required on labels, these actions either do not affect or are not likely to adversely affect endangered or threatened species.
To view the final registration of the dicamba products, visit docket EPA-HQ-OPP-2020 0492 at www.regulations.gov.
Amy Brown, Professor Emerita, Pesticide Education Coordinator University of Maryland, College Park
EPA is taking the next step in its regulatory review of paraquat dichloride (paraquat), a widely-used herbicide. As outlined in the proposed interim decision for paraquat, the agency is proposing new measures to reduce risks associated with paraquat in order to better to protect human health and the environment. These measures include:
Prohibiting aerial application for all uses and use sites except cotton
desiccation;
Prohibiting pressurized handgun and backpack sprayer application methods
on the label;
Limiting the maximum application rate for alfalfa to one pound of active
ingredient per acre;
Requiring enclosed cabs if area treated in 24-hour period is more than 80
acres;
Requiring enclosed cabs or PF10 respirators if area treated in 24-hour
period is 80 acres or less;
Requiring a residential area drift buffer and 7-day restricted entry
interval (REI) for cotton desiccation;
Requiring a 48-hour REI for all crops and uses except cotton desiccation;
and
In addition, EPA is proposing to allow truck drivers who are not certified applicators to transport paraquat when certain conditions are met. Upon publication of the Federal Register notice, public comments will be accepted for 60 days in docket # EPA-HQ-OPP-2011-0855 until December 22, 2020 at www.regulations.gov.
Amy E. Brown, Professor Emerita University of Maryland, Pesticide Safety Education Coordinator
US EPA has announced that after a thorough review of the best available science and carefully considering scientific peer review and public comments, the Agency has determined that certain mitigation measures are warranted for these three herbicides in order to address potential human health and ecological risk. Specifically, EPA is requiring the following
mitigation measures:
Reducing the maximum application rate for atrazine and simazine when used on residential turf in order to protect children who crawl or play on treated grass;
Adding a requirement for irrigation immediately after simazine application to residential turf;
Requiring additional personal protective equipment for workers who apply atrazine and simazine to reduce occupational risks associated with certain uses;
Finalizing label requirements for all three triazines to include mandatory spray drift control measures, to minimize pesticide drift into non-target areas, including water bodies;
Finalizing label directions for herbicide resistance to reduce the problem of weeds becoming resistant to atrazine.
Atrazine, propazine and simazine are widely used in the United States to control a variety of grasses and broadleaf weeds. Atrazine is an especially effective, affordable, and well-studied herbicide. Twelve meetings of the FIFRA Scientific Advisory Panel (SAP) were held to discuss various aspects of atrazine, including cancer and non-cancer effects, potential effects on amphibians, the aquatic plant community level of concern, and surface water monitoring methods. As the second most widely used herbicide in the United States, atrazine is used on about 75 million acres of agricultural crop land every year, including more than half of the Nation’s corn crops. Atrazine is also used on residential lawns and golf courses, particularly in the Southeast.
Background: EPA completes interim registration review decisions to impose interim risk mitigation measures necessary to protect human health and the environment, while the agency conducts additional assessments, typically an endangered
species assessment. For the triazines, EPA will next complete draft biological evaluations for atrazine, simazine, and propazine which are anticipated to be available for public comment in late Fall 2020. These evaluations are the first step in the interagency consultation process to protect listed species and their habitats under the Endangered Species Act. Final Endangered Species Determinations for each of the triazines are anticipated in 2021.
2020 has seen several challenges to pesticide registrations. Earlier in 2020, we saw vacaturs with dicamba registrations for three products. Recently the Ninth Circuit Court of Appeals found an error in the Enlist Duo’s registration details. The court sent the decision back to EPA to relook at the impact of Enlist Duo’s usage on milkweed in target areas. At this time, the product will not be removed from the market.
Background
Enlist Duo is a herbicide developed by Dow Agrosciences which combines 2,4 dichlorophenoxyacetic acid (2,4-D) and glyphosate to improve upon delivering both chemicals separately. In late 2014, the U.S. Environmental Protection Agency (EPA) issued a final order registering Enlist Duo under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and approved the registration of the herbicide again in 2015.
In early 2017, EPA issued another registration decision on Enlist Duo based on claims Dow had made in a patent application. In this registration, EPA approved the use of the herbicide in 34 states for corn and soybeans, approved as a new use for cotton in the same 34 states, and reaffirmed prior registrations in 2014 and 2015. EPA registered the product on a conditional basis but appeared to cite standards related to unconditional registration. These registrations were challenged by groups before the Ninth Circuit Court of Appeals, claiming EPA had applied the wrong standard when registering the herbicide and did not properly assess the harm the herbicide could cause on the monarch butterfly under the Endangered Species Act (ESA).
Registration Under FIFRA
National Family Farm Coalition, Family Farm Defenders, Beyond Pesticides, Center for Biological Diversity, Center for Food Safety, and Pesticide Action Network North America claim that EPA used the wrong standard in originally approving Enlist Duo back in 2104; the group contends that EPA used the more lenient “conditional” registration standard instead of a more stringent “unconditional” registration standard. An unconditional registration of a pesticide requires EPA to review all relevant data available and determine no additional data is needed to make a decision. When reviewing the relevant data for an unconditional registration, EPA must determine the pesticide will not generally cause any unreasonable adverse effects on the environment when used according to widespread and commonly recognized practices.
A conditional registration or amended registration allows for use of the pesticide in special circumstances. To conditionally register or amend an existing registration, EPA must determine if the data submitted by the applicant is satisfactory, pertains to the proposed additional use, and would not present a significant increase in the risk of any unreasonable adverse effect on the environment. At the same time, when an active ingredient has already been registered, EPA takes the view that a complete review of existing data will use the criteria for conditional registration. In this case, Enlist Duo would include two active ingredients of glyphosate and 2,4-D and EPA only needed to complete a review of the existing data for those two active ingredients.
The Ninth Circuit found the claims that EPA incorrectly applied the wrong standard, conditional instead of unconditional, to be unpersuasive. First, the group raising the claim had never raised it during the administrative process and was viewed to have waived the argument. Although the court viewed this claim as waived, the court still reviewed the arguments raised. The Ninth Circuit rejected this argument.
The court also rejected arguments that EPA failed to look specifically at potentially unreasonable adverse impacts on the environment from increased glyphosate. EPA argued and the court agreed that FIFRA allows for an ingredient-by-ingredient review. EPA can do a review similar to the approved prior usage covering whether the proposed use will significantly increase any unreasonable adverse effect on the environment. The court found substantial evidence to support EPA’s approval of the usage of glyphosate in Enlist Duo. The court also rejected claims that EPA had failed to properly consider the 2,4-D’s volatility. The court found no evidence to demonstrate EPA reached the wrong conclusion. Finally, the court rejected arguments that EPA should have considered the potential synergistic effect of mixing Enlist Duo with glufosinate. The court found no evidence in the record of this happening during the past five years the product was on the market, and that EPA can do a review of the pesticide product when it becomes necessary.
The court then turned to claims EPA lacked substantial evidence for 2014, 2015, and 2017 which account for the impact of increased usage of 2,4-D on milkweed and the harm it would have on monarch butterflies. The plaintiffs argued that EPA failed to assess the risks of 2,4-D use in destroying milkweed in target fields. EPA acknowledged it did not consider this, and the court rejected EPA’s arguments for not looking at the potential harm to milkweed on target fields to determine if such an impact would be unreasonable.
Finally, the court rejected all of the ESA claims brought by the plaintiffs. The court found that EPA finding no effect for plants and animals was not arbitrary, capricious, or contrary to the law based on the assessments done by EPA. According to the court, the agency followed the law in reviewing the claims under the ESA.
Because the court found an error in the registration decision, it had to determine the appropriate remedy. The court could either vacate the registration, as it did in the dicamba-based herbicide decision earlier in the year, or remand to the agency for better reasoning required under FIFRA. The court went with remanding to the agency and vacating the registration.
Currently, the registration is still before EPA for further analysis of the increased usage of 2,4-D on target areas impacts on milkweed. The product will continue to be on the market and available for growers to utilize. To learn more about this issue, check out this blog post from Brigit Rollins with the National Ag Law Center.
Kelly Hamby and Galen Dively University of Maryland, Department of Entomology
Insect Resistance Management in Bt Crops: Transgenic crops expressing insecticidal toxins sourced from Bacillus thuringiensis (Bt) bacteria reduce yield loss and insecticide use, delivering economic benefits for growers. Because this breakthrough in pest management is considered a public good and insect resistance is the largest threat to Bt crops’ durability, insect resistance management programs were developed and mandated by the EPA prior to the release of Bt crops. These plans included planting untreated refuge crops at high enough acreage to produce many susceptible adult insects that could interbreed with and dilute the resistance from insects surviving Bt crops (Figure 1).
Figure 1. Susceptible (white) corn borers emerge from the untreated block refuge (yellow) planted on the side of the Bt field (green). Resistant (red) corn borers emerge from the Bt field (green) and interbreed with susceptible moths to produce moths with diluted (white and red) resistance genes.
In addition, crops were supposed to express Bt toxins at a high enough dose that insects with diluted resistance genes (white and red) would be killed, called a “high dose” strategy. Finally, pyramided hybrids that contain multiple toxins targeting the same pest were developed to make it more difficult for pests to overcome the toxins. EPA also required monitoring for insect resistance and mitigation strategies to implement once resistance was detected.
The Issue: When best management practices for Bt insect resistance management are followed, for example, European corn borer (Ostrinia nubilalis) management in the U.S., resistance development has been slowed. In fact, all single and pyramided Bt traited corn hybrids still provide 100% control of corn borers. However, for some pests [corn earworm (Helicoverpa zea) and Cry toxins] Bt toxins were less effective and products were not high dose. This issue was further compounded by poor refuge compliance, which lead to the development of refuge-in-a-bag (RIB) seed mixes to increase refuge acreage. This technology was designed based on corn rootworm biology and is not as good as a separate block refuge for most other target pests. Finally, while pyramided multi-toxin hybrids were developed, hybrids that contained a single effective toxin for the management of some pests continued to be marketed. This enables insects to develop resistance to a single toxin first providing a “stepping stone” to resistance in pyramided hybrids that contain the same or similar toxins because they can already survive on some of the toxins that are being expressed. In addition, the same Bt toxins are used in both corn and cotton, so corn earworm (also known as bollworm) goes through multiple generations of selection pressure in the same year, increasing resistance. Reports of caterpillar pests resistant to Bt corn and cotton in the U.S. have occurred since 2014 for fall armyworm, since 2016 for corn earworm, and since 2017 for western bean cutworm. However, none of these resistance reports triggered EPA’s current regulatory definition of pest resistance and no mitigation actions were taken. Therefore, the EPA released a draft document outlining proposed changes to reduce resistance risks (especially for non-high dose pests at heightened risk of resistance), to increase the longevity of currently functional Bt traits and future technologies, and to improve the current caterpillar pest (Lepidopteran) resistance management program for Bt corn and cotton (USEPA 2020).
Proposed Changes: Changes build off current insect resistance management plans and incorporate feedback and recommendations developed by a July 2018 Scientific Advisory Panel, independent academic scientists, the Agricultural Biotechnology Stewardship Technical Committee, the National Alliance of Independent Crop Consultants, and Syngenta Crop Protection, LLC (USEPA 2020). The EPA has 1) confirmed Bt resistance to specific Bt toxins in corn earworm, fall armyworm, and western bean cutworm, 2) proposed a new resistance definition for non-high dose pests that acknowledges their heightened risk of resistance and enables more rapid response to unexpected injury, 3) proposed a resistance monitoring approach that will use sentinel plots to monitor unexpected injury in addition to reported cases of unexpected injury in Bt crops, 4) proposed an improved resistance mitigation strategy with best management practices to respond to unexpected injury within the growing season and moving forward, and 5) will continue to require reporting on refuge compliance, unexpected injury, and insecticides targeting the pests that are also targeted by Bt (USEPA 2020).
Changes Under Discussion: In addition to the above changes, three additional changes have been proposed that require further discussion and stakeholder comment (USEPA 2020). The first focuses on reducing the acreage of products that no longer effectively manage resistant caterpillar pests and that share or have similar toxins as multi-toxin pyramided hybrids that still provide control. Therefore, the EPA is proposing a short term (~ 3 year time frame) phase down of hybrids that contain a single toxin for control of caterpillar pests, capping acreage planted in these hybrids to a minimum. These include field corn (Table 1), sweet corn (Table 1), and cotton products. In addition, non-functional pyramids that do not contain effective toxins for control of resistant caterpillar pests would have a longer term (~ 5 year time frame) phase down to minimal acreage (Table 2). Even with the potential phase downs Cry toxins will still be available for planting in pyramided hybrids that include the Vip3A trait.
To improve refuge compliance nationwide, the EPA proposes to increase refuge-in-the-bag (RIB) seed blend technologies to 10% refuge and maintain current requirements to plant a separate 20% block refuge in cotton producing areas (USEPA 2020). This should help insect resistance management for all pests managed by Bt and may be especially important for pests at heightened risk of developing resistance.
To further increase refuge compliance, especially in cotton producing areas, additional strategies have been proposed. For example, sale of Bt corn products requiring block refuge must be followed up with mandatory on-farm visits [conducted by industry (registrants)] to assess refuge compliance during the growing season, which will be conveyed to growers at the point of sale and be included in the grower insect resistance management agreement (USEPA 2020). Visits will be reported to the EPA. Farmers out of compliance with block refuge standards in cotton producing regions for one year will not be allowed to purchase Bt products, including RIB and block refuge products, for two years. Seed dealers will be required to keep grower IRM agreement records for 3 years, with audits that could result in losing the opportunity to sell Bt seed if signature rates or record keeping are noncompliant [conducted and enforced by industry (registrants)]. The industry (registrants) must ensure the availability of non-Bt elite corn hybrids for refuge plantings (USEPA 2020), which should improve the quality and yield of these plantings.
Potential Impacts to Mid-Atlantic Seed Dealers and Growers: Phase downs of single toxin and non-functional pyramid hybrids will impact hybrid availability and selection; however, these toxins (which control corn borers) will be available pyramided with Vip3A. If you are planting hybrids that require 20% block refuge (such as is the case with the single traited hybrids that are being phased out), a mandatory on-farm visit by the registrants and/or seed dealers may be required. Non-Bt elite corn hybrids will have to be made available for block refuge and refuge-in-a-bag seed mixes which should make yield more comparable to Bt plants.
US EPA. 2020. EPA draft proposal to address resistance risks to Lepidopteran pests of Bt following the July 2018 FIFRA scientific advisory panel recommendation. Memorandum EPA-HQ-OPP-2019-0682-0007. https://www.regulations.gov/document?D=EPA-HQ-OPP-2019-0682-0007
Agricultural workers and pesticide handlers directly support the nation’s agricultural production and food supply and EPA is committed to ensuring they are protected from workplace hazards.
EPA has released guidance regarding the annual pesticide safety training requirements outlined in the Agricultural Worker Protection Standard (WPS) that offers flexibility during the COVID-19 public health emergency.
The Agency is aware that COVID-19 may make it difficult for agricultural employers and handler employers to provide WPS pesticide safety training or hire agricultural workers and pesticide handlers who have been trained in the last 12 months, as required by the WPS.
In response, the guidance aims to inform agricultural employers and handler employers of flexibilities available under the WPS to allow continued protection for employees and agricultural production:
EPA encourages in-person training if workplace protections to maintain a healthy work environment are able to be implemented. For example, an employer may be able to provide pesticide safety training outside, in smaller than usual groups with well-spaced participants.
Alternatively, WPS training can be presented remotely, provided all WPS training requirements are met.
The employer is ultimately responsible for ensuring the training meets all requirements outlined in the WPS. For example, the training must still be presented in a manner the trainees can understand, in an environment reasonably free from distractions, and cover the full training content using EPA-approved training materials.
Once the training ends, the employer must document successful completion under a qualified trainer.
WASHINGTON (June 8, 2020) — Today, the U.S. Environmental Protection Agency (EPA) issued a key order providing farmers with needed clarity following the Ninth Circuit Court of Appeals’ June 3, 2020 vacatur of three dicamba registrations. Today’s 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. “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.
Background
On June 3, 2020, the Ninth Circuit Court of Appeals issued an order vacating EPA’s pesticide registrations containing the active ingredient dicamba: Xtendimax with Vaporgrip Technology (EPA Reg. No. 524-617); Engenia – (EPA Reg. No. 7969-345); and FeXapan – (EPA Reg. No. 352-913).
Dicamba is a valuable pest control tool that farmers nationwide planned to use during the 2020 growing season. Since the Court issued its opinion, the agency has been overwhelmed with letters and calls from farmers citing the devastation of this decision on the millions of acres of crops, millions of dollars already invested by farmers, and threat to America’s food supply.
