Tag: xtend

Back in a Wait-and-See Mode With Recent Dicamba Ruling

Paul Goeringer, Extension Ag Law Legal Specialist
University of Maryland

The article is not a substitute for legal advice. Reposted from the Ag Risk Management Blog

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.

References 

Ctr. for Biological Diversity, et al. v. U.S. Envtl. Prot. Agency, No. CV-20-00555-TUC-DCB, 2024 WL 455047 (D.Ariz., Feb. 6, 2024).

Annual Dicamba Training Resources

For states that allow Bayer training, a self-guided computer based training option will be available January 2021. Please check-in at RoundupReadyXtend.com/training for availability.

Also, live Webinars will be led by authorized trainers. Trainees MUST sign-up/pre-register to attend a live webinar.

Herbicide Updates

Kurt Vollmer, Extension Weed Management Specialist
University of Maryland

On September 28, Bayer announced that the European Commission has authorized XtendFlex soybean technology for food, feed, import and processing in the European Union. XtendFlex soybeans have tolerance to glyphosate, glufosinate, and dicamba. With this approval, Bayer expects a full launch in the United States and Canada in 2021. However, no dicamba-containing products are currently registered for over-the-top applications in soybean. Previously registered dicamba products including Xtendimax, Engenia, FeXapan, and Tavium are still pending re-registration for use next season.

Over 300 agricultural organizations recently sent a letter (http://wssa.net/wp-content/uploads/Neguse-Udall-FIFRA-letter.pdf) to members of the House and Senate opposing legislation that would drastically amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

For more information on H.R. 7940 and S.4406 (the Protect America’s Children from Toxic Pesticides Act of 2020) visit https://www.congress.gov/bill/116th-congress/house-bill/7940/text?r=7&s=1.

To send a letter to your lawmakers opposing the current legislation visit https://www.votervoice.net/CropLifeAmerica/campaigns/77203/respond.

EPA Offers Clarity to Farmers in Light of Recent Court Vacatur of Dicamba Registrations

EPA press release

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.

  1. Distribution or sale by any person is generally prohibited except for ensuring proper disposal or return to the registrant.
  2. 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.

Contact Us to ask a question, provide feedback, or report a problem.

2019 Dicamba Update

Erika Crowl, Agriculture Agent Associate
University of Maryland Extension, Baltimore County

Herbicide-damaged soybeans from dicamba drift
Example of damage when a label rate of 1pt/ac of the herbicide Clarity drifted on to non-tolerant soybeans. Image: Matt Morris, University of Maryland.

In October 2018, the U.S. Environmental Protection Agency (EPA) approved revised labels for Engenia (EPA Reg. No. 7969-345), FeXapan (EPA Reg. No. 352-913), and Xtendimax (EPA Reg. No. 524-617). While the EPA revised labels, they also announced the registration extension on dicamba for two years for “over-the-top” use on dicamba tolerant cotton and soybean plants.

Changes for 2019:

  • Only certified applicators may purchase and apply dicamba; no longer may those working under the supervision of a certified applicator may make applications.
  • For the 2019 growing season and each season thereafter, all applicators must complete the annual dicamba training provided by one of the registrants of a dicamba product approved for in-crop use with dicamba-tolerant crops.
  • Post- emergent dicamba treatments must be applied prior to 45 days after soybean planting, or R1 stage, whichever comes first.
  • Applications will be allowed only from 1 hour after sunrise to 2 hours before sunset.
  • In counties where endangered species may exist, the downwind buffer will remain at 110 feet. There will also be an additional 57-foot buffer required around the sides of the field. For a list of counties requiring additional protection measures check out the EPA endangered species website.

Records must be generated within 72 hours of application instead of 14 days. Must also include planting date on records. Record keeping forms for Engenia, FeXapan, and Xtendimax may be found online on the product website.

Please note this is not a comprehensive list of label changes for each dicamba product. I would encourage all applicators to read in detail all requirements on each specific product label. To find local dicamba trainings, please consult your local extension agent or Maryland residents may take the online training

Proper Stewardship by Growers is Essential to Ensuring Dicamba Tolerant Soybeans Continue to be Available

By Matt Morris, Agriculture Extension Educator
University of Maryland Extension, Frederick County

Dicamba tolerant soybeans, marketed under the trade name Roundup Ready 2 Xtend soybeans, are again available to  Maryland growers for the 2018 growing season. This line of soybeans will combine previous Roundup Ready technology with tolerance to the herbicide dicamba.

While this new dicamba tolerance may be useful in combating certain tough-to-control weeds, including marestail and palmer amaranth, use caution when applying dicamba. Applications of dicamba may cause problems due to the sensitivity of certain crops to the herbicide. Exposure can occur due to drift, volatility, or a non-target application.

Below are some recommendations to consider when using new dicamba-tolerant technologies.

  • Dicamba type:

The only dicamba products that will be approved for in-crop use with Xtend soybeans will be XtendiMax from Monsanto, FeXapan from Dupont, and Engenia from BASF. These are lower volatility formulations than other dicamba products and are designed for dicamba-tolerant soybeans. These products will be classified as restricted-use pesticides for 2018 and all users must take dicamba or synthetic auxin herbicide training prior to purchasing these products.

  • Know the location of sensitive crops:

Talk with your neighbors and know where crops such as tomatoes, grapes, alfalfa, and non-tolerant soybeans are located. Engenia includes woodlands and native vegetation as sensitive crops; any broadleaf cash crop is listed as a sensitive crop in the XtendiMax label. This information will help you decide whether to use dicamba near these crops, especially if a prevailing wind will cause drift in their direction.

In addition, you should maintain buffer zones of 110 feet (220 feet if a 22 oz/ac rate is exceeded), between dicamba application sites and sensitive crops. The two websites below contain a (incomplete) list of some sensitive crops in your area:

http://maryland.maps.arcgis.com/apps/OnePane/basicviewer/index.html?appid=a4e2153518d04317bbac79702aafcd53

www.driftwatch.org

  • Rates:

Engenia – Dicamba tolerant soybeans – maximum of 12.8 fl oz/application and 51.2 oz/season.

FeXapan and XtendiMax – Dicamba tolerant soybeans – maximum of 44 fl oz/pre-plant application, 22 fl oz/post-emergence application, and a maximum of 88 fl oz/season.

  • Nozzle selection:

Engenia – Only TTI11004 and TTI11005 are currently approved.

FeXapan and XtendiMax – Apply large droplets with specific nozzles. Do not use flat fan nozzles that produce driftable fines. Use TTI11004 or nozzles listed on the EPA-mandated product websites.

  • Tank mix partners and water conditioning:

Ammonium sulfate (AMS) CANNOT be mixed with the new dicamba formulations. AMS is commonly used as a water conditioning agent for glyphosate applications. Adding AMS will increase the volatility of dicamba. Also, certain spray adjuvants and herbicide tank mix partners are not compatible with the new dicamba formulations.

Lists of approved tank mix partners can be found at:

http://www.xtendimaxapplicationrequirements.com/Pages/default.aspx

http://agproducts.basf.us/campaigns/engenia/tankmixselector/

http://www.dupont.com/products-and-services/crop-protection/soybean-protection/articles/fexapan-tank-mix-partner.html

  • Recordkeeping:

For the 2018 season, recordkeeping will be mandatory when applying dicamba in-crop on soybeans. Specific recordkeeping requirements will vary between the three approved, in-crop dicamba products, so always consult the label. However, it is recommended you always record wind speed and direction, air temperature, humidity, location of the application, product(s) used, rate, crop being treated, pests being targeted, and total product amounts used, among other information. Proper recordkeeping can provide essential evidence in the event of herbicide damage to a non-target crop.

  • Wind speed, temperature, and temperature inversions:

The optimal wind speed for applying the new dicamba products is 3-5 mph. Applications are prohibited when wind speeds are above 10 mph.

As the temperature increases, so does the volatility of dicamba. Use caution when applying dicamba products in hot, humid weather.

Take caution when wind speeds are below 3 mph, since this could indicate the presence of a temperature inversion. This phenomenon occurs when the temperature, which normally decreases with height in a thin layer of the atmosphere, increases with height. Inversions are another cause of vapor drift. Other indicators of a temperature inversion include low-hanging smoke or dust, morning fog or frost, clear and still nights with little to no cloud cover, and ground temperatures cooler than early morning air temperatures.

  • Multiple applications and weed height:

Multiple herbicide applications with the same mode of action within a single season selects for herbicide resistance. Avoid using dicamba on tolerant soybeans more than once in a season. If possible, a pre-emergence herbicide should be applied before or at planting. It is also important to remember that weeds should be targeted at 4” of height or less for successful control.

  • Application suggestions:

Keep ground speeds below 15 mph and nozzle pressures as low as possible to maintain the desired application rate. Boom height should be no more than 24” above the crop or weed canopy. If a weed is 4” tall, boom height should not exceed 28.”

  • Most importantly:

ALWAYS READ AND FOLLOW PESTICIDE PRODUCT LABELING. It is a violation of Federal and state law to use any pesticide product in a manner inconsistent with its labeling.

Approval of dicamba-tolerant soybeans by the U.S. Environmental Protection Agency will run until the end of 2018. At that point, they will consider whether to renew approval based on the number of problems that occur as a result of this new technology.

If you have questions regarding the use of dicamba tolerant soybean technology or dicamba, please contact Matt Morris @ 301-600-3578 / mjmorris@umd.edu or your local Extension office for more information.

Dicamba Changes for 2018:

  1. Classified as a restricted use pesticide that only certified pesticide applicators can purchase.
  2. Anyone applying these products MUST receive dicamba or auxin-specific training.
  3. Applications can ONLY be made between sunrise and sunset.
  4. Recordkeeping is mandatory. Refer to the individual labels for exact recordkeeping requirements.
  5. All applications cannot be done when wind speeds exceed 10 mph (down from 15 mph).
  6. Record of compliance with spray system cleanout is mandatory.
  7. Labels have enhanced language about susceptible crops. This includes non-dicamba-tolerant soybeans.
Herbicide-damaged soybeans from dicamba drift
Figure 1. Example of damage when a label rate of 1pt/ac of the herbicide Clarity drifted on to non-tolerant soybeans.