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Dicamba Availability in Question After Court Vacates Epa Registrations
Iowa Ag Connection - 02/08/2024

A federal court in Arizona on Tuesday vacated the 2020 registrations of three dicamba products previously approved by the EPA for over-the-top applications including XtendiMax, Engenia and Tavium. The court ruled the agency violated notice-and-comment mandates for new-use pesticide registrations.

The ruling in the U.S. District Court for the District of Arizona in Tucson effectively leaves farmers without dicamba products for the upcoming growing season pending action by the EPA.

"The court accepts that there are substantial benefits from OTT (over-the-top) dicamba for DT (dicamba-tolerant) crops (cotton and soybean) for weed control, especially for controlling weeds that are resistant to other herbicides or when there is no herbicide resistance, OTT dicamba affords flexibility in herbicide choices for rotating or mixing herbicides to manage weed resistance," the court said in its ruling.

"Defendants ignore that likewise the Ninth Circuit in NFFC (Monsanto) previously explicitly considered such effects and decided to vacate these OTT dicamba registrations. 'Being aware of the practical effects' of vacatur and 'difficulties these growers may have in finding effective and legal herbicides to protect their DT crops due to vacatur,' the court nevertheless found the seriousness of the agency error, including in part its failure to assess risks and costs for non-users of OTT dicamba compelled vacatur."

The court found the EPA's "circular approach to assessing risk, hinging on its high confidence that control measures will all but eliminate offsite movement, (led) to its corresponding failure to assess costs from offsite movement."

The restrictions implemented by the EPA failed, and dicamba continued to vaporize and drift, the court said.

The federal court found the EPA to be in violation of the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA.

DTN reached out to the registrants Bayer, BASF and Syngenta for comment on the ruling.

Bayer, the registrant for XtendiMax, offered the following statement: "The U.S. District Court in Arizona vacated the EPA's registrations for over-the-top dicamba products based on procedural grounds, finding that the EPA 'did not follow the FIFRA notice and comment provisions' when it issued the registrations. We respectfully disagree with the ruling against the EPA's registration decision and we are assessing our next steps. We also await direction from the EPA on important actions it may take in response to the ruling. Our top priority is making sure growers have the approved products and support they need to safely and successfully grow their crops. We will keep our customers updated as we learn more from the EPA in advance of the 2024 growing season."

BASF, the registrant for Engenia, said in a statement on Tuesday evening that it was assessing the court's ruling to determine the next steps.

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