On June 3, 2020, in National Family Farm Coalition vs. U.S. Environmental Protection Agency, Case No. 19-70115, the United States Court of Appeals for the Ninth Circuit issued a ruling immediately vacating the registrations of Xtendimax, FeXapan and Engenia, all of which contain the herbicide dicamba. On June 8, 2020, the U.S. Environmental Protection Agency (EPA) issued a final cancellation order for these three dicamba products. The final cancellation order can be found here: https://www.epa.gov/sites/production/files/2020-06/documents/final_cancellation_order_for_three_dicamba_products.pdf.
The EPA’s final cancellation order outlines limited and specific circumstances under which existing stocks of the three affected dicamba products may be used. Pursuant to the final cancellation order, existing stocks are those which are currently in the United States and which were packaged, labeled, and released for shipment prior to the time of the vacatur order on June 3, 2020. The EPA’s order permits use of existing stocks of Xtendimax, FeXapan, and Engenia as follows:
a. Distribution or sale by the registrant. Distribution or sale by the registrant of all existing stocks is prohibited effective as of the time of the order on June 3, except for distribution for the purposes of proper disposal.
b. Distribution or sale by persons other than the registrant. Distribution or sale of existing stocks that are already in the possession of persons other than the registrant 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.
c. Distribution or sale by commercial applicators. Distribution or sale of existing stocks that are in the possession of commercial applicators is permitted.
d. Use. Use of existing stocks inconsistent in any respect with the previously-approved labeling accompanying the product is prohibited.
Use of existing stocks of these products must be consistent with the previously-approved labeling. All conditions of IDOA’s registrations under section 24(c) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) remain in effect, including the prohibition of applications when the forecasted temperature exceeds 85 degrees. However, the June 20, 2020 application cutoff date has been extended to June 25, 2020.