Update as of June 9, 2020
The Environmental Protection Agency (EPA) has issued a cancellation orderorder regarding the Ninth Circuit Court of Appeals' June 3, 2020 order to vacate three dicamba registrations -Xtendimax, Engenia, and FeXapan.The cancellation order lists limited and specific circumstances under which existing stocks of the three affected dicamba products can be used. According to the EPA, with limited exceptions, it is a violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for any person to sell or distribute these products as of June 3, 2020. As the designated agency for primary enforcement of FIFRA in South Dakota, the South Dakota Department of Agriculture (SDDA) will enforce the provisions of the cancellation order and comply with guidance provided by the EPA.
The cancellation order allows for disposition of any existing stock of Xtendimax, Engenia, and FeXapan already in possession of persons other than the registrant at the time of the June 3, 2020 order. The order also allows for limited distribution of existing stock of Xtendimax, Engenia, and FeXapan already in possession at the time of the June 3, 2020 order by commercial applicators and authorizes all other sale or distribution of existing stocks only to facilitate return to the manufacturer or for proper disposal. The cancellation order prohibits any use of existing stocks that is inconsistent with the previously-approved product labeling.
Update as of June 3, 2020
On June 3, 2020 the United States Court of Appeals for the Ninth Circuit issued a decision to immediately vacate the registration of three dicamba products (Xtendimax, Engenia and FeXapan). This unprecedented decision during the middle of the application season has had a devastating impact on many South Dakota producers.
The SDDA sent a letter to Secretary Wheeler urging the EPA to make their next steps quickly so that producers and state regulatory agencies may plan accordingly. The South Dakota Department of Agriculture (SDDA) is designated as the lead agency for the regulation of pesticide use and application, as well as licensing and training applicators, overseeing worker protection, and registering pesticides for sale in South Dakota. In this role, the SDDA must regulate the sale and use or these products in accordance with the vacatur of those product registrations. Until further guidance is provided by the U.S. Environmental Protection Agency (EPA) or the courts on the status of those product registrations, sale and use of those impacted products must be discontinued immediately.
The SDDA recommends that producers, dealers, and applicators use caution during this uncertain time as there may be exposure to civil liability and insurance coverage may be impacted. Visit sdda.sd.gov for accurate updates and information as the situation continues to evolve.