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Proposed Changes to Dicamba

ROCKVILLE, Md. (DTN) -- EPA referenced potential label changes coming to over-the-top dicamba herbicides for the 2023 growing season, in a court document filed by the agency on May 16.

According to the agency, Bayer submitted a proposed amendment to the 2020 registration of its XtendiMax herbicide to EPA on March 18. It involves "additional use restrictions" for counties where certain federally listed threatened or endangered species are present.

"... Bayer supported its request with several studies conducted during the 2021 growing season and with other analyses," EPA said in the document, which was filed in the U.S. District Court for the District of Arizona, where EPA is currently facing a lawsuit over its 2020 dicamba registrations.

In an emailed statement to DTN, Bayer stated that: "Our proposed amendments are meant to address the EPA's stated concerns about protecting endangered species in certain counties in the U.S. We are examining all actions we can to ensure that this important tool remains available for our customers."

EPA has nine months from the date of Bayer's submission to consider these label restrictions, which would mean a decision should be made by December 2022.

Other dicamba registrants -- unnamed in the filing -- have informed EPA they "may propose alternative restrictions on (over-the-top) dicamba use prior to the 2023 growing season," as well, EPA added. At this time, the only other registrants actively selling over-the-top dicamba herbicides are BASF (Engenia) and Syngenta (Tavium).

BASF said in an emailed statement that the company has not made a decision on proposing alternative restrictions to its Engenia herbicide. At the time of posting, Syngenta had not responded to requests for comment.

This court filing was prompted by Arizona District Court judge, David C. Bury, asking EPA to clarify its plan for dicamba regulation in 2022 and beyond, in an effort to determine if he should lift a stay and let the lawsuit proceed. The plaintiffs, environmental groups led by the Center for Food Safety and Center for Biological Diversity, are asking the district court to vacate EPA's 2020 dicamba registration entirely, based on its risks to the environment and endangered species.

See more on that case and its progress here: https://www.dtnpf.com/….

STAYING THE COURSE IN 2022 -- UNLESS A COURT SAYS OTHERWISE

In the same filing, EPA stated that the agency's only changes to 2022 dicamba use will be the state-specific cutoff dates and temperature restrictions issued for Minnesota and Iowa back in March. (See more here: https://www.dtnpf.com/….)

However, all dicamba herbicides are undergoing the re-registration review process that all pesticides cycle through every 15 years. The agency said it expects to deliver a draft risk assessment for dicamba herbicides -- including the three over-the-top ones -- by the end of June 2022, with a proposed interim registration decision in 2023. Those decisions could include "new or interim risk mitigations," the agency noted.

For now, the agency stated that it will monitor the use of the three over-the-top dicamba herbicides in 2022. "Over the course of the 2022 growing season and until the 2020 Registrations lapse following the 2025 growing season, EPA will continue to engage with federal, state, and local partners -- including university agricultural scientists -- and will remain in close communication with state departments of agriculture about any concerns related to the use of dicamba-based products," the filing stated. "EPA will also continue to review information on adverse effects contained in the reports that registrants are required to submit under the terms of the 2020 Registrations. And the Agency, in coordination with the states, will likewise monitor applicators' compliance with training and reporting requirements included as terms in the 2020 Registration."

In the past, EPA officials have stated that they are not sure they can defend the 2020 dicamba registration in court, due to potential risks to endangered species. The agency released a report in December 2021 detailing its analysis of large numbers of off-target dicamba injury cases, which environmental groups promptly included in the record in the Arizona District Court case. See more here: https://www.dtnpf.com/….

Now Bury will decide how to proceed with the case. Among his options is keeping the case stayed while he waits for other dicamba-focused litigation to play out in the U.S. Circuit Court of Appeals for D.C. or lifting the stay and hearing from EPA and environmental groups on whether to vacate the 2020 dicamba registrations.

See more on the dicamba lawsuits facing EPA here: https://www.dtnpf.com/… and here: https://www.dtnpf.com/….

See more on how EPA is working to bring pesticide labels, including herbicides, into compliance with the Endangered Species Act here: https://www.dtnpf.com/….

Emily Unglesbee can be reached at Emily.unglesbee@dtn.com

Follow her @Emily_Unglesbee