OTT Dicamba Labels Unlikely for 2025

23 Sep 2024

JEFFERSON CITY, Mo. (DTN) -- Like most farmers this time of year, Josh Gackle is field-focused as harvest gets underway. But that doesn't mean he isn't looking ahead.

"Whether it's seed traits or chemicals, we've already started making plans for 2025," said the farmer from Kulm, North Dakota, and current president of the American Soybean Association (ASA). "Dealers and others are calling, and so a lot of decisions are on the table. On our farm, we're planning for multiple scenarios, which include scenarios that won't involve over-the-top (OTT) dicamba."

The future of XtendiMax, Engenia and Tavium -- three dicamba herbicide products the EPA previously approved for spraying "over the top" of soybeans and cotton -- has been in question since February when a federal court in Arizona vacated the products' 2020 registrations. Following the court's decision, EPA issued an existing stocks order that guided the herbicides' use during the 2024 season. However, none of the OTT dicamba products are presently registered or labeled for use in 2025, and that status is unlikely to change any time soon.

"Barring some revelation, I think the chances for having a label are suspect," said David Flakne, head of U.S. state affairs for Syngenta, during an interview with DTN. "EPA has indicated that they're working under the PRIA timeline, so they're signaling to the industry that it's highly unlikely that there will be an over-the-top registration of dicamba for 2025."

TICKING TIMELINES

In response to a DTN inquiry, an EPA spokesperson acknowledged the Pesticide Registration Improvement Act (PRIA 5), reauthorized by Congress in December 2022, does specify a statutory review time of 17 months from the date that the action gets in-processed.

Bayer was the first registrant to reinitiate the registration process for its OTT dicamba product XtendiMax, referred to as KHNP0090 in its application. On May 3, EPA published a notice of receipt in the Federal Register and announced the start of a 30-day public comment period. The agency published similar notices and announced public comment periods for BASF's Engenia and Syngenta's Tavium on June 4 and July 23, respectively.

While these dates may signify the start of a 17-month timeline "clock," the EPA spokesperson noted that the agency's "clock" is running slow due to funding shortfalls.

"These timelines were predicated on funding the pesticide program at the minimum level of $166 million that Congress determined is needed for EPA to meet PRIA 5 deadlines," the agency spokesperson wrote to DTN. "Because Congress has not provided this minimum funding, most PRIA actions currently take longer than the specified timeline to complete."

According to figures supplied by EPA, the budget for the agency's pesticide program was approximately $132.5 million in fiscal year 2024, roughly $6 million less than the previous year and $33 million less than minimum funding level established under PRIA. In addition, the fees the agency collects for pesticide registration activities have been about $10 million less than anticipated," leaving EPA with even fewer resources than expected.

"The reduced funding levels will mean additional delays in processing pesticide registration applications and completing registration review cases and non-PRIA applications," the EPA spokesperson wrote.

Chip Shilling, BASF's senior manager of external affairs, told DTN that when the company submitted its application and proposed label for Engenia this past spring, it was understood that the process would take a minimum of 17 months. He said that because courts have vacated OTT dicamba product registrations twice before, the agency will likely take its time throughout the current review process.

"They are going to make sure that if they approve something, they have a legally defensible label that would stand up to what we would expect in future litigation," he said.

STEPS TOWARD NEW LABELS

The 30-day public comment periods for XtendiMax, Engenia and Tavium that opened when EPA published its notices of receipt concluded on June 3, July 5 and Aug. 22, respectively. Now, each OTT dicamba product has entered the science and regulatory review stage of the registration process. The EPA spokesperson wrote that the agency is currently reviewing comments for each individual proposal and will review each application separately.

During this stage of the process, EPA will complete risk assessments, consider the risks and benefits and use its recently finalized Herbicide Strategy to determine if mitigations are necessary. This will lead to the agency drafting a proposed decision, which will be posted on the federal docket for another 30-day public comment period. After considering and responding to the comments received, EPA will draft a final decision.

In addition to these EPA internal processes, the agency must also fulfill its obligations under the Endangered Species Act (ESA). This may require consultation with the U.S. Fish and Wildlife Service (USFWS).

"Courts have struck down various pesticide registrations for failing to comply with the ESA, including vacating some registrations," the agency spokesperson wrote. "EPA needs to consider those court findings in handling new use submissions for dicamba. For example, if EPA's ESA analysis found that these new uses of dicamba were likely to affect listed species and their habitats, consultation with USFWS would likely take more than a year to complete."

While each registrant submitted a separate registration application and proposed label, the EPA spokesperson wrote that "for efficiency, EPA is planning to do the risk assessments for all three products together and, if applicable, issue combined draft and final decision documents."

All three product labels propose the same use patterns in dicamba-tolerant cotton. However, there are differences in soybean use patterns the agency will have to address during its review.

As proposed, the labels for Engenia and Tavium would allow applications to dicamba-tolerant soybeans before, during and immediately after planting as well as over the top until the crop reaches the V2 growth stage -- when the second trifoliate leaf is fully unfolded -- or until June 12, whichever comes first. However, the proposed label for XtendiMax did not include any OTT application in soybeans, though it included the same June 12 cutoff date.

Frank Rittemann, Bayer soybean launch lead, told DTN that when drafting its proposed label, the company's objective was to have XtendiMax available for the 2025 growing season. It was determined the use pattern with the best chance of achieving that objective was one that did not include a post-emergence application option, he said.

"But, if throughout the consultation process, through the dialogue, we come to realize there's opportunity to have a more open use pattern for soybeans, we will absolutely look at that option," Rittemann said.

The EPA spokesperson wrote the agency plans to encourage alignment of the use patterns between the labels to avoid confusion in the market.

OPTIONS WITHOUT OTT DICAMBA

Each product registrant expressed confidence that even with the likely absence of OTT dicamba, cotton and soybean farmers still will have post-emergence weed-control options in 2025. Both glyphosate and glufosinate still offer options for post-emergence application in soybeans and cotton with the XtendFlex trait, while glyphosate, glufosinate and 2,4-D choline are available for those crops with the Enlist trait. The registrants stressed that growers visit with their crop consultants, seed dealers and other advisers now to put together a plan.

"For 2025, I would certainly suggest farmers look at what is approved and what they know they can get," Shilling said. "Think about all the different tools that they have in the toolbox, whether it be pre's and layering residuals and what they can do early post to be able to control those weeds, thinking past dicamba."

Flakne noted the importance of beginning the season with clean, weed-free fields.

"One thing that a grower can't do is allow those weeds that are devastating to yield go to seed and create years of issues," Flakne said. "You have to have a package of weed control that uses multiple modes of action to keep those weeds in check. We managed those weeds prior to the dicamba trait. We will do it again. It's just more complex and more complicated."

CROP INJURY CONCERNS RETURN

If XtendiMax, Engenia and Tavium don't receive new registrations in time for the 2025 growing season, it will be the first year since 2016 that an OTT dicamba formulation isn't available to farmers. This reality concerns agriculture officials in at least one state.

In letters sent to EPA during the public comment periods for the OTT dicamba products, Paul Bailey, director of the Missouri Department of Agriculture's Plant Industries Division, shared concern over the current registration status of older dicamba herbicides.

"I'm afraid that we may see a repeat of 2016," Bailey said during a phone interview with DTN, referring to widespread crop injury caused by off-target movement of dicamba formulations sprayed illegally. "The dicamba-tolerant seed is out there, and we won't have an over-the-top dicamba product to use. The old technology is there, and you can't tell the difference between one or the other when it's on a crop of soybeans showing injury damage."

Currently, older dicamba formulations are classified as general use pesticides by EPA. Bailey has asked the federal agency to either reclassify them as restricted use or suspend their registrations and require a recall until new OTT dicamba product registrations are approved.

Under Missouri law, those selling restricted use pesticides are licensed and required to keep records showing who purchased those products. Such records are not required for general use pesticides.

"If we have a repeat of 2016 and those products are restricted use, we'll be able to identify who's making these purchases and help our investigative process," Bailey said.

Missouri agriculture officials received 122 complaints of dicamba injury in 2016. That number grew to 315 in 2017, falling back to 220 complaints in 2018. Last year, the state received just 12 complaints, and thus far in 2024, only six dicamba-related complaints have been logged. The state supported the new registration of OTT dicamba products in its letters to EPA.

"I believe all of our users in Missouri, through the training and education process, have come to learn and understand how to use those OTT dicamba products effectively, and that's why our complaint numbers have decreased every year," Bailey said. "I hate to lose those products. They're awful good and they help produce good yields, so growers need them."

A similar sentiment exists in Gackle's home state of North Dakota.

"With the weed pressure we face, in particular from waterhemp and kochia, having access to over-the-top dicamba is critical to growers here and in many other parts of the country," he said. "We really need EPA to do something sooner rather than later so that farmers at least know what they're facing going into the 2025 season."

OTT Dicamba Labels Unlikely for 2025

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