By Kelly Nuckolls
The article is not a substitute for legal advice. See here for the site’s reposting policy.
The headlines about dicamba and specifically, the new dicamba products, might have you scratching your head. How can states regulate pesticides? What is the federal government’s role in pesticide regulation? Where can I find my state’s regulation of these products? The hodgepodge of state laws that regulate the new dicamba products, XtendiMax with VaporGrip Technology, FeXapan herbicide Plus VaporGrip Technology, and Engenia, can be difficult to follow.
Federal Regulation of Pesticides
Federal law approves the registration of new pesticides and regulates how they are sold and used throughout the United States. This law, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) gives the Environmental Protection Agency (EPA) the authority to approve or deny an application for a new pesticide registration. The EPA must approve the registration before it can be sold, and can limit where the pesticide is sold by approving its use in only certain states. For example, the EPA has approved the use of all new dicamba products in 34 states, the main states producing cotton and soybeans. However, at least one cotton producing state, California, is not on the list of states where the new dicamba products can be used. The pesticide’s label will list the states where the EPA has approved the use of that specific pesticide.
FIFRA also gives the EPA authority to classify a registered pesticide as either a general use or a restricted use pesticide. If the EPA registers a pesticide as a restricted use pesticide, only certified applicators or a person under the direct supervision of a certified applicator may use the pesticide. If you want to purchase and use a restricted use pesticide, you will be required to attend a specific training approved by either the EPA or both your state and the EPA.
When the new dicamba products were approved at the end of 2016 and beginning of 2017, the pesticides were not registered as restricted use pesticides. FIFRA gives the EPA authority to change a pesticide’s classification to a restricted use pesticide after its initial registration if there is any “unreasonable adverse effects on the environment,” which includes unreasonable risks to humans. After the large number of dicamba damage reports during the 2017 growing season, the companies worked with the EPA to amend the new dicamba products’ registration to restricted use pesticides. Now, only certified applicators and those under their direct supervision can purchase and spray the new dicamba products. If your state does not have a state-specific training requirement, then you must attend an EPA-approved training by either the companies with a new dicamba product (DuPont, BASF, and Monsanto), or by a state government or state-approved trainer (i.e. state Departments of Agriculture or a University Extension program).
A person not following the pesticide’s label when applying the product violates FIFRA. If an individual, who is not a commercial applicator, fails to follow the label, the EPA will first issue a warning, and then fine the person up to $1,000 per additional violation. A farmer not following the label on the new dicamba products could be fined for a second violation. State fines, ranging into the thousands, may also apply for not following the label. That is why it is not only important to seek out the required training for the new dicamba products, but to also note the new changes on the label for 2018. Finally, states can alter the requirements on the label, so be sure to read and reread the label to understand all of the use requirements.
The main changes on the new dicamba product’s label for 2018 include:
Only permitted, certified applicators who received dicamba-specific training can apply the product;
Applicators cannot spray if wind is faster than 10 mph and slower than 3 mph;
New detailed records must be kept for two years;
Applicators can only spray during daylight hours;
Applicators must consult your state’s sensitive crop registry (if one exists) before spraying [see Maryland’s and Delaware’s]; and
There are new additional tank cleanout requirements to follow.
There are also a number of other very specific requirements on the label that you still must follow if you spray these new products.
States’ Authority to Regulate Pesticides
States can change how a federally approved pesticide is regulated, making additional use and training requirements, or even banning a pesticide in their state. States have three main options for adding requirements for a federally registered pesticide: 1) a state law; 2) a state agency’s rule; and 3) a 24(c) registration. Two states, Arkansas and Missouri have passed state laws increasing fines for not following the required pesticide application procedures. States have regulated the use of the new dicamba products through both 24(c) registrations and agency rules.
24(c) Registrations
The most common way states have regulated use of the new dicamba products is a 24(c) registration. FIFRA allows states to place additional requirements on the use of an approved pesticide to meet “special local needs.” States submit this application to the EPA for approval. Once approved, those additional requirements and a new 24(c) label must be followed in that state. Failing to comply with the 24(c) label requirements is a violation of federal and state law.
States 24(c) registrations with the new dicamba products have varied. Some states’ 24(c) labels, like Iowa, Indiana, and Louisiana, only include specific training requirements. Other states, like Missouri and North Dakota, ban the use of the new products during certain dates and times. In North Dakota, for example, the products cannot be sprayed when the temperature is over 85 degrees and cannot be sprayed after June 30th or the first bloom, whichever is first. There are also different ground equipment speeds, and other spraying requirements on the North Dakota 24(c) labels that are different from the federal label. In Missouri, applicators must submit a “Notice of Application form” to the state’s Department of Agriculture website before each application of the new products. The products also have a smaller spraying window compared to the federal label – the products can only be sprayed from 7:30 a.m. to 5:30 p.m., and depending on the county, cannot be sprayed at all after June 1, 2018 or July 15, 2018. The new dicamba products’ 24(c) labels have additional restrictions and instructions that vary from state to state, so it is important to read your label carefully, especially when you see “FIFRA Section 24(c) Special Local Need” on the label.
Alabama, Georgia, North Carolina, and Tennessee also have 24(c) labels for at least one of the new dicamba products.
State Agency Rules
State administrative agencies, like a state’s Department of Agriculture, are granted rule-making authority under the state’s law. State law will also require agency rules to be approved through a specific process before the new rules become legal requirements in that state. In some states the Department of Agriculture has the authority to write stricter rules for federally registered pesticides. As mentioned, FIFRA allows states to add additional stricter regulations to a federally registered pesticide.
Arkansas has made the most headlines for their Department of Agriculture’s Plant Board’s new rule banning the use of all new dicamba products from April 16 through October 31. Both Monsanto and a group of Arkansas farmers have challenged the rule in court, arguing that the Plant Board did not follow all of the state law requirements for agency rulemaking, and therefore, the rule should be withdrawn. If Monsanto or the group of Arkansas farmers win their case, the rule will no longer be law in Arkansas. But for now, the rule has been approved and will be enforced in the state of Arkansas.
State Laws Include Additional Fines
State laws have hefty fines when it comes to violating a pesticide label. As mentioned, Missouri and Arkansas both increased fines for not following label requirements. In Missouri, the fines are now $10,000 per violation and for chronic violators, the penalty can be up to $25,000. In Maryland, the fine for not following a pesticide label is $2,500 for the first violation, and up to $5,000 per additional violation, with a maximum fine of $25,000 if the violations were part of the same set of facts. The fines can add up quickly if both the federal and state government fined you for multiple violations. It is important to follow each label requirement carefully to avoid these massive penalties.
Final Tips
Read and reread the product label and follow all of the instructions. Check your state’s Department of Agriculture’s website to make sure they have not issued any new rules or 24(c) labels. Check the companies’ websites for a list of 24(c) registrations in every state.