States and Dicamba

State Restrictions on Federal Pesticide Labels Under Scrutiny

Emily Unglesbee
By  Emily Unglesbee , DTN Staff Reporter
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EPA has told state regulators that using Section 24(c) of FIFRA to add restrictions to federal pesticide labels, like dicamba, may not be in line with the law's language. (DTN photo by Pamela Smith)

ROCKVILLE, Md. (DTN) -- EPA's announcement of new dicamba regulations comes at a time when states' ability to restrict this kind of federal pesticide label may be under threat.

In the past, states have used section 24(c) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), to pass more restrictive state regulations on federal pesticide labels. For example, the state of Tennessee used Section 24(c) to limit the use of three dicamba herbicides to 7:30 a.m. to 5:30 p.m. in the state in 2018 -- even though the federal dicamba label only limited use from sunrise to sunset.

That practice may no longer be routine, because EPA is worried that the FIFRA language does not actually support it, state pesticide regulators told DTN.

"What we've heard is that the purpose of Section 24(c) is to allow additional uses of a federal pesticide, as opposed to restrict uses," said Leo Reed, American Association of Pesticide Control Officials (AAPCO) board director from Indiana. "And states have been using it to restrict federal labels, and EPA is leery of continuing that process."

EPA told DTN in an emailed statement that it will try to support states if they want to use 24(c) in 2019: "EPA recognizes and supports the important authority given to states under FIFRA section 24(c) to issue special local needs registrations. If a state wishes to modify the over-the-top labels for dicamba in order to better meet their state's circumstances, EPA will work with them to support their goals."

However, North Dakota State University pesticide program specialist Andrew Thostenson, and Reed, told DTN that, during weekly calls between the agency and state regulators that occurred during the summer of 2018, EPA expressed concerns about states doing just this. The calls were meant to keep EPA informed about dicamba injury complaints and problems that states were dealing with, Reed and Thostenson said.

A number of states had issued special local needs labels under Section 24(c), to further restrict use of XtendiMax, Engenia and FeXapan in 2018. Many added a cutoff date to the label and time-of-day restrictions to applications.

"[EPA] made it abundantly clear that one of the problems with states using 24(c) to restrict federal labels is that this is a gray area in FIFRA," Thostenson said. "They were very nervous about that."

Section 24(c) was written to give states the ability to modify federal pesticide regulations in order to accommodate particular local state needs, Thostenson explained. However, the actual language of the law states that: "A State may provide registration for additional uses of federally registered pesticides formulated for distribution and use within that State to meet special local needs."

"So really, under Section 24(c), it looks like states may only ask EPA to expand the federal label and not restrict it," Thostenson noted. "However, for as long as I have been in the pesticide game, and especially in the last four to five years, the opposite has been true -- states have implemented 24(c) oftentimes to further restrict the federal label."

And for some time, EPA's official stance has been that this is legal. The agency's guidance on Section 24(c) posted on the EPA website states that "under certain circumstances states may impose more restrictive measures than are on [federal pesticide] labels, or limit use to a subset of uses on [federal pesticide] labels."

"Then, starting on the Aug. 20 call, that started to shift," Thostenson said. "The message was fairly clear that EPA felt this could be a potential area of contention, and they were trying to communicate to us that if we went down that road, we could face potential problems."

This message alarmed state regulators, Reed and Thostenson said, because without 24(c) as an option to restrict federal pesticides, states would have to turn to their own internal rulemaking processes, which can be cumbersome and complex.

Unless a state has an emergency rulemaking authority to pass a new rule quickly, this process can be extremely time-consuming, Reed said. If Indiana, for example, tried to pass a state rule restricting the new federal dicamba labels, the rule would never become official in time for the 2019 growing season. "It's at least yearlong process," he said.

Passing state rules restricting federal pesticides can also be controversial and expensive for a state. In 2017, the Arkansas State Plant Board passed an in-season ban on the use of dicamba for 2018, only to be on the receiving end of a deluge of lawsuits from Monsanto and various groups of farmers throughout 2017 and 2018.

That's why Section 24(c) of FIFRA remains states' simplest and fastest way to restrict and modify federal pesticide labels, Thostenson said.

"What I would really like to see is EPA commit to letting states use 24(c) in this way," he said.

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Emily Unglesbee