Passed in early November, proposed restrictive dicamba spraying rules by the Arkansas Plant Board were sent back the regulatory body for further review

EXCERPT: Already facing two dicamba-related lawsuits – one brought by Monsanto, the other by a group of farmers wanting to use the Xtend technology in a broader manner – the Plant Board must now respond to the ALC [Arkansas Legislative Council] action. The task is unenviable as the board has also had to deal with nearly 1,000 off-target dicamba drift complaints in 2017.
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Legislative committee sends dicamba rules back to Arkansas Plant Board

David Bennett
Delta Farm Press, 13 Dec 2017
http://www.deltafarmpress.com/soybeans/legislative-committee-sends-dicamba-rules-back-arkansas-plant-board

* Dicamba saga continues to defy completion

On Tuesday afternoon, the long-running dicamba saga took another turn with actions of the Administrative Rules and Regulations Subcommittee of the Arkansas Legislative Council (ALC). Passed in early November, proposed dicamba spraying rules by the Arkansas Plant Board were sent back the regulatory body for further review.

In doing so, the ALC said the Plant Board should consider revising those rules using “scientific-based evidence, a dividing line to create north and south zones, and ambient temperature and humidity applicable to temperature inversion during night-time hours”.

The Plant Board document

Data largely collected by university scientists seems to address those concerns but was not enough to sway the ALC to Plant Board positions. A condensed form of that data was included in a Plant Board-generated document (titled “Basis for a Mid-April Suspension of In-Crop Dicamba Applications to Dicamba-resistant Agronomic Crops in Arkansas”) and handed out at the hearing.

Among the document’s bullet-points is the fact the Plant Board’s Pesticide Committee and full board met some 52 times between them to discuss dicamba – pushing aside any criticisms their regulatory proposals were done in a rash manner.

Further, according to document:

* “The introduction of this pesticide technology followed a somewhat unusual pattern in that very limited field research was conducted and made available, especially field testing with relevance to Arkansas conditions – conditions widely known to present special challenges.
* “The commercial introduction of Engenia herbicide in Arkansas during 2017 (note: the only dicamba formulation to be approved in the state) was to some degree a ‘giant field experiment’ to test the ability of applicators to manage off-target movement – a major concern of the Plant Board, based on information and concerns presented at the many meeting over five years.
* “Unfortunately, the result of the experiment was widespread off-target movement and plant injury symptoms across an estimated 800,000 acres in 26 Arkansas counties."
* Similar experiences were reported in Tennessee, Mississippi, Missouri and many other states where all three new formulations of dicamba were permitted.
* 2017 Arkansas field studies “established that volatility of the new formulations of dicamba herbicide occurred over at least a two to three day period following application".
* “Air temperatures ranged from 79 F to 94 F at time of application in four of these studies, resulting in off-target movement from at least 120 feet to well over 300 feet, sometimes in an unanticipated direction.
* “Previous scientific reports suggest that dicamba volatility increases from at least 68 F upward, with more active release from 77 F upward.
* “After reviewing 10 year historical weather data, based on volatility of the product in response to temperature, April 15 appeared to be the best date for suspension of application to protect other crops, plants and vegetation that will be leafing out. Additionally, historical regulatory responses have indictated misapplication incidents have been at a minimal level when applications occur prior to April 15.”

What about zones?

* “Due to the lack of research and a unanimous agreement of the (governor-appointed dicamba) task force on the topic of establishing zones, the Plant Board opted to establish a statewide cutoff date.”

Already facing two dicamba-related lawsuits – one brought by Monsanto, the other by a group of farmers wanting to use the Xtend technology in a broader manner – the Plant Board must now respond to the ALC action. The task is unenviable as the board has also had to deal with nearly 1,000 off-target dicamba drift complaints in 2017.

One big target for those in favor of expanding the use of dicamba-tolerant crops is a Plant Board application cutoff date of April 15 – the same date used “successfully over the years to manage volatile forms of 2,4-D in the state”, according to the Plant Board. Opponents argue the back end of the spraying window should at least reach late May or even mid-June. Such arguments obviously reached and moved enough ALC members.

What now?

Asked about his response to what the ALC is asking from the Arkansas Plant Board, state Rep. Kim Hammer, who sits on the council, says “my impression of what it's trying to do is get the board nailed down. I think what the motion is intended to do is go back and get the Plant Board to bend on that (spraying cutoff) date and get them to push it back closer to June 1.

“The (Plant Board reps) responded to two of the three things asked for in the motion.” A Plant Board representative “immediately turned around and gave that information. The only thing she didn’t give it on was the ‘line separating’ and, actually, I-40 wasn’t going to be used as the dividing line. It would be a boundary to be established”.

What might happen now?

“The way this could play out is I think the Plant Board will have some serious discussions between now and Friday (Dec. 15) when we have a full ALC (meeting). They can decide whether they want to amend the rules and push back the (cutoff) date or whether they want to stand their ground.

“Whatever (the Plant Board decision), the ALC could vote on it Friday. The Plant Board could say ‘No, we’re not going to (move the cutoff date). Take it, or leave it.’ Or, the Plant Board could come back and say ‘We’ve decided to push the date back.’”

Regardless, says Hammer, politics prevail. “Right now, honestly, it’s the politics of it with the people who are entrenched on this issue whether it’s the senators, the governor’s office, or the representatives. I wouldn’t be surprised if this comes up for a vote on Friday. I just can’t tell you which way it’ll go.”

Hammer says Arkansans need to make their voices heard. “Between now and Friday they need to call their respective senator and representative and voice their opinion. We’re elected to serve the people and the people’s voice needs to be heard.”

Like many, Hammer says the dicamba imbroglio is treading new, uncomfortable ground. “I don’t think I’ve ever seen anything like this. This is one of those ‘durned if you do, durned if you don’t’ situations.

“The one thing that disturbed me most about today’s meeting has to do with the farmer who’s been adversely affected (by off-target drift). If it’s a misapplication, a freak accident, or whatever, the ability to get financial recourse is a high hurdle for them to get over. That doesn’t seem to be right for those who lose their crops and then have to spend a lot of time litigating” to be made whole."

Monsanto

Scott Partridge is among those pleased with the ALC action.

“What the ALC has done is hit the ‘pause’ button and sent a very clear message to the Plant Board that they need to do their job,” says the Monsanto vice president of global strategies. “They need to get back to work, they need to consider the science, they need to consider what’s happening in other states and they need to take action to make sure the (dicamba-tolerant) technology is available during the growing season for the farmers of Arkansas.

“I think this is positive news. I hope it’ll result in a new and positive direction in the state so it isn’t placed once again at a disadvantage compared to the other 33 (soybean-growing) states.”

Comparisons to the 33 other states must include the fact that a handful have also moved to put spraying cutoffs in place. Missouri, where a rash of drift incidents occurred this growing season, is one.

“There are a few states that have announced cutoff dates,” says Partridge. “I understand what the states are trying to do. I applaud them for focusing on the technology and making sure the growers have access to it, at least at the first part of the growing season.

“However, cutoff dates are by nature arbitrary. There’s no science that supports a particular cutoff date or temperature limit. There simply isn’t. What concerns me is by creating a cutoff date it creates the impression that applications before that date are okay and those after that date are problematic. That simply isn’t what science shows and isn’t what the real world experience of 2017 showed.

“It also minimizes what states should be emphasizing: the importance of training, education, using the right equipment and making applications in accordance with the label. We know from last year that on-label applications with (Monsanto’s XtendiMax with VaporGrip herbicide) will not move beyond the buffer zones and cause a reduction in plant height resulting in economic loss. Rather than cutoff dates, the focus of the very few states who are using cutoff dates should have been on education and training.”

Partridge also wants states to consider emergency situations.

“We appreciate the hard work states are doing. We hope they’ll retain flexibility when those cutoff dates come if there’s a flush of pigweed or a circumstance when an application be made. We hope those states will retain flexibility to permit their growers to use this modern technology to control difficult weeds.”

Asked about those advocating for a spraying cutoff in high temperatures, Partridge pushes back:

“There’s no scientific data that supports a temperature cutoff. The ambient temperature doesn’t have anything to do with the ability to make on-label applications. In fact, it simply isn’t relevant as a condition to impose or restrict application.”

What about states considering a cutoff based on location of a farm?

“A geographic determinant makes no difference, either,” says Partridge. “State geographic boundaries – like the Bootheel of Missouri and the balance of the state – make no sense. Again, there’s no science that supports that.

“If the conditions in the Bootheel and Arkansas are such that an on-label application can be made within the parameters of the label, growers should be permitted to make the application. If there are environmental circumstances such as high winds or inversion conditions in the Bootheel that makes an application inappropriate, the application shouldn’t be made.”

And Monsanto’s lawsuit against the Arkansas Plant Board is still active.

“The ALC has rejected the Plant Board recommendations,” says Partridge. “If they come up with an approach that’s in the best interest of Arkansas growers, we’ll revisit the progress of the lawsuit. For now, we’ll continue to move forward with the lawsuit.”