Law

What’s Legal to Apply to the LL-GT27 Soybean – The (maybe almost) Final Story

by: Dr. Mark Loux, OSU Extension

Having to issue a retraction to previous C.O.R.N. article where we thought we had it right is always fun.  About a month ago we ran an article that covered the legality of POST glyphosate and glufosinate applications to the LL-GT27 soybean, which is resistant to both herbicides.  The issue at that time was the legality of applying a mix of both herbicides, based on questions we had received.  Cutting to the quick, our conclusion was that because it was legal to apply the mixture since both herbicides could legally be applied and labels did not prohibit mixing.  We were naïve apparently, because that article caused the issue over whether it was actually legal to apply glyphosate to the LL-GT27 soybean to be raised.  Since then, ODA, USEPA, and the companies who are the involved registrants have been working to come to a solution that clarifies this issue and keeps us all moving forward toward a resolution.  The issue here seems to be this – wording on most glyphosate labels specifies application is allowed to “Roundup Ready” and “Roundup Ready 2 Yield” soybeans, and since the LL-GT27 soybean is not designated as such, those glyphosate products could not legally be applied.  After a month of deliberation, the USEPA issued some guidance which took the form of the following:

“Users of pesticide products containing glyphosate should refer to the pesticide product labels of herbicide products containing glyphosate for the specific registered uses on pesticide-resistant crops such as soybeans with glyphosate-resistant trait(s).  Regardless of the herbicide product name (brand name), if the label of the glyphosate product states it is for over-the-top (post-emergent) use on glyphosate-resistant soybeans, and it is not otherwise restricted by other label statements/directions for use, it can be used on any soybean that has a glyphosate-resistant trait.  However, if the label of the glyphosate product states it is for use on crops such as soybeans, with specific glyphosate-resistant traits by name, then the glyphosate product can only be used on those crop(s) with those traits specifically identified on the label.  Ultimately, growers and commercial applicators must comply with the entirety of the pesticide label.  Please let us know if you have any questions.”

Questions – yes – excuse us while we look for the head scratching emoji.  We can try to interpret in real-life speak.  Here’s what it comes down to:

– the important part of the glyphosate label here is the use-specific directions, or the section within the larger “Roundup Ready” part of the label that deals with soybeans.

– If the soybean section of the glyphosate product label does not mention specific genetics by trade name, but just the wording “glyphosate-resistant” or “glyphosate-tolerant”, then it is legal to apply that product to the LL-GT27 soybean.

– if the soybean section of the label restricts use to certain genetics by trade name –  “Roundup Ready”, “Roundup Ready 2 Yield”, etc, then it would not be legal to apply to the LL-GT27 soybean.

– if the wording on the label is along the lines of “For Use on Soybeans with the Roundup Ready gene”, or similar wording with other specific genetics, it would not be legal to apply to the LL-GT27 soybean.

Our not exhaustive search through glyphosate product labels indicates that most if not all do not contain any wording about “glyphosate tolerance” in the soybean section, and indicate use is specifically on “Roundup Ready” or “Roundup Ready 2 Yield” or “Soybeans with the Roundup Ready gene”.   This includes Roundup PowerMAX, Durango DMA, Abundit Edge, Credit Extreme, and Cornerstone to name a few.  Manufacturer reps with a glyphosate product label that varies from this are free to contact us so we know.

The inability to use glyphosate on the LL-GT27 soybean affects primarily growers who bought it for the genetics or other traits and not the LibertyLink trait, who might have planned to use only glyphosate POST.  Most of the utility of this soybean on problem broadleaf weeds comes from the LibertyLink trait though (and it’s definitely legal to apply glufosinate POST).  There’s plenty of generic clethodim around to help out with grass.  We assume label language will adapt over time to take care of the glyphosate issue.  We’re not even sure this issue would have come up if we hadn’t tried to clarify the tank-mix legality and stepped right in it.  There appeared to be some confusion in the field about this though, with different stories being told, and better to just clear it all up way in advance of the season.  Stay tuned for the next chapter.  Offer void where not legal.  Legality may vary by state.  Your mileage may vary.  Side effects may include confusion, apathy, anger, and spontaneous profanity.

Legal defenses for agricultural production activities

Source: Ohio Agricultural Aw Blog

Whether producing crops, livestock, or other agricultural products, it can be challenging if not impossible for a farmer to completely prevent dust, odors, surface water runoff, noise, and other unintended impacts.   Ohio law recognizes these challenges as well as the value of agricultural production by extending legal protections to farmers.  The protections are “affirmative defenses” that can shield a farmer from liability if someone files a private civil lawsuit against the farmer because of the unintended impacts of farming.  A court will dismiss the lawsuit if the farmer successfully raises and proves an applicable affirmative legal defense.

In our latest law bulletin, we summarize Ohio’s affirmative defenses that relate to production agriculture.  The laws afford legal protections based on the type of activity and the type of resulting harm.  For example, one offers protections to farmers who obtain fertilizer application certification training and operate in compliance with an approved nutrient management plan, while another offers nuisance lawsuit protection against neighbors who move to an agricultural area.  Each affirmative defense has different requirements a farmer must meet but a common thread among the laws is that a farmer must be a “good farmer” who is in compliance with the law and utilizing generally accepted agricultural practices.  It is important for farmers to understand these laws and know how the laws apply to a farm’s production activities.

To learn more about Ohio’s affirmative defenses for agricultural production activities, view our latest law bulletin HERE.

Agriculture Improvement Act (Farm Bill) of 2018: Summary

Source: Carl Zulauf, Emeritus Professor, and Ben Brown, Program Manager – Farm Management Ohio State University, Department of Agricultural, Environmental, and Development Economics

Some information is beginning to come out regarding the new Farm Bill.  The complete farm bill is 807 pages.  Click on the following link to read the complete 9 page summary compiled by Dr. Carl Zulauf and Ben Brown  Farm Bill-196wwqa

Ohio Agricultural Law Blog–In the Weeds: Taking a Closer Look at the Lake Erie Bill of Rights

Evin Bachelor, Law Fellow, Agricultural and Resource Law Program

If You Are Involved in Agriculture – You Need to Read This!!

Lake Erie once again made headlines when the Ohio Supreme Court recently decided that a “Lake Erie Bill of Rights” (LEBOR) initiative could be placed on the Toledo ballot on February 26, 2019.  The decision raised alarm in Ohio’s agricultural community and fears that, if passed, the measure will result in litigation for farmers in the Lake Erie watershed.

The OSU Extension Agricultural and Resource Law Program took a close look at LEBOR.  Specifically, we wanted to know:

  • What does Toledo’s Lake Erie Bill of Rights petition mean?
  • What does the petition language say?
  • What happened in the legal challenges to keep the petition off the ballot?
  • Have similar efforts been successful, and if not, why not?
  • Who has rights in Lake Erie?
  • What rights do business entities have?

We examine all of these questions, plus a number of frequently asked questions, in a new format called “In the Weeds.”  While many of our readers know of our blog posts and law bulletins, explaining this issue required something different.  Using “In the Weeds” is a way for us to dig into a current legal issue more in depth.

For answers to the questions above and more, CLICK HERE to view the new “In the Weeds: The Lake Erie Bill of Rights Ballot Initiative.”

The LL-GT27 soybean – what’s legal?

Source: Dr. Mark Loux, OSU Extension

We are starting to see the availability of soybean varieties with more than two herbicide resistance traits, which can expand the herbicide options, improve control, and allow multiple site of action tank mixes that reduce the rate of selection for resistance.  One of these is the Enlist soybean, with resistance to glyphosate, glufosinate, and 2,4-D.  As of this writing, full approval for the Enlist soybean is still being held up by the Philippines (because they can apparently).  The other is the LL-GT27 soybean, which has resistance to glyphosate, glufosinate, and isoxaflutole (Balance).  There is no label for use of isoxaflutole on this soybean yet, but it is legal to apply both glyphosate and glufosinate.  In Ohio, as long as neither label prohibits applying a mixture of two herbicides labeled for a specific use, it’s legal to apply the mixture.  So, it’s also legal to apply a mixture of glyphosate and glufosinate to the LL-GT27 soybean.  There is no label that actually mentions or provides guidance for this mixture, which does not affect legality, but could affect who assumes liability for the recommendation to apply a mixture if that matters to you.  Some seed companies are making the recommendation for POST application of the mix of glyphosate and glufosinate to the LL-GT27 soybean in printed materials.  Our interpretation after discussion with ODA, is that these materials are essentially supplements to labels, and so the seed company would assume some liability for the recommendation.

Continue reading →

Does Your Pesticide or Fertilizer License Expire in 2019?

The Knox County Re-certification Dates are listed below

Knox County

Pesticide & Fertilizer Re-Certification

January 29, 2019 – 5:30 p.m.

March 27, 2019 – 9:00 a.m.

Cost – $35, includes all materials & PIZZA

Conference Room – Advantage Ag & Equipment

1025 Harcourt Rd., Mount Vernon, Oh.

Check http://u.osu.edu/knoxcountyag for updates

 

New Requirements For Dicamba Use

Revised label and new training required before use in 2019

If you are planning to use Engenia (BASF), XtendiMax (Monsanto) and FeXapan (DuPont) in 2019 there are major changes to the labels for the products that you need to be aware of.  The biggest change is only license applicators can purchase, mix, load, apply or clean application equipment.  Previously these tasks could have been completed by an unlicensed applicator if they were “supervision by a certified applicator”.  Below is the ODA news release pertaining to the new regulations.

REYNOLDSBURG, Ohio (Jan. 16, 2019) – The Ohio Department of Agriculture (ODA) is reminding farmers of revised labels and new training requirements for applicators who intend to use dicamba herbicide products this year. In October 2018, U.S. EPA approved revised labels for the three dicamba products that are labeled for use on soybeans: Engenia (BASF), XtendiMax (Monsanto) and FeXapan (DuPont).

“Like any other product, we want to ensure licensed applicators are properly following label directions as they get ready for this growing season,” said Matt Beal, chief of the ODA Division of Plant Health. “This not only helps ensure the safe use of pesticides, it also helps prevent misuse and mishandling.”

The manufacturers of these dicamba products also agreed to additional requirements for their products. Some of the requirements include:

  • 2019 labels supersede all prior labels for these products. Applicators must obtain a copy of the new label and must have that label in their possession at the time of use
  • Only certified applicators may purchase and apply the products
    • Those operating under the supervision of a certified applicator may no longer purchase or apply.
    • Anyone who mixes, loads or cleans dicamba application equipment must become licensed.
    • ODA will host additional “Dicamba Ag Only” exams in February and March for those looking to become a certified applicator. Visit agri.ohio.gov for more details.
  • Applicators must complete dicamba-specific training
  • Increased recordkeeping requirements
  • Wind speed restrictions
  • Temperature inversion restrictions
  • Sensitive/susceptible crop consultation
  • Spray system equipment clean-out

More details on these revisions can be found in the attached fact sheet. Applicators looking for a list of ODA-approved trainings can visit www.agri.ohio.gov. For questions, applicators can contact the ODA Pesticide and Fertilizer Regulation Section at 614-728-6987 or pesticides@agri.ohio.gov.

Inversion and Drift Mitigation – Workshop on December 14

Inversion and Drift Mitigation Workshop
Dec. 14, 2018 • 10 a.m. – noon

10 – 11 a.m. Weather Conditions and Potential Inversions
Speaker: Aaron Wilson, Weather Specialist & Atmospheric Scientist, OSU Extension, Byrd Polar & Climate Research Center

11 – noon Using FieldWatch to Communicate
Speaker: Jared Shaffer, Plant Health Inspector, Ohio Department of Agriculture

Two choices for attending the workshop:

Attend in person (pre-registration required, limited to the first 75 people registered)
Ohio Dept. of Agriculture • Bromfield Administration Building
8995 E. Main St., Reynoldsburg, OH 43068
Click here to register

Attend virtually:
Link coming soon – no pre-registration required

No cost to attend. Core commercial and private pesticide recertification credits available only athe Reynoldsburg in-person location. Limited to the first 75 registered. No recertification credits given for virtual/internet attendees.

For more information about the workshop, contact:
Cindy Folck, folck.2@osu.edu
614-247-7898

Event sponsored by OSU Extension IPM program and the USDA NIFA Crop Protection and Pest Management Competitive Grants Program (Grant number 2017-70006-27174).

 

Precautions for Dicamba use in Xtend Soybean

Ohio, Indiana, and Illinois are heavily infested with weeds resistant to glyphosate (group 9), PPO inhibitors (group 14), and ALS inhibitors (group 2). This has greatly reduced the number of effective postemergence herbicides for controlling these weeds in Roundup Ready 2 (RR2) soybeans. Adoption of Roundup Ready 2 Xtend (glyphosate and dicamba resistant – RR2 Xtend) soybeans and use of dicamba-based herbicides is one option for managing resistant weed populations. Keep in mind that selection for dicamba resistance occurs each time dicamba is applied, and over reliance on this technology will lead to the development of dicamba-resistant weed populations.

The extension weed science programs at The Ohio State University, Purdue University, and the University of Illinois recently collaborated to revise suggestions and precautions for use of dicamba in dicamba-resistant soybean.  The United States Environmental Protection Agency renewed labels of Xtendimax, Engenia, and FeXapan last October, and this updated extension weed science publication offers additional suggestions to help further reduce off-target dicamba movement.

Click here to view the publication

Landowner’s Evidence Not Determinative in CAUV Tax Appeal According to Ohio Supreme Court

Source: Evin Bachelor, Law Fellow, Agricultural and Resource Law Program

 

A landowner may present evidence regarding the value and acreage of his or her land, but the Board of Tax Appeals (BTA) is free to weigh that evidence as it wishes, according to the Ohio Supreme Court.  All seven justices agreed that the BTA in the case of Johnson v. Clark County Board of Revision acted with appropriate discretion, although two justices did not sign onto the reasoning as to why the BTA acted appropriately.  The case involved a property owner’s challenge of the Clark County Auditor’s determination of Current Agricultural Use Valuation (CAUV) for property tax purposes.

Click here to read more