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COURT DENIES REQUEST TO REHEAR ITS RULING VACATING DICAMBA'S USE LABEL
DTN/Progressive Farmer reports:

ROCKVILLE, Md. (DTN) -- On Monday, three dicamba registrants lost one of their last remaining legal options to overturn a federal court's mandate ending the registrations of three dicamba herbicides.

On June 3, a panel of three judges on the U.S. Court of Appeals for the Ninth Circuit issued a decision to vacate three dicamba herbicides, XtendiMax (Bayer), Engenia (BASF) and FeXapan (Corteva Agriscience).

On July 20, all three companies petitioned for a broader group of Ninth Circuit judges to rehear that case. They argued that the judges' initial decision was unfair, unconstitutional and required a full judicial review.

On Monday, the Ninth Circuit Court disagreed and dismissed those requests, known as petitions for "rehearing en banc."

"The full court has been advised of the petitions for rehearing en banc, and no judge of the court has requested a vote on whether to rehear the matter en banc," the judges' order stated. "The petitions for rehearing en banc are DENIED."

The decision leaves the three companies with one final legal option to overturn the June 3 Ninth Circuit ruling -- an appeal to the U.S. Supreme Court.

In emailed statements to DTN, all three companies expressed disappointment with the Ninth Circuit's denial of their en banc petitions. Corteva's statement said it was "too early to comment" on the possibility of a Supreme Court appeal, but BASF's mentioned it as a possibility.

"We disagree with the decision and believe BASF deserves an opportunity to be heard on the merits," the BASF statement said. "We are assessing additional legal options, including a challenge to the U.S. Supreme Court."

Bayer's statement added: "We believe our request for rehearing should have been granted for several reasons, including that the court disregarded the EPA's expert scientific judgements. Indeed, the EPA conducted an extensive review and considered all relevant science prior to issuing the registration for XtendiMax. We are assessing our options to still address the court's ruling and set the record straight."

In the meantime, the EPA is actively evaluating new registrations for Bayer's XtendiMax and BASF's Engenia herbicides and are expected to make a decision sometime this fall. Both companies submitted additional data and products to the agency for review and have expressed optimism that growers will have access to their dicamba herbicides for use in Xtend crops in 2021.


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