II

106TH CONGRESS

1ST SESSION S. 1229

To amend the Federal Insecticide, Fungicide, and Rodenticide Act to permit

a State to register a foreign pesticide for distribution and use within

that State.

IN THE SENATE OF THE UNITED STATES

JUNE 16, 1999

Mr. BURNS introduced the following bill; which was read twice and referred

to the Committee on Agriculture, Nutrition, and Forestry

A BILL

To amend the Federal Insecticide, Fungicide, and

Rodenticide Act to permit a State to register a foreign

pesticide for distribution and use within that State.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. REGISTRATION OF FOREIGN PESTICIDES BY

4 STATES.

5 (a) IN GENERAL.—Section 24 of the Federal Insecti6 cide, Fungicide, and Rodenticide Act (7 U.S.C. 136v) is

7 amended by adding at the end the following:

8 ‘‘(d) REGISTRATION OF FOREIGN PESTICIDES BY

9 STATES.—
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1 ‘‘(1) DEFINITIONS.—In this subsection:

2 ‘‘(A) COMPARABLE DOMESTIC PES3 TICIDE.—The term ‘comparable domestic pes4 ticide’ means a pesticide that—

5 ‘‘(i) is registered under section 3;

6 ‘‘(ii) is not subject to a notice of in7 tent to cancel or suspend or an enforce8 ment action under section 12, based on the

9 labeling or composition of the pesticide;

10 ‘‘(iii) is used as the basis for compari11 son for the determinations required under

12 paragraph (3); and

13 ‘‘(iv) is labeled for use on the site or

14 crop for which registration is sought under

15 this subsection on the basis of a use that

16 is not the subject of a pending interim ad17 ministrative review under section 3(c)(8).

18 ‘‘(B) FOREIGN PESTICIDE.—The term ‘for19 eign pesticide’ means a pesticide that—

20 ‘‘(i) is registered for use as a pesticide

21 in a foreign country;

22 ‘‘(ii) is identical or substantially simi23 lar in its composition to any pesticide reg24 istered under section 3; and
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1 ‘‘(iii) is registered by the registrant of

2 a comparable domestic pesticide or an af3 filiated entity of the registrant.

4 ‘‘(2) AUTHORITY TO REGISTER FOREIGN PES5 TICIDES.—

6 ‘‘(A) IN GENERAL.—On the request of 1 or

7 more agricultural producers or on the initiative

8 of a State, the State may register a foreign pes9 ticide for distribution and use in the State if

10 the registration is consistent with this sub11 section and other provisions of this Act and is

12 approved by the Administrator.

13 ‘‘(B) EFFECT OF REGISTRATION.—

14 ‘‘(i) IN GENERAL.—Except as pro15 vided in clause (ii), on approval by the Ad16 ministrator, the registration of a foreign

17 pesticide by a State shall be considered a

18 registration of the pesticide under section

19 3.

20 ‘‘(ii) DISTRIBUTION TO OTHER

21 STATES.—A foreign pesticide that is reg22 istered by a State under this subsection

23 and distributed to a person in that State

24 shall not be transported to, or used by, a

25 person in another State unless the dis-
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1 tribution and use is consistent with the

2 registration by the original State.

3 ‘‘(C) REGISTRANT.—A State that registers

4 a foreign pesticide under this subsection shall

5 be considered the registrant of the foreign pes6 ticide under this Act.

7 ‘‘(3) STATE REQUIREMENTS FOR REGISTRA8 TION.—To register a foreign pesticide under this

9 subsection, a State shall—

10 ‘‘(A)(i) determine whether the foreign pes11 ticide is identical or substantially similar in its

12 composition to a comparable domestic pesticide;

13 and

14 ‘‘(ii) submit the proposed registration to

15 the Administrator only if the State determines

16 that the foreign pesticide is identical or sub17 stantially similar in its composition to a com18 parable domestic pesticide;

19 ‘‘(B) for each food or feed use authorized

20 by the registration—

21 ‘‘(i) determine whether there exists a

22 tolerance or exemption under the Federal

23 Food, Drug, and Cosmetic Act (21 U.S.C.

24 301 et seq.) that permits the residues of

25 the pesticide on the food or feed;
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1 ‘‘(ii) identify the tolerances or exemp2 tions in the submission made under sub3 paragraph (D); and

4 ‘‘(iii) describe in the submission the

5 proposed application of the tolerances to

6 meet special local needs;

7 ‘‘(C) require that the pesticide bear a label

8 that—

9 ‘‘(i) specifies the information that is

10 required to comply with section 3(c)(5);

11 ‘‘(ii) identifies itself as the only valid

12 label;

13 ‘‘(iii) identifies the State in which the

14 product may be used;

15 ‘‘(iv) identifies the approved use and

16 includes directions for use, use restrictions,

17 and precautions that are identical or sub18 stantial similar to the directions for use,

19 use restrictions, and precautions that are

20 on the approved label of the comparable

21 domestic pesticide; and

22 ‘‘(v) includes a statement indicating

23 that it is unlawful to distribute or use the

24 foreign pesticide in the State in a manner
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1 that is inconsistent with the registration of

2 the pesticide by the State; and

3 ‘‘(D) submit to the Administrator a de4 scription of the proposed registration of the for5 eign pesticide that includes a statement of the

6 determinations made under this paragraph, the

7 proposed labeling for the foreign pesticide, and

8 related supporting documentation.

9 ‘‘(4) APPROVAL OF REGISTRATION BY ADMINIS10 TRATOR.—

11 ‘‘(A) IN GENERAL.—Not later than 60

12 days after receipt of the proposed registration

13 of a foreign pesticide by a State submitted

14 under paragraph (3)(D), the Administrator

15 shall approve the proposed registration if the

16 Administrator determines that the proposed

17 registration of the foreign pesticide by the State

18 is consistent with this subsection and other pro19 visions of this Act.

20 ‘‘(B) NOTICE OF APPROVAL.—No registra21 tion of a foreign pesticide by a State under this

22 subsection shall be considered approved, or be

23 effective, until the Administrator provides no24 tice of approval of the registration in writing to

25 the State.
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1 ‘‘(C) HARMONIZATION OF REGISTRA2 TIONS.—In carrying out this subsection, the

3 Administrator shall take into account the pri4 ority of harmonizing the registrations of foreign

5 pesticides and comparable domestic pesticide in

6 accordance with the United States-Canada Free

7 Trade Agreement, the North American Free

8 Trade Agreement, and other applicable agree9 ments and treaties.

10 ‘‘(5) LABELING OF FOREIGN PESTICIDES.—

11 ‘‘(A) DISTRIBUTION.—After a notice of the

12 approval of a foreign pesticide by a State is re13 ceived by the State, the State shall make labels

14 approved by the State and the Administrator

15 available to persons seeking to distribute the

16 foreign pesticide in the State.

17 ‘‘(B) USE.—A foreign pesticide that is reg18 istered by a State under this subsection may be

19 used within the State only if the foreign pes20 ticide bears the approved label for use in the

21 State.

22 ‘‘(C) CONTAINERS.—Each container con23 taining a foreign pesticide registered by a State

24 shall, before the transportation of the foreign

25 pesticide into the State and at all times the for-
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1 eign pesticide is distributed or used in the

2 State, bear a label that is approved by the State

3 and the Administrator.

4 ‘‘(D) REPORT.—A person seeking to dis5 tribute a foreign pesticide registered by a State

6 shall provide to the State a report that—

7 ‘‘(i) identifies the person that will re8 ceive and use the foreign pesticide in the

9 State; and

10 ‘‘(ii) states the quantity of the foreign

11 pesticide that will be transported into the

12 State.

13 ‘‘(E) AFFIXING LABELS.—The act of

14 affixing a label to a foreign pesticide under this

15 subsection shall not be considered production

16 for the purposes of this Act.

17 ‘‘(6) ANNUAL REPORTS.—

18 ‘‘(A) PREPARATION.—A State registering

19 1 or more foreign pesticides under this sub20 section shall prepare an annual report that—

21 ‘‘(i) identifies the foreign pesticides

22 that are registered by the State;

23 ‘‘(ii) identifies the users of foreign

24 pesticides used in the State; and
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1 ‘‘(iii) states the quantity of foreign

2 pesticides used in the State.

3 ‘‘(B) AVAILABILITY.—On the request of

4 the Administrator, the State shall provide a

5 copy of the annual report to the Administrator.

6 ‘‘(7) RECALLS.—If the Administrator deter7 mines that it is necessary under this Act to termi8 nate the distribution or use of a foreign pesticide in

9 a State, on the request of the Administrator, the

10 State shall recall the foreign pesticide.

11 ‘‘(8) SUSPENSION OF STATE AUTHORITY TO

12 REGISTER FOREIGN PESTICIDES.—

13 ‘‘(A) IN GENERAL.—If the Administrator

14 finds that a State that has registered 1 or more

15 foreign pesticides under this subsection is not

16 capable of exercising adequate controls to en17 sure that registration under this subsection is

18 consistent with this subsection and other provi19 sions of this Act or has failed to exercise ade20 quate control over 1 or more foreign pesticides,

21 the Administrator may suspend the authority of

22 the State to register foreign pesticides under

23 this subsection until such time as the Adminis24 trator determines that the State can and will
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1 exercise adequate control of the foreign pes2 ticides.

3 ‘‘(B) NOTICE AND OPPORTUNITY TO RE4 SPOND.—Before suspending the authority of a

5 State to register a foreign pesticide, the Admin6 istrator shall—

7 ‘‘(i) advise the State that the Admin8 istrator proposes to suspend the authority

9 and the reasons for the proposed suspen10 sion; and

11 ‘‘(ii) provide the State with an oppor12 tunity time to respond to the proposal to

13 suspend.

14 ‘‘(9) DISCLOSURE OF INFORMATION BY ADMIN15 ISTRATOR TO THE STATE.—The Administrator may

16 disclose to a State that is seeking to register a for17 eign pesticide in the State information that is nec18 essary for the State to make the determinations re19 quired by paragraph (3) if the State certifies to the

20 Administrator that the State can and will maintain

21 the confidentiality of any trade secrets or commer22 cial or financial information that was marked under

23 section 10(a) provided by the Administrator to the

24 State under this subsection to the same extent as is

25 required under section 10.
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1 ‘‘(10) PROVISION OF INFORMATION BY REG2 ISTRANTS OF COMPARABLE DOMESTIC PES3 TICIDES.—If a State registers a foreign pesticide,

4 and a registrant of a comparable domestic pesticide

5 that is (directly or through an affiliate) a foreign

6 registrant fails to provide to the State the informa7 tion possessed by the registrant that is necessary to

8 make the determinations required by paragraph (3),

9 the Administrator may suspend without a hearing all

10 pesticide registrations issued to the registrant under

11 this Act.

12 ‘‘(11) PATENTS.—Title 35, United States Code,

13 shall not apply to a foreign pesticide registered by

14 a State under this subsection that is transported

15 into the United States or to any person that takes

16 an action with respect to the foreign pesticide in ac17 cordance with this subsection.

18 ‘‘(12) SUBMISSIONS.—A submission by a State

19 under this section shall not be considered an applica20 tion under section 3(c)(1)(F).’’.

21 (b) CONFORMING AMENDMENT.—The table of con22 tents in section 1(b) of the Federal Insecticide, Fungicide,

23 and Rodenticide Act (7 U.S.C. prec. 121) is amended by

24 adding at the end of the items relating to section 24 the

25 following:
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‘‘(d) Registration of foreign pesticides by States.

‘‘(1) Definitions.

‘‘(2) Authority to register foreign pesticides.

‘‘(3) State requirements for registration.

‘‘(4) Approval of registration by Administrator.

‘‘(5) Labeling of foreign pesticides.

‘‘(6) Annual reports.

‘‘(7) Recalls.

‘‘(8) Suspension of State authority to register foreign pesticides.

‘‘(9) Disclosure of information by Administrator to the

State.

‘‘(10) Provision of information by registrants of comparable domestic pesticides.

‘‘(11) Patents.

‘‘(12) Submissions.’’.

1 (c) EFFECTIVE DATE.—This section and the amend2 ments made by this section take effect 60 days after the

3 date of enactment of this Act.

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