II

106TH CONGRESS

1ST SESSION S. 394

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

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

that State.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 9, 1999

Mr. DORGAN (for himself, Mr. BAUCUS, and Mr. CONRAD) 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 Canadian

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 CANADIAN 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 CANADIAN PESTICIDES BY

9 STATES.—
2

•S 394 IS

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

2 ‘‘(A) CANADIAN PESTICIDE.—The term

3 ‘Canadian pesticide’ means a pesticide that—

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

5 in Canada;

6 ‘‘(ii) is identical or substantially simi7 lar in its composition to any pesticide reg8 istered under section 3; and

9 ‘‘(iii) is registered by the registrant of

10 a comparable domestic pesticide or an af11 filiated entity of the registrant.

12 ‘‘(B) COMPARABLE DOMESTIC PES13 TICIDE.—The term ‘comparable domestic pes14 ticide’ means a pesticide that—

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

16 ‘‘(ii) is not subject to a notice of in17 tent to cancel or suspend or an enforce18 ment action under section 12, based on the

19 labeling or composition of the pesticide;

20 ‘‘(iii) is used as the basis for compari21 son for the determinations required under

22 paragraph (3); and

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

24 crop for which registration is sought under

25 this subsection on the basis of a use that
3

•S 394 IS

1 is not the subject of a pending interim ad2 ministrative review under section 3(c)(8).

3 ‘‘(2) AUTHORITY TO REGISTER CANADIAN PES4 TICIDES.—

5 ‘‘(A) IN GENERAL.—A State may register

6 a Canadian pesticide for distribution and use in

7 the State if the registration is consistent with

8 this subsection and other provisions of this Act

9 and is approved by the Administrator.

10 ‘‘(B) EFFECT OF REGISTRATION.—

11 ‘‘(i) IN GENERAL.—Except as pro12 vided in clause (ii), on approval by the Ad13 ministrator, the registration of a Canadian

14 pesticide by a State shall be considered a

15 registration of the pesticide under section

16 3.

17 ‘‘(ii) DISTRIBUTION TO OTHER

18 STATES.—A Canadian pesticide that is

19 registered by a State under this subsection

20 and distributed to a person in that State

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

22 person in another State unless the dis23 tribution and use is consistent with the

24 registration by the original State.
4

•S 394 IS

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

2 a Canadian pesticide under this subsection shall

3 be considered the registrant of the Canadian

4 pesticide under this Act.

5 ‘‘(3) STATE REQUIREMENTS FOR REGISTRA6 TION.—To register a Canadian pesticide under this

7 subsection, a State shall—

8 ‘‘(A)(i) determine whether the Canadian

9 pesticide is identical or substantially similar in

10 its composition to a comparable domestic pes11 ticide; and

12 ‘‘(ii) submit the proposed registration to

13 the Administrator only if the State determines

14 that the Canadian pesticide is identical or sub15 stantially similar in its composition to a com16 parable domestic pesticide;

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

18 by the registration—

19 ‘‘(i) determine whether there exists a

20 tolerance or exemption under the Federal

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

22 301 et seq.) that permits the residues of

23 the pesticide on the food or feed; and
5

•S 394 IS

1 ‘‘(ii) identify the tolerances or exemp2 tions in the submission made under sub3 paragraph (D);

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

5 that—

6 ‘‘(i) specifies the information that is

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

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

9 label;

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

11 product may be used;

12 ‘‘(iv) identifies the approved use and

13 includes directions for use, use restrictions,

14 and precautions that are identical or sub15 stantial similar to the directions for use,

16 use restrictions, and precautions that are

17 on the approved label of the comparable

18 domestic pesticide; and

19 ‘‘(v) includes a statement indicating

20 that it is unlawful to distribute or use the

21 Canadian pesticide in the State in a man22 ner that is inconsistent with the registra23 tion of the pesticide by the State; and

24 ‘‘(D) submit to the Administrator a de25 scription of the proposed registration of the Ca-
6

•S 394 IS

1 nadian pesticide that includes a statement of

2 the determinations made under this paragraph,

3 the proposed labeling for the Canadian pes4 ticide, and related supporting documentation.

5 ‘‘(4) APPROVAL OF REGISTRATION BY ADMINIS6 TRATOR.—

7 ‘‘(A) IN GENERAL.—The Administrator

8 shall approve the proposed registration of a Ca9 nadian pesticide by a State submitted under

10 paragraph (3)(D) if the Administrator deter11 mines that the proposed registration of the Ca12 nadian pesticide by the State is consistent with

13 this subsection and other provisions of this Act.

14 ‘‘(B) NOTICE OF APPROVAL.—No registra15 tion of a Canadian pesticide by a State under

16 this subsection shall be considered approved, or

17 be effective, until the Administrator provides

18 notice of approval of the registration in writing

19 to the State.

20 ‘‘(5) LABELING OF CANADIAN PESTICIDES.—

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

22 approval of a Canadian pesticide by a State is

23 received by the State, the State shall make la24 bels approved by the State and the Adminis-
7

•S 394 IS

1 trator available to persons seeking to distribute

2 the Canadian pesticide in the State.

3 ‘‘(B) USE.—A Canadian pesticide that is

4 registered by a State under this subsection may

5 be used within the State only if the Canadian

6 pesticide bears the approved label for use in the

7 State.

8 ‘‘(C) CONTAINERS.—Each container con9 taining a Canadian pesticide registered by a

10 State shall, before the transportation of the Ca11 nadian pesticide into the State and at all times

12 the Canadian pesticide is distributed or used in

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

14 State and the Administrator.

15 ‘‘(D) REPORT.—A person seeking to dis16 tribute a Canadian pesticide registered by a

17 State shall provide to the State a report that—

18 ‘‘(i) identifies the person that will re19 ceive and use the Canadian pesticide in the

20 State; and

21 ‘‘(ii) states the quantity of the Cana22 dian pesticide that will be transported into

23 the State.

24 ‘‘(E) AFFIXING LABELS.—The act of

25 affixing a label to a Canadian pesticide under
8

•S 394 IS

1 this subsection shall not be considered produc2 tion for the purposes of this Act.

3 ‘‘(6) ANNUAL REPORTS.—

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

5 1 or more Canadian pesticides under this sub6 section shall prepare an annual report that—

7 ‘‘(i) identifies the Canadian pesticides

8 that are registered by the State;

9 ‘‘(ii) identifies the users of Canadian

10 pesticides used in the State; and

11 ‘‘(iii) states the quantity of Canadian

12 pesticides used in the State.

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

14 the Administrator, the State shall provide a

15 copy of the annual report to the Administrator.

16 ‘‘(7) RECALLS.—If the Administrator deter17 mines that it is necessary under this Act to termi18 nate the distribution or use of a Canadian pesticide

19 in a State, on the request of the Administrator, the

20 State shall recall the Canadian pesticide.

21 ‘‘(8) SUSPENSION OF STATE AUTHORITY TO

22 REGISTER CANADIAN PESTICIDES.—

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

24 finds that a State that has registered 1 or more

25 Canadian pesticides under this subsection is not
9

•S 394 IS

1 capable of exercising adequate controls to en2 sure that registration under this subsection is

3 consistent with this subsection and other provi4 sions of this Act or has failed to exercise ade5 quate control of 1 or more Canadian pesticides,

6 the Administrator may suspend the authority of

7 the State to register Canadian pesticides under

8 this subsection until such time as the Adminis9 trator determines that the State can and will

10 exercise adequate control of the Canadian pes11 ticides.

12 ‘‘(B) NOTICE AND OPPORTUNITY TO RE13 SPOND.—Before suspending the authority of a

14 State to register a Canadian pesticide, the Ad15 ministrator shall—

16 ‘‘(i) advise the State that the Admin17 istrator proposes to suspend the authority

18 and the reasons for the proposed suspen19 sion; and

20 ‘‘(ii) provide the State with an oppor21 tunity time to respond to the proposal to

22 suspend.

23 ‘‘(9) DISCLOSURE OF INFORMATION BY ADMIN24 ISTRATOR TO THE STATE.—The Administrator may

25 disclose to a State that is seeking to register a Ca-
10

•S 394 IS

1 nadian pesticide in the State information that is nec2 essary for the State to make the determinations re3 quired by paragraph (3) if the State certifies to the

4 Administrator that the State can and will maintain

5 the confidentiality of any trade secrets or commer6 cial or financial information that was marked under

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

8 State under this subsection to the same extent as is

9 required under section 10.

10 ‘‘(10) PROVISION OF INFORMATION BY REG11 ISTRANTS OF COMPARABLE DOMESTIC PES12 TICIDES.—If a State registers a Canadian pesticide,

13 and a registrant of a comparable domestic pesticide

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

15 registrant fails to provide to the State the informa16 tion possessed by the registrant that is necessary to

17 make the determinations required by paragraph (3),

18 the Administrator may suspend without a hearing all

19 pesticide registrations issued to the registrant under

20 this Act.

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

22 shall not apply to a Canadian pesticide registered by

23 a State under this subsection that is transported

24 into the United States or to any person that takes
11

•S 394 IS

1 an action with respect to the Canadian pesticide in

2 accordance with this subsection.

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

4 under this section shall not be considered an applica5 tion under section 3(c)(1)(F).’’.

6 (b) CONFORMING AMENDMENT.—The table of con7 tents in section 1(b) of the Federal Insecticide, Fungicide,

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

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

10 following:

‘‘(d) Registration of Canadian pesticides by States.

‘‘(1) Definitions.

‘‘(2) Authority to register Canadian pesticides.

‘‘(3) State requirements for registration.

‘‘(4) Approval of registration by Administrator.

‘‘(5) Labeling of Canadian pesticides.

‘‘(6) Annual reports.

‘‘(7) Recalls.

‘‘(8) Suspension of State authority to register Canadian

pesticides.

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

State.

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

‘‘(11) Patents.

‘‘(12) Submissions.’’.

11 (c) EFFECTIVE DATE.—This section and the amend12 ments made by this section take effect 180 days after the

13 date of enactment of this Act.

Æ