92D CONGRESS 

### 1 SENATE 

### f REPORT 2d Session I No. 92-838

PESTICIDE CONTROL

JUNE 7, 1972.-Ordered to be printed

Mr. ALLEN, from the Committee on Agriculture and Forestry, submitted the following



## REPORT

[To accompany H.R. 10729]

The Committee on Agriculture and Forestry, to which was referred the bill (H.R. 10729) to amend the Federal Insecticide, Fungicide, and Rodenticide Act, having considered the same, reports favorably thereon with an amendment and recommends that the bill (as amended) do pass. SHORT EXPLANATION

This bill completely revises the Federal Insecticide, Fungicide, and Rodenticide Act.

At the present time, this Act prohibits interstate commerce in unregistered pesticides, and permits registration only when if used

as directed or in accordance with commonly recognized practice the pesticide is not injurious to man, vertebrate animals, or desirable vegetation. It does not prohibit the misuse of any registered pesticide,

nor does it regulate pesticides moving only in intrastate commerce.

The new bill would- (A) regulate the use of pesticides to protect man and his environment; and

(B) extend Federal pesticide regulation to actions entirely within a single State. The major provisions would- (1) prohibit the use of any pesticide in a manner inconsistent with its labeling. (Section 2(a)(2)(G)) No pesticide could be registered or sold unless its labeling was such as to prevent any injury to man or any substantial adverse effect on environmental values, taking into account the public interest, including benefits from its use. (Sections 2(q)(F), (G), and (H) and 3)

69-643 0-72-12

(2) require pesticides to be classified for general or restricted

use. Restricted use pesticides could be used only by or under the supervision of certified applicators or subject to such other restrictions as the Administrator may determine. (Section 3(d)) This shouldnot be construed as alimitation of thebroad authority described in item (1). The House Committee report (page 15) indicates that 4he Administrator should not set up a system for

use only by permit approved in writing for each application by

a pest management consultant; but that general or seasonal licenses, permits, or other similar forms of approval may be required.

(3) extend the Act to all pesticides by including those distributed entirely within a single State. (Section 3.)

(4) strengthen enforcement by- (a) requiring the registration of all pesticide producing establishments, and regular submission bythem ofproduction and sales-volume information; (Section 7)

(b) authorizing entry of establishments and other places where pesticides are held for sale or distribution and inspection and sampling of pesticides and devices; (Section 9)

(c) authorizing stop sale, use, or removal orders and seizure; (Section 13)

(d) providing for civil and increased criminal penalties; (Section 14)

(e) authorizing cooperation with States; (Sections 21 and 22)(f) improving procedures governing registration and cancellation actions by combining scientific review and public hearings and requiring all questions to be submitted for scientific review at the outset ofthe hearing; (Section 6) (5) give applicants for registration proprietary rights in their test data. (Section 3(c)(1) (D))

(6) authorize the Administrator to- (a) establish pesticide packaging standards to protect children and adults and for other purposes; (Section 24(c)(3))

(b) regulate pesticide and container disposal; (Section 18)(c) issue experimental usepermits; (Section5)

(d) conduct research on pesticides and alternatives and monitor pesticide use and presence in the environment. (Section 19) (7) provide for certification of applicators by the States under

a program approved by theAdministrator. In addition, the States would be authorized to issue conditional registrations for pesticides intended for local use; and States could impose greater regulation on a pesticide than that of the Federal Government. (Sections 4 and 23)

(8) limit appropriations to carry out the Act to the period ending June 30, 1975.GENERAL EXPLANATION OF 

### H.R. 10729
This bill provides for the more complete regulation of pesticides in order to provide for the protection of man and his environment and the enhancement of the beauty of the world around him.

Pesticides affect the food man eats, the water he drinks, the air he breathes and the flora and fauna that surround him and provide him with beauty, recreation, and inspiration. They are necessary to keep his home free from vermin, to protect him from diseases spread by insects, rats, and other vectors, protect his possessions from termites and other destructive insects, and beautify his lawns and parks.

Pesticides are essential to man's food supply both as to quality and quantity. A generation ago consumers could expect to find occa- sional wormsin apples and more frequent worms in sweet corn. Today

we are blessed with wholesome, attractive, pest-free foods, processed, packaged, and marketed under clean and sanitaryconditions. We have

an abundance of food at reasonable prices.

Farm Production has increased by 156 percent since the 1935-39 period notwithstanding the fact that approximately 50 million

acres were retired from production in 1970. And this level of production has been achieved in spite of thefact thatthefarm population has decreased from about 30 million persons to about 9.4 million persons.

More than200 million persons in the United States, andmany more millions throughout the world, now depend upon these farms and farm operatorsfor mostof their food and fiber.All ofusare consumers. As consumers we all benefit from the increased efficiency and use of modern technology in the production and marketing offarm products.

When we go to market we can choose from over 6,000 different food itemsincluding fresh, frozen, canned, concentrated, dehydrated, ready-mixed, ready-to-serve, or in heat-and-serve form. Today, farmers feed over 70 million more persons in this country than they did in the late thirties. Consumers are now required to devote less of their income for a wider variety and higher quality of food than they did before. In 1972, only 15.8 per cent of disposable income was spent on food as compared to 23 per cent in earlier years. Compare this to 30 percent inEurope.

. 50 per cent inthe Soviet Union. and as high as 90 per cent in many other countries.

American food is the best buyin the world. Pesticides are important in the preservation of natural beauty. As examples of the unpleasant effects caused by insects in the absence of effective pesticides, the following are quoted from a pamphlet on the gypsy moth published by the Department of Agriculture in April of this year. Gypsy moths have been in this country since 1869, when imported specimens escaped during experiments being performed by a Massachusetts naturalist. Extensive FederalState efforts confined gypsy moth destruction to NewEngland, New York and Pennsylvania for many years. But, in 1958, concern over the possibility of environmental contamination caused a switch from large-scale spraying of
DDT to limited application ofless persistent insecticides.

In recent years, gypsy moth populations have built up to alarming levels, with spread occurring throughout much of
the Northeast and into parts of the South. The nearly 2 million acres of trees defoliated in 1971 doubled the acreage stripped in 1970, was six times more than in 1969, and was twelve times more than recorded in 1968.

The gypsy moth is a European insect and is one of the world's worst forest pests. They are harmless in the moth stage, but as caterpillars feed on the leaves of forest, shade, ornamental and fruit trees. A single complete defoliation can kill some softwood trees; two or more defoliations can kill
many types ofhardwoods.

Gypsy moth infestations leave their mark on urban and suburban areas, as well as forests. Caterpillars cover sidewalks and get into water reservoirs, stores, homes and swimming pools. They make parks and other outdoor recreational facilities temporarily unusable and lower property values with tree-killing defoliations.
While appropriate pesticides properly used are essential to man and his environment, many constitute poisons that are too dangerous tobe used for any purpose. Others are dangerous unless used extremely carefully, and some may have long lasting adverse effects on the environment. Some may be taken sip in the food chain and accumulated in man and other animals. Improperly used they may endanger bees and other useful insects, birds, and other animals and their food supply. Pesticides may cause injury through accidental ingestion, inhalation or deposit on the skin. Pesticides therefore have important environmental effects, both beneficial and deleterious. Their wise control based on a careful balancing ofbenefit versus risk todetermine what is best for man is essential.

At present the Federal Insecticide, Fungicide and Rodenticide Act provides for the labeling of pesticides with appropriate directions for their use and cautions and warnings. If a pesticide is such that when used in accordance with its label or common practice it is injurious to man, other vertebrates, or useful plants, it cannotbe registered under the Act and cannot be sold or distributed in interstate commerce. Ifa chemical is registered and it subsequently appears that under the foregoing criteria it should not have been registered, its registration may be cancelled; and in case of imminent hazard its registration may be immediately suspended pending the completion of cancellation proceedings.

But there is no prohibition at present against the misuse of a registered pesticide. There also is no control under the Act for pesticides distributed entirely within a single state. The provisions ofH.R. 10729

are needed to correct these and other deficiencies in the lawin order to provide effective control. Some of the major changes provided for by the bill are as follows:(1) Restrictionson use.-Section 12(a)(2)(G) prohibits the use of any pesticide in a manner inconsistent with its labeling. Section 2(q) designates a pesticide as misbranded in certain circumstances, one being that when used in accordance with its label or commonly recognized practice it causes any injury to man or any substantial adverse effects on environmental values, taking into account the public interest, including benefits from the use of the pesticide.

ection 3(d)(1)(C) provides that if the pesticide, when used in accordance with its label or commonly recognized practice, may cause, without additional regulatory restrictions, any injury to man or any substantial adverse effects on environmental values, taking into account the public interest, including benefits from the use of the pesticide, it shall be classified for restricted use and subjected to additional restrictions. If it is so classified because of a determination that the acute dermal or inhalation toxicity of the pesticide presents
a hazard to the applicator or other persons it would be required to be applied only by or under the direct supervision of a certified applicator. If it is so classified for any other reason, it would either be required to be applied only by or under the direct supervision of a certified applicator, or subject to such other restrictions as the Administrator may determine. By comparing these provisions with each other and with existing law, it can be seen that (1) they provide for a more finely tuned control of pesticides which will more easily permit their beneficial use and prevent their misuse; and (2) few pesticides which are now registered would be classified for restricted

use. Since the present criteria for registration, the criteria for registration under the bill, and the criteria for restricted use classification under the bill are essentially similar, except for the provision for additional restrictions in connection with classification for restricted
use, it follows that currently registered pesticides were at the time of registration found to be safe based on present criteria without the imposition ofsuch additional restrictions. The Committee understands that EPA is engaged in upgrading its criteria (as to safety and effectiveness) for the registration of pesticides and expects to use the revised criteria for the classification of existing pesticides under the new Act. Also because of research and other information being accumulated on the risks and benefits associated with pesticides, this will warrant

some pesticides being placed in the restricted category. The effect of classification for restricted use therefore is to provide for additional regulatory restrictions, additional to those on the label, which will make the pesticide safe to use and thereby bring it within the criteria for registration. The difference between restrictions in use shown on the label and additional regulatory restrictions imposed on restricted

use pesticides is that the additional restrictions may more easily be changed as conditions warrant, and that in many cases it would be

more appropriate to control the use or the making available for use of a pesticide through general regulations than through its labeling. In order to change the restrictions on the label or labelling, the Administrator might have to start cancellation proceedings. Regulatory restrictions may be changed promptly byissuing anew regulation

or by exercising authority provided for in the existing regulation. The additional regulatory restrictions thus constitute a tighter form of control.Section 12(a) (2) (F) makes it unlawful to make available for use or use any restricted use pesticidecontrary to suchregulations, and section 12(a)(2)(G) makes it unlawful to use any registered pesticide in a manner inconsistent with its labeling. By prohibiting the misuse of pesticides, these provisions protect the environment and also prevent the growth of commonly recognized practices which would require the cancellation of registration of a pesticide, thereby assuring the continued use of pesticides in a manner designed to protect andimprove the environment.

(2) Extension to actionsentirely within a singlestate.-The existing law prohibits the sale or distribution of unregistered pesticides in interstate commerce. Section 3 of the bill would extend this prohibition to any commerce so that pesticides produced and sold in a single state would be subject to federal registration and all of theprohibitions of the Act.

(3) Strengthening enforcement, proprietary rights in test data, and additionalauthorities.-Allof these provisions are designed toprovide for tighter control of pesticide registration and use to insure protection to man and the environment. Registration of pesticide producing establishments will aid the Administrator in tracking down violations and accidental discharge or spillage. Stop sale, use, or removal orders and seizures will provide immediate means for preventing the use of dangerous pesticides. Improved procedures for registering and can- celling registration will speed desirable pesticides to the market and speed the removal of undesirable pesticides. Giving applicants pro- prietary rights in their test data will encourage applicants to spend the money necessary to test their products fully and assure their safety. Requiring subsequent applicants to make their own tests will serve as a double check on the original test procedures and either provide double assurance that the products are safe or show up their shortcomings.

HiSTORicAL BACKGROUND

The use of chemicals in agriculture began with the trend toward intensive farming in the mid-19th century. Cultivation of specialized crops created imbalances in nature which provided insects and other pests ideal conditions in which tomultiply.

As an example, the Colorado potato beetle in 1850 lived on local plants and maintained a balanced population in its natural environ- ment. When the early settlers planted potatoes, the beetles were furnished a vast new su1)lly of food. They multiplied. They became a pest to the new settlers and spread eastward to other potato fields as a result of their own population pressure. Nothing was effective against this new pest until the arsenic compound, Paris green was applied.

By the latter half of the 19th century, United States agriculture
was well on the way toward becoming a commercial production industry. Progressive scientific farming was promoted by the founding of the land-grant colleges, the agricultural experiment stations, and the creation of an extension-education system. These institutions, together with the United States Department of Agriculture, made up an extremely effective organization of applied research, informational and demonstration programs, and consulting services for farmers.

### 7
As a result of these developments in which the increasing use of chemical pesticides played an important role, most of U.S. food supplies and substantial quantities offood forexport are now produced by fewer than5percent ofthepopulation.

FEDERAL INSPECTION 

### ACT OF 

### 1910
As early as 1910 the distribution and use of chemical pesticides reached a level which required Federal regulation for the protection of users, consumers and the general public. Federal regulation of pesticides began with the enactment of theFederal Insecticide Act of 1910, although State regulation was undertaken in some States at an even earlier date.

The Federal Insecticide Act of 1910 prevented the manufacture, sale or transportation of adulterated or misbranded insecticides and fungicides and authorized regulation of sales of insecticides and fungicides.

Asthenumber andvariety ofchemical pesticides manufactured and used increased, individual States increased the scope of their regula- tions. In 1946 the Council of State Governments developed a uniform insecticide, fungicide and rodenticide act for the consideration of and adoption by the individual States. At the same time the Congress began holding hearings on proposed more comprehensive Federal legislation. 

### FIFRA ENACTED



### In June 1947, the Insecticide Act of 1910 wasrepealed and replaced by the Federal-Insecticide, Fungicide and Rodenticide Act. By this time great. changes had occurred in the field of chemical pesticides,
or economic poisons. New plant materials and synthetic chemicals developed through both private and publicly-financed research had greatly increased the number of pesticides available and widened the scope of their usefulness. DDT and herbicides were becoming increasingly important.

The 1947 Actrequired: 1. The registration of economic poisons or chemical pesticides priorto their sale or movement in interstate orforeign commerce.

2. The prominent display of poison warnings on labels of highly toxicpesticides.

3. The coloring or discoloring of dangerous white powdered insecticides to prevent their being mistaken for foodstufs.

4. Theinclusion of warning statements on the label to prevent injury to people, animals and plants.

5. The inclusion of instructions for use to provide adequate protection for the public.

6. That information be furnished the administrator of the Act withrespect to the delivery, movement, or holding of pesticides. This Act was designed to work in harmony with the uniform State insecticide, fungicide androdenticide actwhich was adopted in many States.MILLER AMENDMENT 

### In 1954 pesticide regulations were expanded further by an amendment to the Food and Drug Act authorizing its administrator to set tolerance limits for the residues of pesticides on foods.

This provision, known as the "Miller amendment," requires the pretesting of a chemical pesticide before it can be used onfood crops. The manufacturer isrequired to provide detailed data to demonstrate to the administrator of the Federal Pesticide Act (FIFRA) that the chemical is useful to agriculture and how much residue, if any, will remain in or on a food crop after application.

The manufacturer must also supply scientific data on the toxicity of the chemical to warm-blooded animals. It is from these data and from their own research that the Federal Food andDrug Administration sets a tolerance ormaximum amount ofresidue which maylegally remain in or onthe food crop when it is marketed.

1959 AMENDMENTS 

### After 1947 several new types of agricultural chemicals, generally referred to asnematocides, defoliants, desiccants, andplant regulators
were developed and acquired widespread commercial use. Nematocides were used to control nematodes, or very small eelworms which attack theroots ofplants. Defoliants werefound useful to make leaves drop from plants to facilitate mechanical harvesting of the crop. Desiccants also were founduseful in drying plant tissues to facilitate harvesting the crop. And, plant regulators were found useful under some conditions in regulating the growth processes of plants.

In 1959 the 1947 Act was again amended to include these products under the general regulatory provisions for economic poisons on chemical pesticides.

INCREASING CONCERN IN THE 1960's 

### In the early 1960's increasing public concern regarding the longer run public health and ecological effects of some of the chemical pesticidesledto thecreation ofa Presidential Scientific AdvisoryCommittee which made a number ofrecommendations in its 1963 report.

It concluded among other things that, 1. Monitoring programs to obtain systematic data on pesticide residues shouldbeexpanded.

2. Federal research programs concerned with pesticides should be expanded and coordinated.

3. A broad educational program emphasizing the hazards in 

### the use ofpesticides should be undertaken. It also recommended amendments to existing pesticide legislation to: 1.Eliminate "protest" registrations. 2. Require each pesticide to carry a license number identification, and

3. Include fish and wildlife as useful vertebrates and invertebrates under the Federal Pesticide Act.

### It was the consensus ofthat committee that mankind mustcontinue to fight insects and other pests in the most efficient manner possible, and that an integrated program involving chemicals was absolutely necessary. 1964 AMENDMENTS



### In 1964, amendments to the Federal Insecticide, Fungicide and Rodenticide Act of 1947 were adopted which, as recommended, eliminated protest registration and authorized each pesticide to carry a license number identification. The 1964 amendments also expedited procedures for suspending the marketing of previously registered pesticides which were found to be unsafe.

At that time, the Departments of Agriculture, Interior and Health, Education, and Welfare entered into an interdepartmental agreement, which among other things established procedures for resolving any differences they might have with respect to the licensing and regulation of new pesticides.

The appropriate use of chemical pesticides and the adequacy of existing regulations has continued to be widely discussed in the public forum.Various committees ofboth theHouse and theSenate have held bearings, studied the problem, and issued reports on pesticides and public policy and deficiencies in the administration of the Federal Insecticide, Fungicide and Rodenticide Act.

Two years ago the Department of Health, Education, and Welfare appointed acommission onpesticides and theirrelationship to environmental health. Over5,000 references topublished and ongoing scientific research werereviewed and evaluated by this Commission. It made a number of recommendations in November, 1969, which were con- sidered by all agencies involved in regulations and research relating to pesticides andtheir use.

CREATION OF ENVIRONMENTAL PROTECTION AGENCY


### A year later, President Nixon proposed a reorganization of the agencies of the Federal Government dealing with pesticides to more effectively deal with the problems in this area. In December, 1970, he transferred the pesticide and pure food regulatory staffslocated in the Departments of Agriculture, Interior, and Health, Education, and Welfare to a newEnvironmental Protection Administration.

PESTICIDE LEGISLATION PROPOSED


### In February 1971 the President submitted the legislative recom- mendation which along with other proposals before the Committee became the basisfor this bill.

COMMITTEE DELIBERATION 

### The Subcommittee on Agricultural Research and General Legislation held open hearings on four bills, S. 232, S. 272, S. 660, and S. 745, all of which deal with pesticide regulations, during the period March 23-26, 1971. All who wished to testify were provided an opportunity. Statements were presented to the subcommittee by a total of 70

69-643 0---72----2witnesses. A number of other letters, statements, reports, and recom- mendations were alsoformally furnished the Committee in connection with the hearings.

Subsequently, on March 7 and 8, 1972, additional open hearings

were held on aHouse passed pesticide bill, H.R. 10729, and a Commit- tee Print thereof prepared especially for this purpose. At this time a total of 89 witnesses presented statements. As in the previous hearings additional papers were also made available to the Committee.

A listcomprising 86 typewritten pages of all amendments proposed to H.R. 10729 and reasons therefor was prepared for subcommittee consideration. Subsequently Committee Print No. 2 was prepared illustrating a number ofsuggestions for amendments to the bill. The subcommittee, in executive session considered all of these, as well as other amendments. Most were accepted and are shown below:

AMENDMENTS RECOMMENDED BY THE SUBCOMMITTEE (1) delete "pesticide" from "certified pesticide applicator" to avoid confusion with certified public accountants (CPA's);

(2) give EPA discretion as to the necessity for the physical presence ofa certified applicator;

(3) define "imminent hazard" to include a situation involving hazard to survival of an endangered species; 4) define "ingredient statement" to require all pesticides to show the name and percentage of each active ingredient and the total percent of inert ingredients;

(5) require the establishment registration number to be shown
on the label (rather than on accompanying labeling);

(6) classify a pesticide as misbranded if "when used in ac- cordance with the requirements of the Act or commonly recog- nized practice" it causes substantial adverse effects on the environment;

(7) exclude non-toxic, vitamin-hormone products not intended for pest destruction from the definition of "plant regulator";

(8) leave the determination of what is a trade secret to the courts (rather than the Administrator);

(9) add to the provision for proprietary rights in test data a proviso permitting the Administrator to refer to any applicant's test data in evaluating the adequacy of another applicant's test data;

(10) give the Administrator discretion togive an applicant more than thirty days to make corrections;

(11) permit "other interested persons with the concurrence of the registrant" to contest the denial, cancellation, or suspension of registration, or a change in classification, where the registrant fails to do so;

(12) authorize the Administrator to require pesticide packaging and labeling for restricted use to be clearly distinguishable from packaging and labeling for general use;

(13) make restricted classification depend in part on the hazards involved in the use of a pesticide "in accordance with a commonly recognized practice" ;

(14) make it clear that EPA can withdraw its approval of a state certification plan;

## 1-1
(15) allow the Administrator to permit continued sale or use of
a pesticide whose registration is cancelled where not inconsistent with the purposes of the Act;

(16) require submission of all scientific questions "at the outset of the hearing" to prevent delays through additional references while the hearing is proceeding;

(17) provide for entry by EPA of any place where pesticides or devices are held for distribution or sale (as well as manufacturing establishments);

(18) permit the Administrator (rather than the President by executive order in emergency conditions) to exempt federal or state agencies;

(19) require the Administrator to solicit theviews of the Secretary of Agriculture before publishing regulations;

(20) authorize the Administrator to utilize the cooperative state extension services in providing information to farmers;

(21) make it clear that a state may provide registration tomeet specific localneeds (subject to disapproval by the Administrator);

(22) give the Administrator discretion as to which provisions of section 2(q)(1) (definition of misbranded) or section 7 (regis- tration of establishments) shall be applicable to any class of device;

(23) extend the appropriation authority for the Act one year to fiscal 1975; and

(24) prohibit EPA from charging fees, other than reasonable registration fees. Four amendments were passed for submission to the full Committee for its deliberation without subcommittee recommendation as follows:

Amendment 1, would authorize third parties to petition for can- cellation or suspension and obtain judicial review. There were three alternative proposals: (A) NACA proposal would make registration prima facie evidence of compliance for all purposes, provide for cancellation in contested cases only on the basis of scientific data not considered at time of registration, strike the provision for hearings initiated by the Administrator, and provide for judicial review in such

cases in the district court;

(B) Hart-Nelson Amendment No. 1010 provided for review in such cases in the circuit court,prohibited stay ofan agency action unless the party seeking the stay was likely to prevail and would suffer irreparable harm;

(C) EPA proposed appeal to the circuit court and indicated that the Hart-Nelson provision for a stay duplicated that already in the bill. EPA recommended an alternative version. Amendment 2 would strike out the provision for indemnities to owners of pesticides for which registration isfirst suspended and then cancelled.

Amendment 3 would providefor citizens' civil actions forinjunctive relief against the United States, the Administrator, or any other person. EPA suggested an alternative which would (i) limit it to cases against producers, applicators, and the Administrator; (ii) specify
venue in the district in which the violation occurred, or in the case of suits against the Administrator, the District of Columbia; (iii) strike the provision for citizen intervention in U.S. suits and provide for12

intervention by the U.S. (rather than the Administrator) in citizens suits; and (iv)provide for consolidation of like citizen suits.

Amendment 4 would strike the provisions of section 3(d)(1)(C) authorizing the Administrator to impose restrictions other than the requirement that the pesticide be applied by or under the direct supervision of a certified applicator.

Committee Print No. 3 was then prepared showing all of this action and was used by the full Committee as a basis for its deliberations.

The full Committee considered the bill submitted by the subcommittee on June 7, 1972.

The amendments recommended by the subcommittee were adopted and decisions were made on the four amendments presented by the subcommittee without recommendation.

With respect to Amendments No. 1 and No. 4 the full Committee adopted compromise proposals as follows:

The compromise proposal for Amendment 1- (a) makes registration prima facie evidence of compliance only aslong as no cancellation proceedings are pending;

(b) continues the present clear criteria (compliance with the Act) for cancellation proceedings;

(c) provides for the initiation of cancellation proceedings either by notice of intent to cancel, or notice of intent to hold a hearing (so that the Administrator may have the benefit of more information before he decides to cancel);

(d) provides for hearings on suspensions except in emergency situations;

(e) provides for judicial review by the court of appeals in all cases where there has been an administrative hearing and by the district court in all cases where there has not been an administrative bearing; and

(f) makes it clear that any person who will be adversely affected by an order may obtain judicial review. Before adopting this compromise proposal, the Committee con- sidered all of the numerous amendments submitted to clarify the procedure forjudicial review, third-party participation in the administrative decision-making process, and the grounds which permit the Administrator to cancel a registration before a five-year period. The procedures adopted carry forward the language of present law by which the Administrator cancels where a substantial question exists. Under present practice third-parties may request the Administrator to review new data and determine whether formal proceedings should be commenced. The Committee action permits persons adversely affected to continue to be able to request review of the status of a registration and adversely affected persons, like users, also to par- ticipate in the administrative process. The language "adversely affected" is in present law and the Committee has rejected the House language which refers to "interested persons" so as to avoid any implication of desiring to change present law.

The Committee has determined that the Administrator should be able to call a hearing when he believes it useful rather than issue a notice of intent to cancel. Such a procedure permits theAdministrator to initiate formal review withoutplacing astigma on aproduct when he is not convinced that the registration should be cancelled. It also

### permits the Administrator to proceedwithout automatically cancelling ifno specific request for a hearing isreceived.

After a hearing judicial review on petition by any person adversely affected is properly lodged in the courts of appeals, since an adequate record exists for such review. Where, however, the Administrator hasdetermined no substantial questionof safetyexists which warrants formal review, and thus has refused to hold a hearing, review should beby a district court since there isno record for the court of appeals.

The Committee has also provided for expedited hearings on questions of suspension so that the procedure will be analogous to cancellation. Where a suspension actionis taken prior to ahearing, a district court could stay the suspension pending the Administrator's deterrnination after a hearing except such stay shall be dissolved at the time the Administrator issues a decision. If, after the hearing, the Administrator determines to suspend, the order becomes effective and any district court restraining order is dissolved, and the power to stay the Agency's order shall rest with the courts of appeals.

The Committee has also endorsed the House bill which eliminates the two-step pr3,.Udure in present law requiring review by a scientific advisory committee followed by a public hearing. The House bill substitutes a procedure whereby at the start of a public hearing relevant questions of scientific fact are referred to a Committee ofthe National Academy of Sciences as part of the hearing procedures.

The compromise proposal for Amendment 4 leaves the Administrator with broad power to impose such regulatory restrictions

as may be necessary, but gives any person adversely affected by such regulations 60 days to petition the court of appeals for review of such regulations.

The Committee adopted Amendment No. 2 and turned down Amendment No. 4. In addition it considered several minor amendments adopting several including technical amendments.

Inconnection with striking theindemnity provisions the Committee felt thatwiththetighterregulation provided bythebill, suspension and cancellation should rarely be necessary; andthat on such rareoccasions it should be possible to permit existing stocks to be used up in a safe

manner. In this connection the Committee considered the following letter from Mr. David D. Dominick, Assistant Administrator, E.P.A., outlining the method to be used by EPA in cancelling registration:

ENVIRONMENTAL PROTECTION AGENCY, 

### Washington,D.C.,May 10, 1972. Hon. HENRY BELLMON, 

### U.S. Senate, Washington,D.C.

DEAR SENATOR BELLMON: You may 

### recall that during our discussion of H.R. 10729, the proposed legislation for the regulation of pesticides, you were concerned that EPA have the flexibility to continue a registration for use during a growing season, even though

we have determined after a hearing that the registration should be cancelled.



### I believe our present authority under H.R. 10729 is sufficiently flexible to permit an orderly phase-out where farmers have relied on a pesticide for use during an upcoming growing season. It is open toregistrants and usergroups toraise at thehearing any question bearing

on the benefits ofusing a product. Any showing of need for a pesticide during an upcoming season would be relevant and the statute would permit us to issue an order that would result in a label use for agiven

season or period of time or indeed in a certain geographical location. It would be our policy to invoke this flexibility on a showing by affected groups that the particular chemical were needed for the growing season.

While I am reasonably confident that we have such flexibility, (see the attached memorandum), I think a few words to this effect in the Senate Committee Report could nail the situation down.

On a related subject, this matter underscores the importance for broad public participation in our regulatory process. As the law stands
at present, users and interested groups, like environmentalists, have standing to participate in our decisions. The House bill has changed the language in the present act. It is our view that this change in language does not create a change in substance in view of the case law which does not suggest that courts view these two phrases differently. While we do not believe a change back to the original FIFRA language is required, the Committee may wish to include language in the Committee report which would clarify what we believe to be the case. Sincerely, DAVID D. DOMINICK,

AssistantAdministrator 

### JorCategoricalPrograms.

The Subcommittee recommended and the full Committee approved the following comments:

1.A number of witnesses recommended amendments to specifically require the labeling to bear directions and warnings toprotect farmers and others coming into contact with pesticides or residues; prohibit

use of test data unless the tests were legal and voluntary; specifically mention danger to farmers and others coming incontact withpesticides

orresidues as a ground for restricted use classification; and specifically require certified applicators to have the ability to guard against such danger. The bill, as reported by the Committee, provides complete safeguards to protect farmers and others coming into contact with pesticides or residues. It does so in general terms that are very broad and cover much more than would be covered by the proposed amendments. The Committee felt that by specifically mentioning particular

areas protected by the general provisions, there might be some suggestion that the general provisions should be construed to cover less than actually intended. Section 2(j) of the bill defines "environment" to include all men, whether they come into contact with the pesticides

or pesticide residues, or not. Sections 2(q)(1) (F), (G), and (H) and 3(c)(6)(C) are designed to protect all men. The Committee believes there can be no question about the matter, but takes this occasion to emphasize that the bill requires the Administrator to require that the labeling and classification of pesticides be such as to protect farmers, farm workers, and others comingin contact with pesticides orpesticide residues.2. A number of witnesses supported amendments to- (1) add a new definition, defining "unreasonable adverse effects

on the environment",

(2) provide for use of the new definition in section 3(c)(5)(C) providing for approval ofregistration, and

(3) strike out thelast sentence ofsection 3(c)(5) whichprohibits denial ofregistration because of "lack of essentiality". The Environmental Protection Agency advised the Committee that it would construe the new definition to have exactly the same meaning

as thatfor "substantial adverse effects on the environment" in section 2(bb) of the bill, that adoption of the new definition would require additional changes throughout the bill, and that striking out the last sentence of section 3(c)(5), which prohibits denial of registration because of "lack of essentiality", would make no difference in the

manner in which the bill was carried out. With respect to lack of essentiality, EPA said:
We believe thepresent language ofsection 3 (b) is preferable since it states Agency policy. Where two products pose the

same degree of risk and are equally necessary and effective,

one should not be registered in preference to the other. Of course, where the same control can be achieved more safely than with aproduct whichisbeing examined, the definition of "substantial adverse effects" in section 2(bb) would itself mandate consideration of the alternatives. Consequently the Committee did not adopt these amendments.

3. Dr. Ralph E. Heal, Executive Secretary of the National Pest Control Association, raised the following question at the Committee's hearings on this bill:
At the hearings on S. 745 last year, our Association asked for an amendment that would permit enough flexibility in interpretation of label instructions to permit our industry to control certain minor pestslegally under circumstances where

no pesticide had been registered for the control of that pest. H.R. 10729 provides wording that could be interpreted

as giving this flexibility when it says "Section 12(a) (2)(G) It shall be unlawful for any person to use any registered pesticide in a manner inconsistent with its labeling." The Report of the House Committee on Agriculture, No. 92-511, discussed theinterpretation of "inconsistent," recommending that it be applied in a common sense manner (page 16, item 11). The illustration used, however, dealt with concentration ofpesticide rather than species of pest to be controlled.

We again ask your consideration of this question. A preliminary check has shown that we have no effective pesticide registered for the following pest problems: Honey bees nesting in a house. Book lice in a home. Strawberry root weevil invading a home. Springtails in an office. Box elder bug invading a house.

### Carpenter bees in the siding of a house. Bamboo borer in furniture. Fungus beetles in a home. Elm leafbettles invading a home. Wax moths from abandoned honey comb in a wall. The blood sucking cone nose bug. Undoubtedly there are many more. We cannot expect a manufacturer to go to theexpense ofregistering a productfor the control of minor and occasional pests such as these. But these pests can be controlled by pesticides that have been registered for control ofother pestsin comparable locations or environments. It would be helpful in thecause of permitting
us tobe alaw-abiding industry ifit wererecognized that such
a use of a pesticide would not be "inconsistent" with its labelling. If we can help in any way in formulating such a clarification we would want to do so. This bill would regulate the use of a pesticide for the first time. It is not the intention of the Committee to prohibit any use which isinno way harmful, and which has only beneficial effects on man and his environment. The Committee considered an amendment to the bill to assure that such use would not be prohibited, but concluded that this was amatter which would have to be left to the good sense of the Administrator, the manufacturers, and the users. It is thehope of the Committee that byproper administration of thelabeling requirements and administrative interpretations of thelaw and the labels approved by him, the Administrator will be able to make it clear to users that such uses are notprohibited. Further, it isthe belief ofthe Committee that the use of the word "inconsistent" should be read and administered in a way so as to visitpenalties onlyupon those individuals who have disregarded instructions on a label that would indicate to aman of ordinary intelligence that use not in accordance with such instructions might endanger the safety of others or the environment. Thus, for example, itwould be expected that use of a general, unrestricted pesticide registered for use on enumerated household pests to exterminate a pest not specified on the label would not be inconsistent with the labeling. On the other hand, the use of even a general use pesticide in a manner inconsistent with a specified caution or restriction on the label should be considered inconsistent with the labeling. For example, the use in the home of a general use pesticide labeled "for use outdoors", or "not for use in enclosed areas", would be prohibited under this provision.

4.The Senate Committee considered the decision of the House Committee to deprive political subdivisions of States and otherlocal authorities ofany authority orjurisdiction over pesticidesand concurs with the decision of the House of Representatives. Clearly, the fifty States and the Federal Government provide sufficient jurisdictions to properly regulate pesticides. Moreover, few, ifany,local authorities whether towns, counties, villages, or municipalities have thefinancial wherewithal to provide necessary expert regulation comparable with that provided by the State and'Federal Governments. On this basis and on thebasis that permitting such regulation would be an extreme burden on interstate commerce, it isthe intent that section 24, by not providing any authority to political subdivisions and other local

### authorities of or in the States, should be understood as depriving such local authorities and political subdivisions of any and alljurisdiction and authority over pesticides and the regulation of pesticides.

5. Sec. 164.31(c) of the rulesof procedure which were proposed and published in theFederal Register ofJanuary 22, 1972, would authorize any witness testifying in a review proceeding under the Act to record his testimony for subsequent televising or broadcasting. The Committee disapproves of this provision. The review proceedings authorized by section 6 are adjudicatory in nature. As such they are subject to the various statutory and constitutional provisions relating to adjudicatory hearings. The purpose ofthe hearings is to provide a record of competent scientific evidence for the consideration of the Administrator in making his decision as to whether or not a registration should be granted or denied. The obligation is on the Administrator to make this decision based upon the record as a whole and not upon any one part of the record. Televising or broadcasting is of necessity related tojust one portion of a witness' testimony. It would of necessity exclude any cross-examination or other testimony which would raise a question as to the qualifications of the witness or the validity of this testimony.

The rules published on May 11, 1972, did notinclude the provision discussed above, and the Committee does not approve of their inclusion at any later date.

COST ESTIMATE



### In accordance with section 252 of the Legislative Reorganization Act of 1970, the Committee agrees withthe costestimates submitted by the Environmental Protection Agency for new activities required 

### by the bill. No costs would be incurred under the bill in the current fiscal year. Costs would amount to $15.0 million in FY 1973; $22.3 million in FY 1974; $30.8 million in FY 1975; $32.2 million in FY 1976; and $31.4 million inFY 1977.

SECTION-BY-SECTION ANALYSIS


### Sections 1, 3, and 4 of H.R. 10729 deal with matters that do not directly amend the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Section 1 ofH.R. 10729 sets forth the popular Act citation of this bill as the "Federal Environmental Pesticide Control Act of 1971."

Section 3ofH.R. 10729 amends the Federal Hazardous Substances Act, the Poison Prevention Packaging Act, and the Federal Food, Drug, and Cosmetic Act to change the term "economic poison" to the term "pesticide" in order to reflect the change in FIFRA.

Section 4 ofH.R. 10729 deals with effective dates of various pro- visions.



### This section provides that except as otherwise noted hereafter the amendments to the Act are effective upon enactment. If regulations

are required prior to effectuation of an amendment they shall be prescribed within 90 days after enactment. Provisions of present law

are in effect until superseded as provided above or hereafter, and all amendments are required to be effective within four years of enactment.

69-643 o-72-3aThe following exceptions to immediate effectiveness of amendments enacted are made:

(1) All new registrations ofpesticides after such regulations are promulgated shallbe in accordance withregulations governing registration and classification promulgated within two years of enactment of this Act.

(2) All registrations existing prior to promulgation of the above regulations shall be re-registered and classified in accordance with those regulations after two years but within four years of enactment of the Act.

(3) Any requirements that a pesticide can beused onlyby a certified pesticide applicator shall not take effect until four years from enactment.

(4) Certification of applicators shall take place during a four year period from the date of enactment. Standards for certification shall have been prescribed one year from enactment. State plans for certification shall have been submitted to the Administrator within three years from enactment. Within one year of such submission the Administrator must approve the State plan, or disapprove and state reasons.

(5) One year from enactment the Administrator is to have in effect regulations governing the registration of establishments, experimental
use permits, and the keeping of books and records.

In addition to the foregoing, the Administrator shall publish in the Federal Register regulations relating to criminal and civil penalty, and no person shall besubject to such apenalty under the amendments of this Act until 60 days after the Administrator has published the final regulations and taken such other action as may be necessary to permit compliance.

The present FIFRA shall be treated as continuing in effect as if this Act had not been enacted where a question arises as to a criminal
or civil penalty or liability to any third person in respect to any act or omission occurring before the expiration of the periods referred to in this section.

FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
SectiOn 2 of H.R. 10729 rewrites FIFRA into the following 27 sections:

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS

This section provides that the Act may be cited as the "Federal Insecticide, Fungicide, and Rodenticide Act" and provides a detailed table of contents of the Act.

SECTION 2. DEFINITIONS
Section 2 includes many of the definitions in the present FIFRA, with several important changes or additions.

A "certified applicator" is one certified by the State or Federal government according to standards prescribed by the Administrator to use restricted use pesticides.

### 19

A "private applicator" is a certified applicator who uses restricted
use pesticides only on his own or his employer's property, or on the property of another without compensation.

A "commercial applicator" is any certified applicator other than a private applicator.

A requirement imposed on the application of restricted use pesticides is clarified by the definition of "Under the direct supervision of a certified applicator," which canmean that thecertified applicatordoes not have to be physically present at the site of application if theperson applying the pesticide is competent and properly instructed. However, the Administrator may require the physical presence of the certified applicator if the pesticide poses a particular threat to health or the environment which requires close supervision.

The definition of "ingredient statement" is amended to make one requirement applicable to all pesticides rather than making two alternatives available.

The definition of "misbranded" is amended toinclude requirements based on other provisions of the Act. For example, labels must bear
an establishment registration number and use classification.

"Protect health and the environment" is defined, and includes the requirement to take into account the public interest. "Substantial AdverseEffects on the Environment" contains the same requirement.

SECTION J. REGISTRATION OF PESTICIDES 

### Subsection (a) requires that all pesticides in the channels of U.S. trade must be registered with the Administrator. Under present law only those pesticides in interstate commerce have to be so registered.

Subsection (b)exempts from registrationpesticides which are transferred from one establishment to another operated by the same pesticide producer, and pesticides transferred in accordance with an ex- perimental use permit.

Subsection (c) sets forth registration procedures. Each application for aregistration must include thename and address of the applicant; the name of the pesticide; the labeling, claims, and directions for the pesticide; a description of tests made and results if the Administrator requests;.the pesticide formula; and a request for classification. Tests made and their results are not to be considered by the Administrator, without permission of the applicant, in support of any other applica- tionfor registration, but may be used to determine the adequacy of an applicant's data.

This subsection requires the Administrator to publish guidelines concerning registration information he will require.

He is also required to make available to the public within 30 days after he registers a pesticide the data called for in the registration statement together with such other scientific information as he deems relevant to his decision except for trade secrets as provided under section 10.

Under this subsection, the Administrator isrequired to approve or deny registration as expeditiously as possible. He is to publish in the Federal Register notice of applications received for the registration of those pesticides containing a new active ingredient or for which a changed use pattern is proposed.The subsection provides that the Administrator shall approve a registration if he determines that, when considered with any section 3(d) restrictions, the pesticide warrants the claims made for it, its labeling complies with the Act, and it will not have substantial adverse effects on the environment when properly used. If such determination cannot be made the Administrator shall notify the applicant and state why the above requirements are not met. The applicant has thirtydays to make necessary corrections. At the end of this period the Adminis- trator may, if the corrections are not made, refuse to register the pesticide and publish therefusal in the Federal Register or allow the applicant more time. The applicant or another interested person then has recourse to the administrative remedies in section 6. Lack of essentiality of the pesticide cannot be a criterion for denial ofregistra- tion. Registration may be denied because the pesticide is not effective
or because it is dangerous, but registration cannot be denied simply because the existence of an alternate means of control makes the new pesticide not essential. Pests may develop an immunity to one pesticide, or undersirable side effects or deficiencies in one pesticide may show up, making the existence of an alternate presticide desirable.

The burden of proof remains with the applicant (as in FIFRA) to substantiate the claims for the pesticide by test data and otherwise to support the registration of a pesticide. It is only after the Adminis- trator has reviewed all of the test data and any other information he may require to support a registration and has found that its composi- tion is such as to warrant the proposed claims for it, that the labeling and other material required to be sumbitted comply with theAct, and that it will perform its intended function without substantial'adverse effects on the environment that he may register a pesticide. If the applicant cannot satisfy the Administrator on the above requirements the pesticide will not be registered.

Subsection (d) provides authority for the classification of pesticides and where applicable the imposition of restrictions on their use.

Subparagraph (A) of Paragraph (1) states that a pesticide may be classified for general use, for restricted use, or both. In the case of a pesticide for both general and restricted use the bill requires that directions for each be separate and distinguishable or, ifthe Adminis- trator requires, that the packaging and labeling for each be separate and distinguishable.

Subparagraph (B) specifies that a general use pesticide is one which the Administrator has determined will not cause substantial adverse effects on the environment when applied in accordance with its directions for use and warning or caution statement, or in accordance with a commonly recognized practice.

Subparagraph (C) specifies that a restricted use pesticide is one which the Administrator has determined could cause substantial adverse effects on the environment without additional regulatory restrictions.

This subparagraph further provides that when thepesticide presents ahazard to the applicator or other persons, it must be used only by or under the supervision of a certified applicator. If the pesticide presents a hazard to the environment, it must be used by or under the direct supervision of a certified applicator, or be subject to other regulatory restrictions. Explanation: Any such regulatory restriction (other than

### 21 requirement of application by a certified applicator) would be subject to review in the appropriate court of appeals upon petition of any party adversely affected filed within 60 days after issuance of the regulation.



### The foregoing classification and restriction provisions are not contained inpresent law and (together with the provisions prohibiting any use inconsistent with the labeling and prohibiting the making available for use, or using any pesticide other than in accordance with the provisions of this subsection) constitute entry of Federal regulation into a significantly unregulated area. General use pesticides will be regulated as to labeling as all pesticides under Federal jurisdiction are regulated at present, and, in addition, will be regulated as to

use in accordance with the labeling. Registration for specific uses under specified conditions, as well as directions for use, warnings, and cautions constitute the major means to control pesticide use under present law. But there is nothing in the present law requiring that those directions, warnings, and cautions be followed. The provisions of the bill requiring compliance with the labeling, providing for classifying pesticides for restricted use, in some cases requiring that they be applied by or under the supervision of a certified applicator, and in other cases requiring them to be subject to different regulatory restrictions are the key new authorities of the bill. Such provisions enable the Environmental Protection Agency to impose a variety of restrictions as the nature and uses ofthe pesticide warrant in order to protect persons and the environment, while U.S. agriculture continues to derive the benefits of pesticides use.

The bill makes provisions for certifying pesticide applicators as competent to safely and properly use the pesticides they will apply, and provisions are made for requiring restricted use pesticides to be applied only by such a certified applicator (or a person under his direct supervision) or subject to such other restrictions as the Administrator may determine necessary. The flexibility of these provisions will allow the Administrator, in accordance with the guidelines in the Act, to establish restrictions which are suited to the degree of hazard and adverse environmental effects that could be caused by the misuse of the pesticide. For example, in some cases only the signing of a poison or pesticide register would be required while in other cases the purchaser or user might be required to certify that he has read the instructions and will apply itin accordance with such instructions. In other cases general or seasonal licenses, permits, or other forms of approval maybe required; but itisnot intended that anything similar to the "permit only" type of restriction proposed in S. 745 is to be required.

Section 3(d) (1)(C)(ii) establishes a system to assure a full and fair consideration of alternative or additional restrictions which the Administrator may wish toimpose. TheCommittee wishes to emphasize, however, that the language contained in this paragraph authorizing the Administrator to impose alternative restrictions does not constitute open-ended authorization for the Administrator. Specifically, the authorization to impose suchrestrictions does not constitute authorization to establish restrictions which would create a use-by-permit only category or other restrictions such as were disapproved in Report No. 92-511 of the House Agriculture Committee, page 15, paragraph7, or toimpose any gallonage or poundage restrictions. This does not, however, preclude the Administrator from regulating the quantity to be applied for a given use for a particular application to a particular crop in a given area at a given time, from limiting the number of applications, or from prohibiting the use thereof; nor does it preclude the Administrator from enforcing such regulations, limitations, orprohibitions through such measures as certification, the signing of registers, or the regulation of appropriate outlets for distribution. The Administrator may,indetermining such restrictions, take into account the overall effects on the environment of the probable amount of a chemical that will be used for a given purpose in u given area at a given time.

It is anticipated that the Administrator in determining upon such restrictions will coordinate them with controls which are imposed by the various states, and thus prevent conflicting or overlapping federal and state controls.

The Committeehas provided that these restrictions shallbe adopted by regulation after affording interested and adversely affected parties
an opportunity to comment. It is contemplated where hearings are appropriate the Administrator will afford the public a chance to present viewsin addition tothe formal submission ofwritten comment. In order to simplify the administration of this section, jurisdiction to review regulations issued under the authority in this section is vested in the courts of appeals. The classification of a particular pesticide for restricted use and the imposition of a particular restriction as part of its registration is, however, still subject to review under Section 6, except that no question as to the validity of regulations issued under this section shall be raised except by petitions to review in the courts ofappeals filed within 60 days of thepublication of theregulation.

Paragraph (2) requires the Administrator to notify the registrant 30 days before changing the classification of a pesticide, and to pub- lish the proposed changes in the Federal Register. Remedies for such
a registrant or other interested person are contained in Section 6.

Subsection (e) permits a registrant to register as a single pesticide products having the same formulation, claims, and identifying label designation.

Subsection (f) provides for minor changes to registrations, pro- hibits construing registration as a defense for any offense under the bill, and states the Administrator may consult with other Federal agencies on registration matters.

SECTION 4. USE OF RESTRICTED USE PESTICIDES; CERTIFIED APPLICATORS

This section provides for Federal or State certification ofapplicators of pesticides according to standards prescribed by the Administrator. A State may certify applicators if a plan submitted by the Governor is approved which designates a State agency to administer the plan; assures legal authority, adequate funds, and qualified personnel to execute the plan; provides for reports to the Administrator; and contains applicator certification standards at least equal to those prescribed by the Administrator. A State must be given due notice and opportunity for hearing if the Administrator rejects a pesticide applicator certification plan; and must maintain its certificationprogram in accordance with the plan approved by the Administrator
or approval could be withdrawn after opportunity for hearing.

The provisions for certification of applicators comprise new and important authorities for regulating pesticide use. Many restricted

use pesticides would be restricted to use by certified applicators whose misuse of pesticides could result in withdrawal of certification. In the
case of commercial applicators, such action would be extremely serious. In the case of private applicators such action would remove from them the opportunity to obtain and use restricted use pesticides

so regulated.

Further, the educational process entailed by certification provides

an opportunity not only to greatly diminish thepossibility ofinjury to persons but also injury to the environment from both misuse and,

more importantly, overuse.

SECTION 5. EXPERIMENTAL USE PERMITS
The Administrator may issue, under terms and conditions established byhim, an experimental use permit if an applicant meeds such

a permit in order to accumulate information necessary to register a pesticide. Such a permit may be revoked if its terms or conditions are violated or axe inadequate to avoid substantial adverse effects on the environment.

This section also provides that the administrator may under such terms and conditions as he may by regulation prescribed authorize any State to issue an experimental use permit. The provisions relating to State plans under section 4 apply for the issuance of experimental

use permits under section 5.

SECTION 6. ADMINISTRATIVE REVIEW; SUSPENSION
Subsection (a) provides that any registration terminates at the end of five years unless the registrant or another interested person, with the concurrence of the registrant, requests continuation of the registration. The Administrator is authorized to permit the sale and
use of pesticides whose registrations are canceled under this subsection
orsubsection (b) ifsuch sale oruse is not inconsistent with the purposes of the Act. The Administrator is required to publish in the Federal Register notice of registrations which will be canceled under this subsection.

Subsection (b) authorizes the Administrator to issue a notice of intent to cancel a registration or change its classification or intent to hold a hearing on a registration or classification if it does not appear that a pesticide is in compliance with the Act. Unless the registrant makes thenecessary corrections, or he or any other adversely affected person requests a hearing, in the case of notice of intent to cancel the notice of intent becomes a final order at the end of 30 days. In the case ofnotice ofintentto hold ahearing, orif ahearing isrequested after a notice of intent to cancel the decision reached after thehearing will be final. Subsection (c) authorizes the Administrator to issue an order of suspension if he (1) determines that an imminent hazard exists, (2) issues at the same time a notice of intent to cancel, and (3) has given prior notice to the registrant.24

When notified of the Administrator's intent to suspend, aregistrant has five days to request a hearing. If requested, the hearing must

occur within five days, and parties to the hearing can only be the registrant and the Agency, with briefs filed by adversely affected persons permitted. After the hearing the Administrator issues a final order on suspension within seven days. If no hearing isrequested, the notice ofintent to suspend becomes a final order not reviewable by a court.

Subsection (c) also provides for an emergency suspension order prior to hearing, with an expedited hearing provided in accordance with the foregoing procedures.

A final order of suspension following a hearing would bereviewable by a Court of Appeals under Section 15. Orders issued prior to a hearing are subject to immediate review in a district court to determine if they were arbitrary, capricious, or an abuse of discretion, or not issued in accordance with statutory procedures.

Subsection (d) sets forth procedures for hearings pursuant to Subsection (b) and provides for scientific review. When an applicant requests a public hearing, at the outset of such hearing any party (including the hearing officer) may refer questions of scientific fact to
a Committee of the National Academy of Sciences. Such Committee would be required to report in writing to the hearing officer within sixty days on these questions ofscientific fact and thereport would be made public and considered as part of the hearing record.

This language in thebill relating to scientific advice would maintain

a role for scientific advisory committees of the National Academy of Sciences equivalent to that in the present provisions of FIFRA. The amended language would have the further benefit of allowing the advisory committee to consider questions of scientific fact while the public hearing isin processrather than in a completely separate administrative review process which causes long delays and division of responsibility for actions under the Act. However, the Committee would meet outside of the public hearing so that the scientists who participate would not be subject to cross-examination and other procedural strictures.

As soon as practicable after completion of the public hearing but not later than 90days thereafter the Administrator must evaluate the data and reports andissue a final order. Under section 6(d) theAdministrator after completion of the administrative review proceedings is required to issue an order appropriate to the proceedings which have occurred. Thus, he may by order (1) revoke his notice of intention issued under section 6(b); (2) grantregistration; (3) cancel registration, change the classification, or deny registration; or (4) require a modification of the labeling or packaging of the pesticide.

All final orders of the Administrator would be subject to judicial review pursuant to section 15 of the Act.

SECTION 7. REGISTRATION OF ESTABLISHMENTS
Products subject to registration under Section 3 of the Act must be produced in establishments which are registered with the Administrator. The producer who operates an establishment must inform the Administrator within 30 days after it is registered of the types and amounts ofpesticides and, when required pursuant to Section 25(c) (4),devices whichhe is currently producing, produced during the pastyear,

or which he has sold or distributed during the past year. Such information is required to be kept current and submitted to the Administrator annually. All such information is considered confidential and subject

to the provisions of Section 10.

This section is not meant to include farming operations where a grower might mix two or more pesticides in a single container before applying them to his fields. The grower must comply with all require- W4 ments imposed on pesticides used but is not required to register his mixing operations under this section.

SECTION 8. BOOKS AND RECORDS

The Administrator may prescribe regulations requiring producers to maintain such records with respect to their operations and the products produced as are necessary for enforcement of the Act. Such records required do not extend to financial data, sales data other than shipment data, pricing data, personnel data, or research data (other than datarelating toregistered pesticides or to a pesticidefor which an application for registration has been filed).

Any officer or employee of the Environmental Protection Agency or ofany State or political subdivision duly designated by the Adminis- trator shall at reasonable times have access to and may copy records showing the delivery, movement or holding of pesticides and devices,

or related information if the above is not available. Such access does notextend to sales, financing, pricing and similar data.

SECTION 9. INSPECTION OF ESTABLISHMENTS

For purposes of enforcing the Act officers or employees duly designated by the Administrator are authorized to enter any establishment

or other place where pesticides are held for distribution or sale at reasonable times to inspect and obtain samples of any pesticides or devices which are packaged, labeled, and released for shipment, and samples of any containers or labeling for such products. Before an inspection appropriate credentials and a written statement as to the

reason for the inspection and whether a violation of law is suspected must be given. If samples are obtained an equal portion ofsuch sample
must be left with the establishment, and a copy of any analysis which may be made must be furnished. This section also authorizes officers

or employees duly designated by the Administrator to obtain and execute a warrant for inspection and reproduction of certain records and for the seizure of products in violation of the Act.

If the examination of pesticides or devices indicates that they fail
to comply with the Act, the Administrator must give notice to the
person against whom proceedings are contemplated and provide an opportunity to present his views. If thereafter the Administrator believes the Act has been violated he shall certify the Tacts to the Attorney General for the institution of criminal proceedings, or shall institute civil proceedings if he believes that such action will be sufficient to effectuate the purposes of the Act. However, this notice and opportunity to present views are not prerequisites to the institution issued in lieu ofa prosecution for minor violations ifthe Administrator believes the public interest will be served.

69-643 0-72--SECTION 10. PROTECTION OF TRADE SECRETS AND OTHER
INFORMATION Section 10 of the Act provides that an applicant for the registration of a pesticide may mark any part of the data submitted which inhis opinion are trade secrets or commercial or financial information and submit such material separately from the other material required.

The Administrator would not make public any such information which contains or relates to trade secrets or commercial or financial information obtained from a person and privileged or confidential, except that, when necessary to carry out provisions of the Act, information relating to formulas or products acquired by authorization of the Act may be revealed to any Federal agency consulted and may be revealed at a public hearing or in findings of fact issued by the Administrator.

With regard to the public disclosure of data submitted under subsection (a) the Committee deleted the phrase "in his judgment" from subsection (b) of the House passed bill in order that the subsection would not infer that the Administrator's decision to release trade secrets orconfidential information to the publicis not reviewable in an appropriate court. Where information is submitted to EPA and is marked that in the opinion of the registrant or applicant it is a trade secret or commercial or financial information and privileged or confidential, the Committee would expect the Administrator to give the applicant or registrant notice, before he would release any such data so marked, of his intention to release it. This would give to the registrant or applicant the opportunity to bring an action in an appro- priate court to obtain a decision by that court of whether or not the data may bereleased.

SECTION 11. STANDARDS APPLICABLE TO PESTICIDE APPLICATORS This section exempts private pesticide applicators from any recordkeeping or report regulations prescribed by the Administrator under the Act, and provides that the Administrator shall establish certification standards for commercial and private applicators.

SECTION 12. UNLAWFUL ACTS This section includes many prohibited acts from present law and is expanded to cover intrastate acts and to prohibit violations of the provisions of the Act. Among the new prohibitions isrefusal to permit lawful inspection of an establishment or sampling of a pesticide; advertisement ofarestricted useproduct not containing such classification; making available for use, or using, a restricted use pesticide other than asprovided under the Act or inconsistant with its labeling; and violation of a "stop sale, use, or removal" order.

Violation ofrecoi d-keeping and establishment registration provisions is also prohibited.

The section also provides exemption for certain persons dealing with pesticides.

SECTION 13. STOP SALE, USE, REMOVAL, AND SEIZURE Subsection (a) of this section authorizes the Administrator to issue
a "stop sale, use, orremoval" order to anyperson possessing a pesticide
or device if he believes that the pesticide or device is or will be sold

### in violation of the Act or if the registration has been suspended or is subject to a final cancellation order. j Subsection (b) authorizes condemnation and seizure of pesticides if

they are adulterated, misbranded, not registered, improperly labeled, not colored ordiscolored as required, orfalsely represented as toclaims
or directions for use. A misbranded device is liable to similar action,
asare pesticides and devices which, when used as directed on thelabel and as required under the Act, nevertheless cause substantial adverse effects on the environment.

Subsection (c) provides for the disposition ofcondemned and seized 1. pesticides and devices by distribution, sale, or return to the owner

under certain conditions and upon the posting of a bond.

Subsection (d) provides for awarding court costs and otherexpenses against the claimant of the pesticide or device subject to this section.

SECTION 14. PENALTIES


### H.R. 10729 contains provisions for civil penalties. Such provisions

are not included in the existing FIFRA. A registrant, commercial applicator, or dealer violating any provision of the Act would be subject to a civil penalty of not more than $5,000 for each offense, except that a private applicator or any other person would be subject to only a $1,000 penalty, and only after receiving a written warning

or citation for a prior violation. No civil penalty could be assessed until the person charged has been given a notice and an opportunity for a hearing in the county, parish or city of his residence.

Civil penalty provisions are considered a necessary part of a regulatory program suchas pesticides control.While thecriminalprovisions may be used where circumstances warrant, the flexibility of having civil remedies available provides an appropriate means of enforcement without subjecting a person tocriminal sanctions. The alleged violator is always provided an opportunity for a hearing before any civil penalty may be assessed, and any misunderstanding as to what constitutes compliance with theAct can beconsidered by theAdministrator and the penalty penalty dispensed with if warranted.

The bill also provides that any registrant, commercial applicator,

or dealer who knowingly violates any provision of the Act shall be guilty of a misdemeanor and on conviction be fined not more than $25,000 or imprisoned fornot more than one year or both, except that

a private pesticide applicator or any other person could be fined not

more than $1,000 or imprisoned not more than 30 days, or both.

SECTION 15. ADMINISTRATIVE PROCEDURE; JUDICIAL REVIEW

Subsection (a) provides that, except as is otherwise provided in the Act, refusals by EPA to cancel or suspend registrations or change classifications where no hearing has been held, and other final EPA actions not committed to the discretion of the agency, are reviewable in the district courts.



### Subsection (b) provides that other actions of the Agency are reviewable in the Courts ofAppeals. This subsection provides that in the case of actual controversy as to the validity of any order issued by the Administrator following a public hearing, any person who will be adversely affected by the order may obtain judicial review byfiling in the U.S. Court of Appeals for the circuit where such person resides or has a place of business within 60 days a petition that the order be set aside in whole or in part. In its review the court shall consider all evidence ofrecord and shall sustain the order of the Administrator ifit is supported by substantial evidence when considered on the record as a whole. The commencement of proceedings under this section does not, unless the court specifically orders to the con- trary, operate as a stay of any order. The court isrequired to expedite the disposition of cases filed under this section.

Subsection (c) provides that the district courts of the U.S. are vested with jurisdiction to enforce, and to prevent and restrain violations of the Act.

Subsection (d) provides that the Administrator must give notice by publication or otherwise of alljudgments entered in actions under the Act.

The Committee has simplified the procedures for judicial review of agency actionsby providing that all actions taken after a hearing shall be reviewed by the courts of appeals and all actions taken without a hearing, unless otherwise provided in the Act, shall be reviewable in district courts.

Judicial review in district courts will be in accordance with the law generally applicable to administrative procedure.

The Committee has added language to clarify existing lawand make clear that the decision to cancel or suspend is not one committed to agency discretion by law.

The district courts also have jurisdiction to enforce orders and restrain violations of the Act.

SECTION 16. IMPORTS AND EXPORTS Subsection (a) exempts from the provisions of the Act an exported pesticide ordevice which isin accordance with the specifications ofthe foreign purchaser.

Subsection (b) requires the Administrator to transmit through the State Department to foreign governments and international agencies notice of pesticide registration cancellations.

Subsection (c) provides for the inspection of samples of imported pesticides and devices provided by the Secretary of the Treasury to the Administrator, and for the refusal of admission of a pesticide or device upon afinding bythe Administrator that it is in violation ofthe Act. Disposition of such products is provided as well as payment of expenses incurred by such finding and refusal of admission.

Subsection (d) requires the Administrator to participate in international efforts to develop improved pesticide research and regulations, and subsection (e) requires the Secretary of the Treasury toprescribe regulations under this section.

SECTION 17. EXEMPTION OF FEDERAL AGENCIES This section authorizes the Administrator to exempt a Federal or State agency from any provision of the Act if he determines that exemption is consistent with the purposes of the Act and the public interest.SECTION 18. DISPOSAL AND TRANSPORTATION

Section 18 provides that the Administrator of the Environmental Protection Agency shall, after consultation with other interested Federal agencies, establish procedures and regulations for the disposal

or storage of packages and containers of pesticides and for disposal

or storage of excess amounts of such pesticides. The Administrator would be also required to accept at convenient locations for safe disposal a pesticide the registration of which has been cancelled under section 6(c) ifrequested by the owner of the pesticide.

Section 6(c) of the Act provides for the suspension of a pesticide when such action is necessary to prevent an imminent hazard during the time required for cancellation proceedings. This section also provides that a cancellation proceeding has to be initiated at the

same time a registration is suspended so as to provide the affected party with an opportunity for a hearing. The Administrator would not, of course, be required to accept pesticides for disposal until any hearing and review procedures have been completed and a final order issued. Since thK: requirementt to accept for disposal is keyed to suspensions under section 6(c) and not to all pesticide cancellations, such disposal by the government should not be required frequently.

The Administrator of EPA would also be required under section 18 to advise the Secretary of Transportation with respect to the transportation inlightofthe Secretary's responsibilitiesregarding hazardous materials.
SECTION 19. RESEARCH AND MONITORING

This section authorizes the Administrator to use necessary means to undertake pesticides research, giving priority to biologically integrated alternatives tochemicals for pest control; toestablish and implement a national plan for monitoring pesticides, as well as undertake other monitoring activities necessitated by provisions of the Act.

SECTION 20. SOLICITATION OF PUBLIC COMMENTS
This section requires the Administrator to solicit the views of the Secretary of Agriculture before publishing regulations under this Act.

Section 20 also provides that in addition to any other authority relating to public hearings and solicitation of views in connection with the suspension orcancellation ofa pesticide registration or other action under the Act, the Administrator may solicit views of all interested parties and seek such advice from farmers, farm organizations, and other qualified persons as he deems proper.

SECTION 21. DELEGATION AND COOPERATION
This section authorizes the delegation of authorities vested in the Administrator under the Act to his designees, and provides for cooperation by the Administrator with other Federal agencies and with agencies of State and local governments in carrying out the Act.

SECTION 22. STATE COOPERATION, AID, AND TRAINING

This section authorizes the Administrator to enter into cooperative agreements with States for purposes of enforcement of the Act, including training of personnel and including grants for enforcementprograms, and to assist States in establishing applicator certification programs. Further, he may enter into contracts with Federal and State agencies for the purpose of encouraging certified applicator training. The Administrator may also keep farmers informed on pesticide uses and regulations through the Cooperative State Extension Services.

SECTION 28. AUTHORITY OF STATES

This section specifies the authorities retained by the States under the Act. Generally, the intent of the provision isto leave to the States the authority to impose stricter regulation on pesticides use than that required under the Act.

Subsection (a) gives States the authority to regulate the sale or use of a pesticide or device so long as such regulation does not permit sale or use prohibited under the Act.

Subsection (b) preempts any State labeling or packaging require- ments differing from such requirements under the Act.

Subsection Cc) provides the Administrator with authority to certify
a State for the purpose of registering pesticides formulated for intra- state distribution to meet specific local needs. Such registration would not be effective for more than 90 days ifdisapproved by the Adminis- trator within that period. The purpose of this subsection is to give a State the opportunity to meet expeditiously and with less cost and administrative burden on the registrant the problem of registering for local use a pesticide needed to treat a pest infestation which is a problem in such State butis not sufficiently widespread towarrant the expense and difficulties of Federal registration.

SECTION 24. AUTHORITY OF THE ADMINISTRATOR Subsection (a) of this section authorizes the Administrator to pre- scribe regulations to carry out the Act.

Subsection (b) provides for exemption of pesticides adequately regulated by another Federal agency or unnecessary to be subject to the Act.

Subsection (c) authorizes the Administrator, after notice and op- portunity for hearing, to declare as pests certain forms of life, determine which pesticides are highly toxic to man, establish packaging standards, specify classes of devices subject to certain provisions ofthe Act, prescribe regulations for the discoloration or coloring ofpesticides, and determine and establish suitable names to be used in ingredient statements.

SECTION 25. SEVERABILITY

This standard severability section states that the provisions ofthe Act are severable, and the invalidity of one does not affect the validity of the others.

SECTION 26. AUTHORIZATION FOR APPROPRIATIONS This section authorizes appropriation of such sums as may be necessary to carry out the provisions of the Act for fiscal years 1973, 1974, and 1975. Thereafter new legislation will determine authorized appropriations. The section provides that the expenses of the Federal government in carrying out the Act are to be paid from general appropriations, not fees, except that reasonable registration fees may be charged.

### Changes in existing law made by the bill, as passed by the House,
are shown asfollows (existing lawproposed tobe omitted isenclosed in black brackets, newmatter is printedin italic, existing lawinwhich no change is proposed is shown in roman, editorial notes are shown in boldface):

Sections of existing law appear below in the order in which they appear in existing law. Sections ofthe billare shown with the sections ofexistinglaw to which they relate. To locate sections ofthe bill, use the following table:

For thefollowing section ofH.R. 10729: Section 

## 1

---- 

### Section 2

- 

### Section 3

- 

### Section 3(b)

- 

### Section 4

- 

### Section 5

--- 

### Section 6(a)(1)

-- 

### Section 6(a)(2), 6(b), 6(c), 6(d),

and 6(e). Section 7 Section 8 Section 9(a) and (b)

-- 

### Section 9(c)

- 

### Section 10-

- Section 11

- 

### Section 12(a)(1)

- 

### Section 12(a)(2)

- 

### Section 12(b)

- 

### Section 13

- 

### S ection 14

___ Section 15

- 

### Section 15(a)

----------------- 

### Section 15(b)

-- 

### Sections 15(c) and (d) Section 16(a) Sections 16(b), (c), and (d)

----- 

### Section 16(e)

- 

### Section 17

.................... Section 18

-------------------- 

### Section 19_

- Section 20. Section 21(a) -.... 

### Section 21(b)

- Section 22

--------------------- Section 23

- ------------------ 

### Section 24 -.......... 

### Section 25

........ Section 26

........... See the following section of existing law: Section 1. Section 2. Section 4. Section 4(e). (New) after Section 4. (New) after Section 4. Section 4f. Section 4c.
(New) after Section 4. Section 5. (New) at end ofbill. Section 6c. (New) at end ofbill. (New) at end ofbill. Section 3. Section 3c. Section 7. Section 9. Section 8. (New) at end ofbill. (New) at end ofbill. Section 4d. Sections 6d and e. Section 3b. Section 10. Section 6b. (New) at end ofbill. (New) atend ofbill. (New) atend ofbill. (New) atend ofbill. Section 11. Section 13. (New) at end ofbill. (New) at end ofbill. Section 6a. Section 14. Section 12.

### FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT

[TITLE] 

### Sec. 1. Short Title and Table ofContents.

[SECTION 1.] 

### (a) Short Title.-This Actmay be cited as the "Fed- 8edion Iof 

### eral Insecticide, Fungicide, and Rodenticide Act." Eximnglaw

(b) TABLE OF CONTENTS.-

Section 1. Short titleand table ofcontents. (a) Short title. (b) Table ofcontents. See. 2. Definitions. (a) Active ingredient. (b) Administrator. (c) Adulterated. (d) Animal. (e) Certifiedpesticideapplicator,etc. (1) Certifiedapplicator. (2) Privateapplicator. (3) Commercialapplicator. (4) Underthe direct supervisionand controlof a 

### f) Defoliant,certifiedapplicator. g) Desiccant. (h) Device. (i) Districtcourt. 

### (j) Environment. () Fungus. (1) Imminent hazard. (i) Inert ingredient. (n) Ingredientstatement. (0) Insect. (p) Label andlabeling. (1) Label. (2) Labeling. (q) Misbranded. (r) Nematode. (s) Person. (t) Pest. (u) Pesticide. (v) Plantregulator. (W Producerandproduce. () Protecthealthand the environment. (y) Registrant. (z) Registration. (aa)State. (bb) Substantialadverseeffects on the environment. (cc) Weed.Sec. 3. Registrationofpesticides. (a) Requirement. (b) Exemptions. (c) Procedure for registration. (1) Statementrequired. (2) Datain supportofregistration. (8) Timefor actingwith respectto application. (4) Notice of application. (5) Approval of registration. (6) Denialof registration. (d) Classificationofpesticides. (1) Classification for general use, restricteduse,
or both. (2) Changein classification. (e) Products with sameformulation and claims. 

### (f) Miscellaneous. (1) Effect of change ojlabelingorformulation. (2) Registrationnota defense. (3) Authority to consultotherFederalagencies. Sec. 

### 4. Use ofrestrictedusepesticide;certifiedapplicators. (a) Certification procedure. (1) Federal certification. (2) Statecertification. (b) Stateplans. Sec. 5. Experimentalusepermits. (a) Issuance. (b) Temporary tolerancelevel. (c) Use underpermit. (d) Studies. (e) Revocation. See. 6. Administrativereview;suspension. (a) Cancellationafter five years. (1) Procedure. (2) Information. (b) Cancellationandchangein classification. (c) Suspension. (1)Order. (2) Expeditehearing. (3) Emergency order. (4) Judicialreview. (d) Publichearingsandscientificreview. (e) Judicialreview. See. 7. Registrationofestablishments. (a) Requirement. (b) Registration. (c) Information required. (d) Confidentialrecords andinformation. Sec. 8. Books andrecords. (a) Requirement. (b) Inspection.

69-643 0--72-----5Sec. 9. Inspectionofestablishments,etc. (a) In general. (b) Warrants. (c) Enforcement. (1) Certificationof facts toAttorney General. (2) Notice notrequired. (8) Warningnotices. Sec. 10. Protectionof tradesecrets, etc. (a) In general. (b) Disclosure. Sec. 11. Standardsapplicabletopesticide applicators. (a) In general. (b) Separatestandards. Sec. 12. Unlawfulacts. (a) In general. (b) Exemptions. Sec. 13. Stop sale, use, removal, andseizure. (a) Stopsale, etc., orders. (b) Seizure. (c) Dispositionaftercondemnation. (d) Court costs, etc. Sec. 14. Penalties. (a) Civilpenalties. (1) In general. (2) Privatepesticideapplicator. (3) Hearing. (4) PeferencestoAttorney General. (b) Criminal penalties. (1) In general. (2) Privatepesticideapplicator. (3) Disclosureofinformation. (4) Acts ofofficers, agents,etc. Sec. 16. Administrativeprocedure; judicialreview. (a)AdministrativeProcedures. (b) Judicialreview. (c) Jurisdictionofdistrictcourts. (d) Notice of judgments.

### 135

Sec. 16. Importsandexports. (a) Pesticidesanddevicesintended forexport. (b) Cancellationnoticesfurnishedto foreign governments. (c) Importationofpesticidesanddevices. (d) Cooperationin internationalefforts. (e) Regulations. Sec. 17. Exemption ofFederalagencies. Sec. 18. Disposalandtransportation. (a) Procedures. (b) Advice to Secretaryof Transportation. Sec. 1,9. Researchandmonitoring. (a) Research. (b) National monitoringplan. (c) Monitoring. Sec. 20. Solicitationofpubliccomments. Sec. 21. Delegationandcooperation. Sec. 22. Statecooperation,aid,andtraining. (a) Cooperativeagreements. (b) Contracts jortraining. Sec. 23. Authority ofStates. Sec. 24. Authority ofAdministrator. (a) Regulations. (b) Exemptionofpesticides. (c) Otherauthority. Sec. 25. Severability. Sec. 26. Authorization for appropriations.

### 36
Subsections ofsection 2 are setout below inthe orderin which they appear in existing law. The following table will help to locate the cor- responding subsections inthe bill (which rearranges the definitions in alphabetical order)
Subsection ofbill Subsection of existing law (a) Active Ingredient- p. (b) Administrator

.... u. (Secretary). (c) Adulterated- y. (d) Animal

.... ..... ........ New. (e) Certified Pesticide Applicator, New. Etc. (f) Defoliant

..... . - i. (g) Dessicant

.. .... .....- j. (h) Device --.. b. 

### (i) District Court

.... New. (j) Environment__

- New. (k) Fungus

......... ......... n. (1) Imminent Hazard New. (m) Inert Ingredient.........- 

### g. (n) Ingredient Statement

....... o. (o) Insect

........ ......... m. (p) Label and Labeling --- ---- w. and x. (q) Misbranded --------- z. (r) Nematode

.... .. ....... .. k. (s) Person s. (t) Pest

..... ................ New

. (u) Pesticide

....... .. .. ..... a. (v) Plant Regulator

......... . r. (w) Producer and Produce New. (x) Protect Health and the New. Environment. (y) Registrant

... .V. () Registration New-.- Ne. (aa) State ---------- t. (Territory). (bb) Substantial Adverse Effects New.
on the Environment. (cc) Weed

. .. . . .... .. .... I. (dd) State Issuance ofPermits ---- New.Scion 2of 

### Sec. 2.Definitions. [DEFINITIONS

ExidingLw ews [SEC. 2.] For [the] purposes of this Act- [a.] (u) Pesticide.-The term "[economic poison] pesticide"

means (1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any [insects, rodents, nematodes, fungi, weeds, and other forms of plant or animal life or viruses, except viruses on or in living man or other animals, which the Secretary shall declare to be a] pest, and (2) any substance ormixture of substances intended for use as a plant regulator, defoliant, or desiccant.

[b.] (h)Device.-The term "device" means any instrument or contrivance (other than afirearm) which (1) is intended for trapping, destroying, repelling, or mitigating [insects, or rodents or destroying, repelling, or mitigating fungi, nematodes, or such other pests as may be designated by the Secretary, but not including equipment used f-- the application of economic poisons when sold separately therefrcmj 

### anypest orany other form ofplant oranimallife (other thanman and otherthanbacteria,virus, orothermicro-organismon orin livingman or otherlivinganimals).

[c. The term "insecticide" means any substance or mixture of substances intended for preventing, destroying, repelling or mitigatingany insects which may be present in any environment whatsoever.

[d. The term "fungicide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any fungi.

[e. The term "rodenticide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating rodents or any other vertebrate animal which the Secretary shall declare to be a pest.

[If. The term "herbicide" means any substance or mixture of sub- stances intended for preventing, destroying, repelling, or mitigating any weed.

[g. The term "nematocide" means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigatingnematodes.]

[h.] (v) Plant Regulator.-The term "plant regulator" means any substance or mixture ofsubstances, [intended through] intended, through physiological action, for accelerating or retarding the rate of growth or rate of maturation, or for otherwise altering the behavior of [ornamental or crop] plants or the produce thereof, but shall not include substances to the extent that they are intended as plant nutrients, trace elements, nutritional chemicals, plant inoculants, and 

### soil amendments. Also, the term "plantregulator"shallnotbe required to includeat allany ofsuch ofthose nutrimentmixtures orsoilamend- ments asarecommonlyknown asvitamin-hormonehorticultural products, intended for improvement, maintenance, survival, health,andpropagation ofplants, and as are notfor pest destructionand are nontoxic, nonpoisonousin the undilutedpackagedconcentration.

[i.] (f) Defoliant.-Theterm "defoliant" means any substance or mixture of substances intended for causing the leaves or foliage to drop from a plant, with or without causing abscission.

### 38
[j.] (g) Desiccant.-The term "desiccant" means any substance or mixture of substances intended for artificially accelerating the drying of plant tissue.

[k.] (r) Nematode.-The term "nematode" means invertebrate animals of the phylum nemathelminthes and class nematoda, that is, unsegmented round worms with elongated, fusiform, or saclike bodies covered with cuticle, and inhabiting soil, water, plants orplant parts; may alsobe called nemas or eelworms. 1.j (cc) Weed.-The term "weed" means any plant which grows where not wanted.

[m.] (o) Insect.-The term "insect" means any of the numerous 

### small invertebrate animals generally having the body more or less obviously segmented, for the most part belonging to the class insect, comprising six-legged, usually winged forms, as, for example, beetles, bugs, bees, flies, and to other allied classes of arthropods whose mem- bers are wingless and usuallyhave more than sixlegs, as, for example, spiders, mites, ticks, centipedes, and wood lice.

[n.j (k) Fungus.-The term "[fungi] fungus" means [all] any 

### non-chlorophyll-bearing jthallophytes] thallophyte (thatis, 

## [all] any non-chlorophyll-bearing [plants] plantof a lower order than mosses and liverworts), as, for example, [rusts] rust, [smuts] smut, [mil- dews] mildew, [molds] mold, [yeasts] yeast, and bacteria, except those on orin living man or other animals andthose on or inprocessed food,beverages,or pharmaceuticals. 

### [o.] (n) IngredientStatement.-The term "ingredient statement"
means [either-

[(1) a statement of the name and percentage of each active ingredient, together with the total percentage of the inert ingredients, in the economic poison; or

[(2) a statement of the name of each active ingredient, together, with the name of each and total percentage of the inert ingredients if any there be, in the economic poison (except option 1 shall apply if the preparation is highly toxic to man, determined as provided in section 6ofthis Act); and, in addition to (1) or(2) in case the economic poison contains arsenic in any form, a statement of the percentages of total and water soluble arsenic, each calculated as elemental arsenic.]

astatementwhich contains- (1) thename andpercentageofeachactive ingredient,andthe total percentage ofall inert ingredients,in thepesticide; and

(2) if the pesticidecontains arsenicin anyform, a statement of the percentages of total and water soluble arsenic, calculated as elementalarsenic. [p.] (a) Active Ingredient.-The term "active ingredient"

means-(1) in the case of [an economic poison] apesticide other than
a plant regulator, defoliant, or desiccant, an ingredient which will prevent, destroy, repel, or mitigate [insects, nematodes, fungi, rodents, weeds, or other pests] anypest;

(2) in the case of a plant regulator, an ingredient which, through physiological action, will accelerate or retard the rate of growth or rate of maturation or otherwise alter the behavior of ornamental or crop plants or the [produce] productthereof;

### 39 (3) in the case of a defoliant, an ingredient which will cause the leaves or foliage to drop from a plant; and

(4) in the case of a desiccant, an ingredient which will artificially accelerate the drying of plant tissue. [q.] (m) Inert Ingredient.The term "inert ingredient" means an ingredient which is not active.

[r. The term "antidote" means a practical immediate treatment in
case of poisoning and includes first-aid tretament.]

(s) Person.-The term "person" means any individual, partnership, association, corporation, or any organized group of persons whether incorporated or not.

[t. The term "Territory" means any Territory or possession of the United States, excluding the Canal Zone.]

(aa)State.-The term "State" meansaState, theDistrictof Columbia, the Commonwealth ofPuertoRico, the Virgin Islands, Guam, the Trust Territoryofthe PacificIslands,andAmericanSamoa.

[u.] (b) Administrator.-The term "[Secretary] Administrator" means the [Secretary of Agriculture] Administratorof the EnvironmentalProtection Agency. [v.] (y) Registrant.-Theterm "registrant" means [the] a person [registering] who has registered any [economic poison] pesticide pursuant to the provisions of this Act.

[w.] (p)Label andLabeling. (1) Label.-Theterm "label" means thewritten, printed, or graphic matter on, or attached to, the [economic poison] pesticide or device
or [the immediate container thereof, and the outside container or wrapper of the retail package, if any there be, of the economic poison
or device] any ofits containersorwrappers.

[x.] (2) Labeling-Theterm "labeling" means all labels and other written, printed, or graphic matter-

[(1) upon the economic poison or device or any ofits containers or wrappers;]

[(2)] (A) accompanying the [economic poison] pesticideor device at any time; or

[(3)] (B) to which reference ismade on the label or in literature accompanying the [economic poison] pesticideor device, except to current official publications of the Environmental Protection Agency, the United States Departments of Agriculture and Interior, the [United States Public Health Service] DepartmentofHealth,Education,and Welfare,Stateexperiment stations, State agriculturel colleges, and other similar Federal or State institutions or agencies authorized by law toconduct researchin thefield of[economic poisons]pesticides.

[y.] (c) Adulterated.-The term "adulterated" [shall apply] applies to any economicc poison] pesticideif: (1) its strength or purity falls below the professed standard [or] ofquality as expressed on its labeling [or] under which it is sold [,or if];

(2) any substance has been substituted wholly or in part for the [article, or if] pesticide;or

(3) any valuable constituent of the [article] pesticidehas been wholly or in part abstracted. [z.] (q)Misbranded.-[Theterm "misbranded" shall apply-](1) [to any economic poison or device if] A pesticidesubjectto this Act is misbrandedif- (A) its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients which is false

or misleading in any particular; [(2) to any economic poison-] Compare the following paragraph with section 2z(2)(i) of existing law, infra. (B) it is containedin apackage or other containeror wrapping which does not conform to the standardsestablishedby the Administrator pursuantto section25 (c) (3); [(a)] (C) [if] it is an imitation of, or is offered for sale under the

name of, another [economic poison] pesticideor device;

[(b) if its labeling bears any reference to registration under this Act other than the registration number assigned to the economic poison]

(D) its label does not bear the registrationnumber assigned under section 7 to each establishmentin which itwas produced;

(E) any word, statement, or other information requiredby or under authorityofthis Act to appearon the label orlabelingis notprominently placedthereon with such conspicuousness (ascomparedwith otherwords, statements,designs, or graphicmatterin the labeling) and in such terms
as to renderit likely tobe readand understoodby the ordinaryindividual undercustomary conditionsof purchaseand use; [(c)] (F) [if] the labeling accompanying it does not contain directions for use which are necessaryforeffecting thepurpose for which the productis intended and if complied with, together with anyrequirements imposed undersection 3(d)of thisAct, areadequate [for the protection of the public] to protecthealthand the environment;

[(d)] (A) [if] the label does not contain awarning or caution state- ment which may be necessary and if complied with, togetherwith any requirements imposed under section 3(d) of this Act, is adequate to [prevent injury to] protect health and the environment [living man and other vertebrate animals, vegetation, and useful invertebrate animals;] or

(H) when usedin accordancewith the requirementsimposed underthis Act or commonly recognized practice, it nevertheless causes substantial adverse effects on the environment. In the case of a plant regulator, defoliant, or dessicantused in accordance with its labeling,physicalor physiologicaleffects onplants orparts thereofshall not be deemed to be injury when such effects are the purpose for which the plant regulator, defoliant, ordessicantwas applied.

(2)A pesticide is misbrandedif- [(e)] (A) [if] the label does not bear an ingredient statement on that part of the immediate container (and on the outside container or wrapper, if there be one, through which the ingredient statement on the immediate container cannot be clearly read, of theretail package) which is presented or displayed under customary conditions of purchase[: Provided,That the Secretary may permit the ingredient state- ment to appear prominently on some other part of the container, if the size or form of the container makes it impracticable to place it on the part of the retail package which is presented or displayed under41

customary conditions of purchase;], except that a pesticide is not misbrandedunder thissubparagraph if: (i) the size orform of the immediate container, or the outside containerorwrapperqf the retailpackage,makes it impracticableto place the ingredient statement on the part which is presented or displayedundercustomary conditionsofpurchase;and

(ii) the ingredientstatementappearsprominently on another part qf the immediate container, or outside containeror wrapper,permitted by theAdministrator; (B) the labeling does not contain a statement of the use classification underwhich theproduct is registered;



### Compare the following with section 3a(2) of existing law, infra. (C) there is not affixed to its container,and to the outside containeror wrapperofthe retailpackage, if there be one, throughwhich the required information on the immediate container cannot be clearly read, a label bearing- (i) the name andaddressoJtheproducer,registrant,orperson for whomproduced;

(ii) the name, brand, or trademark under which the pesticide is sold;

(iii) the net weight or measureof the content:Provided, That the Administratormaypermitreasonablevariations;and (iv) when requiredby regulationoftheAdministratorto effectuate thepurposesofthisAct, the registration numberassignedto thepesticide under thisAct, andthe use classification;and 

### Compare the following with section 3a(3) of existing law, infra. (D) the pesticide contains any substance or substances in quantities highly toxic to man, unless the label shall bear, in addition to any other
matterrequiredby thisAct- (i) the skull and crossbones; (ii) the word "poison" prominently in red on . background of distinctlycontrastingcolor;and

(iii)astatement ofapractical treatment(firstaidor otherwise) in

case ofpoisoningby the pesticide. 

### [(f) if any word, statement, or other information required by or under authority of this Act to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or graphic matter in the labeling) andin such terms as to render itlikely to be read and understood by the ordinary individual under customary conditions of purchase and use; or

[(g) if in the case of an insecticide, nematocide, fungicide, or herbicide when used as directed or in accordance with commonly recognized practice it shall be injurious to living man or other vertebrate animals, or vegetation, except weeds, to which itis applied,

or to the person applying such economic poison; or

[(h) ifin the case of a plant regulator, defoliant, or desiccant when used as directed it shall be injurious to living man or other vertebrate animals, or vegetation to which itis applied, or to the person applying such economic poison: Provided, That physical or physiological

69-643 0-72---,

### effects on plants or parts thereof shall not be deemed to be injury, when this is the purpose for which the plant regulator, defoliant, or desiccant was applied, in accordance with the label claims and recommendations; or

Compare the following subsection with section 2(q (1)(B) of the bill,supra.

f(i) if its packaging or labeling is in violation of an applicable regulation issued pursuant to section 3 or 4 of the Poison Prevention Packaging Act of 1970.]

(d) ANIMAL.-The 

### term "animal"meansallvertebrateandinvertebrate species, including but not limited to man and other mammals, birds, fish, and shellfish. (e) CERTIFIEDAPPLICATOR, ETC.- (1) CERTIFIED APPLICATOR.-The term "certified applicator"

means any individualwho is certifiedundersection4 as authorized
to use or supervise the use of any pesticide which is classifiedfor restricteduse.

(2) PRIVATE APPLICATOR.-The term "privateapplicator"means
acertifiedpesticideapplicatorwho uses or supervises the use ofany pesticide which is classifiedfor restrictedusefor purposes ofproducing any agricultural commodity on property owned or rented 

### by him or his employer or (ifappliedwithout compensation other than trading ofpersonal services between producers of agricultural commodities) on theproperty ofanotherperson.

(6) COMMERCIAL APPLICATOR.-The term "commercial applicator" means a certified applicator (whetheror not he is a private applicatorwith respectto some uses) who uses orsupervises the use ofany pesticidewhich is classified forrestrictedusefor anypurpose
or on any propertyother than asprovided by paragraph(2).

(4) UNDER THE DIRECT SUPERVISION OF A CERTIFIED APPLICATOR.-Unless 

### otherwiseprescribedby its labeling, apesticide shall be considered to be applied under the direct supervision ofacertifiedapplicatorif it is appliedby a competentpersonacting under the instructionsand control of a certified applicatorwho is available if and when needed, even though such certifiedapplicator isnotphysicallypresentatthe timeandplacethepesticideis applied. (i) DISTRICT COURT.-The term "district court" means a United States district court, the District Court of Guam, the DistrictCourt of the Virgin Islands,and the highestcourt ofAmericanSamoa.



## (j) ENVIRONMENT.-The term "environment" includes water, air, land, andallplants andman and otheranimals living therein, and the interrelationships which existamong these. (1) IMMINENT HAZARD.-The term "imminent hazard" means a situation which exists when the continueduse ofa pesticideduring the time required for cancellationproceeding would be likely to result in substantialadverse ejects on the environment or will involve hazard to the survival of a species declared endangered by the Secretary of the InteriorunderPublicLaw 91-156.

### Compare the following subsection with language contained in subsection a of existing law.

(t) PEST.-The term "pest" means (1) any insect, rodent, nematode, fungus, weed, or (2) any otherform of terrestrialor aquaticplant or animal life or virus, bacteria,or othermicro-organism (except viruses, bacteria,or other micro-organismson or in living man or other living animals) which the Administrator declares to be a pest under section 25(c)(1).

(w) PRODUCER AND PRODUCE.-The term "producer" means the
personwho manufactures,prepares,compounds,propagates,orprocesses any pesticideor device. The term "produce" means to manufacture,prepare,compound,propagate,orprocessany pesticideor device.

(X) PROTECT HEALTH AND THE ENVIRONMENT.- The terms "protect health and the environment" and "protectionofhealth and the environment" meansprotectionagainst any injuryto manandprotectionagainst
any substantial adverse effects on environmental values, taking into
accountthepublicinterest,includingbenefits from the use ofthepesticide. (Z) REGISTRATION.- The term "registration"includes reregistration. (bb) SUBSTANTIAL ADVERSE EFFECTS ON THE ENVIRONMENT.-The term "substantialadverse effects on the environment" means any injury
to man or any substantialadverse effects on environmentalvalues, taking into account the pullic interest, including benefitsfrom the use oJ the pesticide.

(dd) ESTARLISHMENT.- The term "establishment" means any place where a pesticide or device isproduced,or held,for distributionor sale.



### Comparison ofsection 3 of existing law with section 12 of the bill. [ProhibitedActs]

SEC. 12. UNDLAWFUL ACTS.

(a) IN GENERAL.- SeOo 3.of [Sec. 3.a. It] (1) Except asprovidedby subsection(b), itshall be un- &ii~g1- lawful for any person in any State to distribute, sell, offer for sale, hold for sale [in any Territory or in the District of Columbia, or to], ship [or], deliver for shipment [from an'y State, Territory, or the District of Columbia to any other State, Territory, or the District of Columbia, or to any foreign country, or to] or receive [in any State, Territory, or the District of Columbia from any other State, Territory, or the District of Columbia, or foreign country,] (and having so received[,]) deliver or offer to deliver [in the original unbroken package] to any [other] person[, any of the following:]-

(A) [(1) Any economic poison] any pesticide which is not registered [pursuant to the provisions of section 4 ofthis Act, or] under
section3, except asprovided by section6(a)(1);

(B) any [economic poison] registered pesticideifany [of the] claims made for it [or any of the directions for its use] asapartofits distributionor salesubstantiallydiffer [in substance] from [the representations] any claims madefor it as apartofthe statementrequiredin connection with its registration undersection3; 

## [, or if the composition of an economic poison differs from its composition as represented](C) any registeredpesticide the composition of which differs at the time of its distributionor salefrom its composition as describedin the
statement requiredin connection with its registration under section3; Compare the following with section 3(f)(1) the bill set out infra after section 4d of existing law. [: Provided,That in the discretion of the Secretary, a change in the labeling or formula of an economic poison may be made within a registration period without requiring reregistration of the product.];

Compare the following with the definition of "misbranded" in section 2(q)(2) (C) of the bill (compared supra with section 2z(2)(e) of existing law).

[(2) Any economic poison unless it is in theregistrant's or the manu- facturer's unbroken immediate container, and there is affixed to such container, and to the outside container or wrapper of the retail package, if there be one, through which the required information on the immediate container cannot be clearly read, a label hearing-

[(a) the name and address ofthe manufacturer, registrant, or person for whom manufactured;

[(b) the name, brand, or trade-mark under which said article is sold; [(c) the net weight or measure of the content: Provided,That the Secretary may permit reasonable variations; and

[(d) when required by regulation of the Secretary to effectuate the purposes of this Act, the registration number assigned to the article under this Act.]

Compare the following with the definition of "misbranded" in section 2(q) (2) (D) of the bill (compared supra with section 2z(2) (e) of existing law).

[(3) Any economic poison which contains any substance or sub- stances in quantities highly toxic to man determined as provided in section 6 of this Act, unless the label shall bear, in addition to any other matter required by this Act-

[(a) the skull and crossbones; [(b) the word "poison" prominently (IN RED) on a background of distinctly contrasting color; and

[(c) a statement of an antidote for the economic poison. [(4) ] (D) [The economic poisons commonly known as standard lead arsenate, basic lead arsenate, calcium arsenate, magnesium arsenate, zinc arsenate, zinc arsenite, sodium fluoride, sodium fluosilicate, and barium fluosilicate unless they have been distinctly colored or discolored as provided by regulations issued in accordance with this Act, or any other white powder economic poison which the Secretary, after investigation of and after public hearing on the necessity for such action for the protection of the public health and the feasibility of such coloration or discoloration, shall, by regulation, require to be distinctly colored or discolored unless it has been so colored or discolored: Provided, That the Secretary may exempt any economic poison to the extent that it is intended for a particular use or uses from the coloring or discoloring required or authorized by this section if he determines that such coloring or discoloring for such use or uses is not necessary for the protection of the public health.] Any pesticide which has not been colored or discoloredpursuantto the provisions ofsection 24(c) (5),[(5)] (E) [Any economic poison] anypesticidewhich is adulterated

or misbranded; or

(F) any device which is misbranded. Comparison of section 3b of existing law with section 17(a) ofthe bill.

section bof [b.] (a) Pesticides aid Devices Intendedfor Export.-Notwith- standing any other provision of this Act, no [article] pesticide or device shall be deemed in violation of this Act when intended solely for export to any foreign country and prepared or packed according to the specifications or directions of the foreign purchaser.

Comparison of section 3c of existing law with section 12(a)(2) of the bill. l.O Uof [c.] (2) It shall be unlawful forany person- [(1)] (A) [for any person] to detach, alter, deface, or destroy, in whole or in part, any [label or] labeling [provided for in] requiired under this Act [or the rules and regulations promulgated hereunder, or](0) to add any substance to, or take any substance from, [an economic poison] any pesticide in u nanner that may defeat the purpose of this Act[;].

[(2)] (B) [for any manufacturer, distributor, dealer, carrier, or other person to refuse, upon a request in writing specifying the nature
or kind of economic poison or device to which such request relates, to furnish to or permit any person designated by the Secretary to have access to and to copy such records as authorized by section 5 of this Act] to refuse to keep any recordsrequiredpursuantio section8,
orto refuseto allowtheinspectionofany recordsorestablishment pursuant to section 8 or 9, or to refuse to allow an officer or employee of the Environmental ProtectionAgency to take a sample of any pesticide pursuantto section 9;

[(3)] (C) [for any person] to give a guaranty or undertaking provided for in [section 7] subsection (b) which is false in any particular, except that a person who receives and relies upon a guaranty authorized under [section 7] subsection (b) may give a guaranty to the same effect, which guaranty shall contain, in addition to his own name and address, the name and address of the person residing in the United States from whom he received the guaranty
or undertaking; [and]

[(4)] (D) [for any person] to use for his own advantage or to reveal, other than to the [Secretary] Administrator, or officials or employees of the [United States Department of Agriculture] Environmental ProtectionAgency or other Federal executive agencies,
or to the courts [in response to a subpoena], or to physicians, [and in emergencies to] pharmacists, and other qualified persons, [for
use in the preparation of antidotes] needingsuch information for the performance of their duties, in accordance with such directions as the [Secretary] Administratormay prescribe, any information [relative to formulas of products] acquired by authority [of section 4] of this Act which is confidentialunderthisAct[.];

(E) who is a registrant, wholesaler,dealer,retailer,or otherdistributor to advertisea productregisteredunderthisActfor restricted use without giving the classificationoftheproductsignedto it undersection3;(F) tomake available for use, or to use, any registeredpesticideclassified for restrictedusefor some or allpurposes other than in accordance with section 3(d) and any regulationsthereunder;

(G) to use any registeredpesticide in a manner inconsistentwith its labeling;

(H) to use anypesticide which is under an experimentaluse permit
contraryto theprovisions ofsuchpermit;

(I) to violateany orderissuedundersection13; (J) to violate any suspension orderissued undersection6; (K) to violate any cancellation of registrationof a pesticide under
section 6, except asprovided by section6(a)(1);

(L) who is a producer to violate any of the provisions of section 7; (M) to knowinglyfalsify all orpart ofany application for registration, application for experimentaluse permit, any informationsubmitted

to the Administratorpursuantto section 7, any records required to be
maintained pursuantto section 8, any reporttiledunderthisAct, or any information marked as confidential and submitted to the Administrator underanyprovisionofthisAct;

(N) who isa registrant,wholesaler,dealer,retailer,or otherdistributor

tofail tofile reportsrequiredby thisAct; or



### Subparagraph (0) (of the bill) is set out above following subparagraph (A).

Section 12(b) of the bill is hereafter compared with section 7 of the law.

Comparison of section 4 of existing law with section 3 of the bill.
[Registration]

SEC. 3. REGISTRATION OF PESTICIDES.

[Sec. 4. a.] (a) Requirement.-[Every economic poison which is s5iono distributed, sold, or offered for sale in any Territory or the District of Columbia, or which is shipped or delivered for shipment from any State, Territory, or the District of Columbia to any other State, Territory, or the District ofColumbia, or which is received from any foreign country shall be registered with the Secretary: Compare the 

### following proviso with section 3(e) of the bill setout infraafter section 4d of existing law. Provided, That products which have the same formula, are manufactured by the same person, the labeling of which contains the same claims, and the labels of which bear a designation identifying the product as the same economic poison may beregistered

as a single economic poison; and additional names and-labels shall be added by supplemental statements;] Except as otherwise provided by this Act, noperson in any State may distribute,sell, offer for sale, hold for sale, ship, deliverfor shipment, or receive and (having so received) deliver or offer to deliver, to any person any pesticide which is not registeredwiththe Administrator.



### Forsection 3(b) of the bill, see section 4e of existing law. (C) PROCEDUREFORREGISTRATION-. (1) STATEMENT REQUItsD.-[the]Each applicant for registration ofapesticide shall file with the [Secretary] Administratora statement [including] which includes

[(1)] (A) the name and address of the applicant [for registration]

and [the name and address of the] of any other person whose

name will appear on the [label, if other than the applicant for registration] labeling;[(2)] (B) the name of the [economic poison] pesticide; [(3)] (C) a comu)lete copy of the labeling [accompanying the eco-

nomic poison ofthepesticide [and], a statement of ill claims to be made for it, [including the] and any directions for its use; [and] [(4)] (D) if requested by the [Secretary] Administrator,a full description of the tests made and the results thereof upon which the claims are based, except that data submitted in support of an applicationshall not, withoutpermission of the applicant,be con- sideredby theAdministratorin supportofany otherapplication for registrationProvided, That the Administrator may refer to any applicant'stest datain making a determination ofthe adequacyof the test dataofthe applicantnoder consideration; Compare the following paragraphwith the first sentence of section 4b of existing law. (E) thecomplete formulaof thepesticide;and (F) a request that the pesticide be classified for general use, for restricteduse, orfor both. (2) DATA IN SUPPORT OF REGISTRATIO.- The Administrator shall publish guidelines specifying the kinds of in formation which will be requiredto supportthe registrationof a pesticide and shall revise such guidelinesfrom time to time. If thereafterhe requiresany additionalkind of information he shall permit suicient time for applicantsto obtain such additionalinformation.Except asprovided by subsection (c) (1)(D) of this section and section 10, within 30 days after the Administrator registersa pesticide under thisAct he shallmake availableto the public the datacalled.forin the registrationstatement togetherwith such other scientific informationashe deems relevantto his decision.

(3) TIME FOR ACTING WITH RESPECT TO APPLICATION. The Administratorshall review the dataafter receiptofthe applicationandshall,as expeditiously as possible, either register the pesticide in accordance with paragraph(5), or notify the applicantofhis determination that it does not comply with the provisionsoftheAct in accordancewith paragraph (6).



### (4) NOTICE OF APPLICATION. The Administrator shall publish in the Federal Register,promptly after receipt of the statement and other data requiredpursuant to paragraphs(1) and (2), a notice of each application for registrationofany pesticide if it contains any new active ingredientor if it would entaila changed use pattern. The notice shall provide for aperiodof30 (laysin which any Federal agency or any other interestedpersonmay comment. Section 4bof [b.] (5) ApprovalofRegistration.-Compare the following sentence ExistingLaw with section 3(c)(1)(E) of the bill compared supra with section 4a of existing law. [The Secretary, whenever lie deems it necessary for the effective administration of this Act, 

### niay require the submission of the complete formula ofthe economic poison. If it appears to the Secretary that the composition of the article is such as to warrant the proposed claims for it and if the article and its labeling and other material required to be submitted comply with the requirements of section 3 of this Act, he shall register it.] The Administrator shall register a pesticide if he determines that, when considered with any restrictions imposed tndersubsection (d) (A) its compositionis suchas to warranttheproposedclaims for it;48

(B) its labeling and other material required to be submitted comply with the requirementsofthisAct; and

(C) it will perform its intendedfunction without substantial adverse effects on the environment. The Administratorshall notmake anylack of essentialitya criterion for denying registrationofany pesticide.

[c.] (6) DenialofRegistration.-[If it does not appear to the Sec- set-, retary that the article is such as to warrant the proposed claims for it

or if the article and its labeling and other material required to be submitted do not comply with the provisions of this Act] If theAdminis- tratordeterminesthat the requirementsofparagraph(5)for registration

are notsatisfied,he shall notify the applicant for registration of [the
manner in which the article, labeling or other material required to be submitted fail to comply with the Act so as to afford the applicant for registration an opportunity to make the corrections necessary] his determination and ofhis reasons(including thefactual basis) therefor, and that, unless the applicant corrects the conditions and notifies the Administratorthereofduring the 30-day period beginning with the day after the date on which the applicantreceives the notice, theAdministrator may refuse toregisterthepesticide. [If, upon receipt of such notice, the applicant for registration does not make the corrections, the Secretary shall refuse toregister the article.] WhenevertheAdministratorrefuses toregisterapesticide,he shallnotify the applicantofhis decisionand of hisreasons(includingthe factualbasis)therefor. The Administratorshall promptlypublishin theFederalRegisternotice ofsuchdenialofregistration and the reasonstherefor. Upon such notification,the applicant for registration or otherinterested personwith the concurrenceofthe applicant shallhavethe same remediesasprovided for in section6.Note: Compare thefollowing with sections 6(b) and6(d) of the bill.

[The Secretary, in accordance with the procedures specified herein, may suspend or cancel the registration of

an economic poison whenever it does not appear that the article or its labeling or other material required to be submitted complies with the provisions of this Act. Whenever the Secretary refuses registration ofan economic poison or determines that registration of an economic poison should be cancelled, he shall notify the applicant for registration or theregistrant ofhis action and thereasons therefor. Whenever an application for registration is refused, the applicant, within thirty days after service of notice of such refusal, may file apetition requesting that the matter be referred to an advisory committee or file objections and request a public hearing in accordance with this section. A cancellation of registration shall be effective thirty days after service of the foregoing notice unless within such time the registrant (1) makes the necessary corrections; (2) files a petition requesting that the matter be referred to an advisory committee; or (3) files objections and requests a public hearing. Each advisory committee shall be composed of experts, qualified in the subject matter and of adequately diversified professional background selected by the National Academy ofSciences and shall include one or more representatives from land-grant colleges. The size of the committee shall be determined Section 6 of the bill is as follows: SEc. 6. ADMINISTRATIVE REVIEW; SUSPENSION.

(a) CANCELLATION AFTER FIVE YEARS.- Paragraph (1) is compared, infra, with section 4f of existing law.

(2) INFORMATION.-If at any time after the registration ofa pesticide the registranthas additional factualinformation regarding substantial adverse effects on the environment of the pesticide, he shall submit such information to the Administrator.

(b) CANCELLATION AND CANOE IN CLASSIFICATION.- If it does notappearto theAdministratorthat apesticide or its labelingor othermaterialrequiredto be submittedcomplies with the provisionsof thisAct, theAdministratormay issue

a notice of his intenteither- (1) tocancel its registration or to change its classification together with the reasons (including the factual basis)forhis action,or

(2) to hold a hearingto determinewhether or not its registration should be cancelled or its classification changed. Such notice shall be sent to the registrantand madepublic. The proposedactionshallbecome final andeffective at the end of30 daysfrom receipt by the registrant, orpublication,ofa notice issued underparagraph(1), whichever occurs latest, unless within that time' either (i) the registrant makes the
necessary corrections, if possible, or (ii) a request for a hearingis made by a personadverselyaffected by the notice. In the event a hearingis heldpursuantto sucha requestor to the Administrator's determination underparagraph(2), a decisionpertaining to registration orclassificationissuedafter completion ofsuch hearingshall befinal.

Subsection (c) is compared, infra, with the corresponding materialat the end of section 4c of existing law.by the Secretary. Members of an advisory committee shall
receive as compensation for their services a reasonable per diem, which the Secretary shall by rules and regulations prescribe, for time actually spent in the work of the committee, and shall in addition be reimbursed for their

necessary traveling and subsistence expenses while so serving away from their places of residence, all of which

costs may be assessed against the petitioner, unless the
committee shall recommend in favor of the petitioner or unless the matter was referred to the advisory committee by the Secretary. The members shall not be subject to

any other provisions of law regarding the appointment
anl compensation of employees ofthe United States. The Secretary shall furnish the committee with adequate
clerical and other assistance, and shall by rules and regulations prescribe the procedures tobe followed by the
committee. The Secretary shall forthwith submit to such
committee the application for registration of the article
and allrelevant data before him. The petitioner, as well as representatives of the United States Department of Agriculture, shall have the right to consult with the advisory committee. As soon as practicable after any such submission, but not later than sixty days thereafter, unless
extended by the Secretary for an additional sixty days,
the committee shall, after independent study of the data
submitted by the Secretary and all other pertinent information available to it, submit a report and recommendation to the Secretary as to the registration of the article, together with all underlying data and a statement of the

reasons or basis for the recommendations. After due consideration ofthe views of the committee and all other data
before him, the Secretary shall, within ninety days after receipt ofthe report and recommendations of the advisory committee, make his determination and issue an order, with findings of fact, with respect to registration of the

article and notify the applicant for registration or regis- (d) PUBLIC HEARINGS AND SCIENTIFIC REVIEW.-In the event a hearing is requestedpursuant to subsection (b)

or determined upon by the Administratorpursuantto subsection (b), such hearing shall be held after due notice for the purpose of receiving evidence relevant and material

to the issues raised by the objections filed by the applicant

or other interestedparties, or to the issues stated by the Administrator,if the hearingis called by theAdministrator
ratherthan by thefiling of objections. Upon a showing of
relevance and reasonablescope of evidence sought by any party to a publichearing,the HearingExaminershall issue

a subpena to compel testimony orproduction of documents from any person. The Hearing Examinei shall be guided by theprinciples ofthe FederalRules of Civil Procedure in making any orderfor the protection of the witness or the

contentofdocumentsproducedandshallorderthepayment of
reasonablefees and expenses as a condition to requiring testimony of the witness. On contest, the subpena may be enforced by an appropriate UnitedStates DistrictCourt in
accordancewith theprinciplesstatedherein. Uponthe request of any party to a public hearing or when in the Hearing
Examiner's judgmentit is necessaryor desirable,the Hearing
Examiner shall at the outset of the hearingrefer to a Committee of the National Academy of Sciences the relevant questions ofscientificfactinvolved in thepublic hearing.The
Committee of the NationalAcademy of Sciences shall report
in writing to the HearingExaminer within 60 days after
such referralon these questions ofscientificfact. The report shall be made public andshall be consideredaspart of the hearing record. The Administratorshall enter into appropriatearrangementswith the NationalAcademy ofSciences

to assurean objective and competent scientific review of the questions presented to Committees of the Academy and to provide such other scientific advisory services as may be

req

uired by theAdministrator for carrying out the purposes of this Act. As soon as practicable after completion of ee 

# T

AVAILABLECOPYtrant. The applicant for registration, or registrant, may, within sixty days from the date of the order of the Secretary, file objections thereto and request a public hearing thereon. In the event a hearing isrequested, the Secretary shall, after due notice, hold such public hearing for
the purpose of receiving evidence relevant and material to the issues raised by such objections. Any report, recommendations, underlying data, and reasons certified to the Secretary by an advisory committee shall
be made a part of therecord ofthe hearing, if relevant and material, subject to the provisions of section 7(c) of the
Administrative Procedure Act (5 U.S.C. 1006(c)). The
National Academy ofSciences shall designate a member of
the advisory committee to appear and testify at any such hearing with respect to the report and recommendations of such committee upon request of the Secretary, the petitioner, or the officer conducting the hearing: Provided, That this shall not preclude any other member of the advisory committee from appearing and testifying at such hearing. As soon as practicable after completion of the hearing, but not later than ninety days, the Secretary
shall evaluate the data and reports before him, act upon such objections and issue an order granting, denying,

or cancelling the registration or requiring modification of
the claims or the labeling. Such order shall be based only

on substantial evidence of record of such hearing, including any report, recommendations, underlying data, and

reason certified tothe Secretary by an advisory committee, and shall set forth detailed findings offact upon which the
order is based. Compare the following sentence with section 3(f)(3) of the bill set out infra after section 4f of existing law. In connection with consideration of any registration or application for registration under this section, the Secretary may consult with any other Federal
agency or with an advisory committee appointed as herein provided. Compare the following with section 10(b)
of the bill set out infra after section 16 of existing law. hearing (includingthe reportofthe Academy) but not later than 90 days thereafter, theAdministratorshall evaluatethe
dataandreportsbefore himandissuean ordereitherrevoking his notice of intention issued pursuant to this section, or shallissue an ordereither cancellingthe registration,changing the classification,denying the registration,or requiring modification ofthe labelingorpackagingofthe article.Such order shall be based only on substantialevidence of record of such hearingand shall setforth detailed findings offact

uponwhich the orderis based.Notwithstanding thc provisions of section 3c(4), informa- tion relative to formulas ofproducts acquired by authority of this section may be revealed, when necessary under this section, to an advisory committee, or to any Federal agency consulted, or at a public hearing or in findings of fact issued by the Secretary. All data submitted to an advisory committee in support of a petition under this section shall be considered confidential by such advisory committee: Provided, That this provision shall not be construed as prohibiting the use of such data by the committee in connection with its consultation with the petitioner or representatives of the United States Depart- ment ofAgriculture, as provided for herein, and in connec- tion with its report and recommendations to the Secretary.

Note: Compare the following with section 6(c) of the 

### bill. Notwithstanding any other provision of this section, the Secretary may, when he finds that such action is necessary to prevent an imminent hazard to the public, by order, suspend the registration of an economic poison immediately. In such case, he shall give the registrant prompt notice of such action and afford the registrant the opportunity to have the matter submitted to an advisory committee and for an expedited hearing under this section. Final orders of the Secretary under this section shall be subject to judicial review, in accordance with the provisions of subsection (d). Compare the following sentence with section 3(f)(2) of the bill set out infra after section 4f of existing law. In no event shall registration of an article be construed as a defense for the com- mission of any offense prohibited under section 3 of this Act.] Section 6(c) of the bill is asfollows:
SUSPENSION. - (1) ORDER.-If the Administrator determines that actionis necessarytopreventan imminenthazardduring the time required for cancellation or change in classifica- tionproceedings,he may, by order, suspend the regis- trationofthepesticideimmediately.No orderofsuspen- sion may be issued unless theAdministratorhas issued or at the same time issues notice of his intention to cancel the registrationor change the classificationof the pesticide.

Exceptasprovidedinparagraph(3), theAdministra- tor shall notify the registrant priorto issuing any sus- pension ordir,such notice shall includefindings per- taining to the question of "imminent hazard" The registrantshallthen have an opportunity, in accordance with theprovisions ofparagraph (2), for an expedited hearingbefore theAgency on the questionofwhetheran imminent hazard exists.

(2) EXPEDITEHEARING.-Ifno request for a hearing is submitted to theAgency within five days ofthe regis- trant'sreceipt ofthe notificationprovidedfor by para- graph (1), the suspension ordermay be issuedandshall take effect. If a hearing is requested, it shallcommence withinfive days of the receipt ofthe request for such hearingunless the registrant and theAgency agreethatit shallcommence ata latertime. The hearingshallbe held in accordance with the provisions ofsubchapter II of title5 ofthe UnitedStates Code, exceptthatthepresiding officerneednot beacertifiedhearingexaminer.Noparty otherthanthe registrant and theAgency shallparticipate except that anypersonadversely affectedmayfile briefs within the time allottedby theAgency's rules. Thepre- siding officer shallhave ten daysfrom the conclusionof

the presnt on ofevidence to submit recrmmendedflnJ ings andconclusions to theAdminisrato, woho shall thenshave seven days to render afioat order on thie, isssie oj suspension.
() EMEREn CY ORDER.-Whenever the Administratordetermines that an emergency exists thatdoes not

permit him to hold ahearingbefore suspending, he may

issue asuspensionorderinadvance ofnotificationto the

registrant. In thatcase,paragraph (2) shallapply except

that the orderofsuspensionshall be in effect pending the

expedition s completion of the remedies provided by

that paragraphand the issuance of afinal order on
supedion. 

## ()JCpensio' E Afinalorderonthe question (I4) uDtcIAL REVIEW.-z 11be.......

. . i Of suspension following a hearingshall be reviewable in

accordancewith Section 16 ofthisAct notwithstanding

thefact that any related cancellationproceedings have

not been completed. Petitions to review orders on the

issue ofsuspensionshallbeadvancedon the locketofthe

courts of appeals. Any order of suspension entered

prior toahearingbefore theAdministratorshall be subject to immediate review in an action by the registrant

or other interestedperson with the concurrence of the

registrantin an appropriatedistrictcou"'t, solely to determine whether the order of suspensionwas arbitrary,
capriciousoran abuse ofdiscretion,or whetherthe order

was issuedin accordanc with theproceduresestablished
by law. The effect ofany orderofthe ccourtwillbe only to

stay the effectiveness of the suspension order, pending
hearing before the Administrator. This action may be

maintained simultaneously with any administrative

reviewproceeding underthis section. The commencement
of

proceedingsunderthisparagraphshallnotoperateas

a stay oforder,unless orderedby the covrt.

Section 6(e) of the bill is as follows:

(e) JUDICIAL REVIEW. -Final ordersofthe Administrator

under this sectionshall be subject tojudicialreviewpursuant

to section 15.

### Comparison of section 4dof existing law with section 16(b) of the bill. 

## S4dof [d.] (b) Review by CourtofAppeals.-In [a] the case ofactual con. F ng l~w troversy as to the validity of any order [under this section] issuedb6, the Administrator following a public hearing, any person who will be adversely affected by such order may obtain judicial review by film 5 in the United States court of appeals for the circuit wherein suoc person resides or has [his principal] a place of business, [or inthe United States Court of Appeals for the District of Columbia Circuit,] within [sixty] 60(lays after theentry of such order, apetition praying that the order be set aside in whole or in part. A copy ofthe petition shall be forthwith transmitted by the clerk of the court tothe [Secretary,] Administrator or any officer designated by him for thatpurpose, and thereupon the [Secretary] Administratorshall file in the courtthe record of the proceedings on which he based his order, as provided in section 2112 of title 28, United States Code. Upon the filing ofsuch petition the court shall have exclusive jurisdiction to affirm or set aside the order complained of in whole or in part. The court shall considerallevidence of record.The [findings] orderof the [Secretary] Administrator[with respect to questions offact] shall be sustained if it is supported by substantial evidence when considered on the record

as a whole[, including any report and recommendation of an advisory committee. If application is made to the court for leave to adduce additional evidence, the court may order such additional evidence to be taken before the Secretary, and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may
seem proper, if such evidence is material and there were reasonable grounds for failure to adduce such evidence in the proceedings below. The Secretary may modify his findings as to the facts and order by

reason of the additional evidence so taken, and shall file with the court such modified findings and order]. The judgment of the court affirming or setting aside, in whole or in part, any order under this section shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title [18] 28 of the United States Code. The commencement of proceedings under this section shall not, unless specifically ordered by the court to the contrary, operate as a stay of an order. The court shall advance on the docket and expedite the dispositionof all [causes]

casesfiled therein pursuant to this section.



### The following is a comparison of section 4e of existing law with section 3(b) of the bill.

SExtine of 

### [e.] (b) Exemptions. [Notwithstanding any other provision of this Act, registration is not required in the case of an economic poison shipped from one plant to another plant operated by the

same person and used solely at such plant as a constituent part to make an economic poison which is registered under this Act] A pesticidewhich isnot registeredwith theAdministratormay be transferredif- (1) the transfer isfrom one registered establishmentto another registered establishment operated by the same producer solelyfor packagingat the second establishment orfor use as a constituent part of anotherpesticideproduced at the second establishment;or

(2) the transfer is pursuant to and in accordancewith the re- quirements ofan experimentalusepermit.

### 55

The following is a comparison of section 4f of existing law with 'section 6(a)(1) ofthe bill.

[f.] (a) Cancellation After Five Years.- s fionHf (1) Procedure.-The [Secretary] Administrator[is authorized to] Ei" ' 'shallcancel the registration of any [economic poison] pesticideat the end of [a period of five years following the registration of such eco- nomic poison] the five-yearperiodwhich beginson the dateofitsregistration (or at the end of any five-year period thereafter [,]) unless the registrant, orotherinterestedpersonwith the concurrenceofthe registrant, [prior to] before the [expiration] end of [each] such [five-year] :period, requests in accordance with regulations [issued by the Sec- :retary] prescribedby the Administratorthat [such] the registration be continued in effect: Provided, That the Administratormay permit the continuedsaleand use ofexistingstocks ofapesticidewhose registration is canceled under this subsection or subsection (b) to such extent, undersuchconditions,andforsuchusesashemay specify if hedetermines that such sale or use is not inconsistentwith the purposes of this Act and will not have substantialadverse effects on the environment. The Administrator shall publish in the FederalRegister, at least 30 days priorto the expirationofsuchfive-yearperiod,notice that the registration will be canceled if the registrantor other interestedpersonwith the con-
arrenceofthe registrant doesnot requestthatthe registration be continued in effect.



### The following constitute sections 3(d) through 3(f) ofthe bill. (d) CLASSIFICATION OF PESTICIDES.- (1) CLASSIFICATION FOR GENERAL USE, RESTRICTED USE, OR BOTH.- (A) As apart ofthe registrationofa pesticidetheAdministratorshallclassify it as being for general use or for restricted
use, provided that if the Administratordeterminesthat some of the uses for which thepesticideis registeredshouldbeforgeneral

use andthat other usesfor which it is registeredshould befor restricted use, he shall classify itfor both general use and restricteduse. If some ofthe uses of the pesticide areclassified for generaluse and other uses are classifiedfor restricted use, the directions relating to its general uses shall be clearlyseparated and distinguished from those directions relatingto its restricteduses: Provided,however, That the Administratormay requirethat its packagingand labeling for restricteduses shall be clearly distinguishable from its packaging and labeling for generaluses.

(B) If theAdministratordetermines thatthe pesticide, when applied in accordancewith its directions for use, warningsand cautionsand for the usesfor which it is registered,or for one or
more ofsuch uses, orin accordancewith a commonly recognized practice,will notcausesubstantial adverseeffects on the environment, he will classify the pesticide, or the particular use or
uses of the pesticide to which the determinationapplies,for generaluse.(C) If the Administrator determines that the pesticide, whenappliedin accordancewith itsdirections for use,warnsngs andcautionsand for the usesfor which it is registered,or for

one or more ofsuch uses, or in accordancewith a commonly recognizedpractice, may cause, without additionalregulatory restrictions,substantialadverse effects on the environment,includinginjury to the applicator,he shallclassify thepesticide,
orthe particular use oruses to whichthe determinationapplies, for restricteduse. (i) If the Administrator classifies a pesticide, or one
ormore uses ofsuchpesticide, for restricteduse becauseof

adeterminationthatthe acutedermalor inhalation toxicity of the pesticide presents a hazard to the applicatoror other persons, the pesticide shall be applied for any use to which the restrictedclassificationapplies only by or underthedirectsupervisionofa certifiedapplicator.

(ii) If the Administratorclassifies a pesticide, or one
ormore uses ofsuchpesticide,forrestricteduse becauseof

a determinationthat its use without additionalregulatory restriction may cause substantialadverse effects on the environment, thepesticideshall be applied forany use to whichthe determination applies only by orunderthedirect supervisionofa certifiedapplicator,orsubjecttosuch other restrictionsas the Administrator mayprovidebyregulation. Any such regulationshall be reviewable in the appropriate courtofappealsuponpetitionofapersonadverselyaffected filedwithin 60days of the publication of theregulationin final form. (2) CHANGE IN CLASSIFICArIOu.-If the Administrator deter- mines that a change in the classificationof any use ofa peticide from generaluse to restricted use is necessaryto preventsubstantial adverse effects on the environment, he shallnotify the registrant of suchpesticideof suchdeterminationat least30 days beforemaking the change and shallpublish the proposed change in the Federal Register. The registrant,orother interestedpersonwith the concur- renceofthe registrant, may seek relieffromsuchdeterminationunder section6(b). Compare the following with the proviso in section 4a of existinglaw. (e) PRODUCTS WITH SAME FORMULATION AND CLArs.-Producs which have the sameformulation, are manufacturedby the same person, the labelingofwhichcontainsthesame claims,andthe labelsofwhich bear a designation identifying the product as the same pesticide may be registeredas a singlepesticide;andadditionalnamesandlabelsshallbe addedto the registration by supplementalstatements. (f) MISCELLANEOUSCompare the following with the proviso at the end of section 3a(l) ofexisting law. (1) EFFECT OF CHANGE OF LABELING OR FORMULATION.-If the labelingorformulation for a pesticideis changed,the registration shallbe amendedto reflectsuchchangeif theAdministratordetermines thatthe changewill notviolate anyprovisionofthisAct. Compare the following with the last sentence of section 4c of existing law. (2) REGISTRATION NOTA DEFENSE.-Innoevent shallregistration of an article be construed as a defensefor the commission of any offense under this Act: Provided, That as long as no cancellation proceedingsare in effect registrationof apesticide shall be prima face evidence that the pesticide, its labeling andpackagingcomply with theregistration provisionsofthe Act.

### Compare the following with similar sentence in section 4c of existing law. (3) AUTHORITY TO CONSULT OTHER FEDERAL AGENCIES.-In 

### connectionwith considerationofany registration orapplication for registrationunderthis section, the Administratormay consult with any otherFederalagency. The following constitutes sections 4 and 5 of the bill.

SEC. 4. USE OFRESTRICTED USE PESTICIDES;CERTIFIED APPLICATORS. 

### (a) CERTIFICATION PROCEDURE.- (1) FEDERAL CERTIFICATION.-Subject 

### to paragraph (2), the Administrator shall prescribe standardsfor the certification of applicatorsofpesticies. Such standardsshall provide that to be certified, an individual must be determined to be competent with respectto theuseandhandlingof pesticides,ortotheuseandhandling of the pesticide or class ofpesticidescovered by such individual's certification.

(2) STATE CERTIFICATION.-if

### any State, at any time, desires to certify applicatorsofpesticides, the Governorofsuch State shall submit a State planfor such purpose. The Administrator shall approvetheplansubmittedby anyState, orany modificationthereof, if suchplan inhisjudgment- (A) designatesa State agency as the agency responsible for administeringtheplanthroughouttheState;

(B) containssatisfactoryassurancesthatsuchagency has or willhave the legalauthorityandqualified personnelnecessaryto carryout theplan;

(C) gives satisfactory assurancesthat the State will devote adequate funds to the administration oftheplan. (D)provides that the State agency will make such reportsto theAdministratorin suchform andcontainingsuch informa- tionas theAdministratormayfrom time to time require; and

(E) contains satisfactory assurancesthat State standards for the certification of applicatorsofpesticides conform with those standards prescribed by the Administrator under paragraph(1). Any Statecertificationprogramunderthissectionshall be maintained inaccordancewiththe Stateplanapprovedunder thissection.

(b) STATE PLANS.-If 

### the Administratorrejects a plan submitted underthisparagraph,he shall affordthe State submittingtheplandue noticeandopportunity forhearingbefore so doing.If theAdministrator approves aplan submitted under thisparagraph,then such State shall certify applicatorsofpesticideswith respect to such State. Whenever the AdministratordeterminesthataState isnotadministeringthecertification program in accordance with theplan approved under this section, he shall so notify the State andprovidefor a hearingat the request ofthe State,and,ifappropriate correctiveactionis nottaken withinareasonable time,notto exceedninetydays,the Administrator shallwithdrawapproval o] suchplan.

### 58

SEC. 5. EXPERIMENTAL USE PERMITS.

(a) ISSUAYCE.-Any 

### person may apply to the Administrator

### for

anexperimentaluse permit for apesticide. TheAdministratormay issue
an experimental use permit if he determines that the applicantneeds such permit in orderto accumulate information necessary to registera 

### pesticideundersection3.An application foranexperimentalusepermit may be filedatthe time ofor before orafteran application forregistration isfiled.

(b) TEMPORARY TOLERANCELEVEL.-IftheAdministrator determines that the use ofa pesticide may reasonablybe expected to result in any residue on orin food or feed, he may establisha temporarytolerancelevl for the residueofthepesticidebefore issuingthe experimentalusepermit.

(c) USE UNDER PERMIT.-Use

### of apesticide under an experimental
usepermit shallbe underthe supervisionoftheAdministrator,andshall be subject to such terms and conditionsand befor suchperiod of time as the Administratormay prescribe in the permit.

(d) STUDIES.-When any experimental use permit is issuedfor a pesticidecontaininganychemicalor combinationofchemicalswhich has not beenincludedin anypreviouslyregistered pesticide,theAdministrator may specify that studies be conducted to detect whether the use ofthe pesticide under the permit may cause substantialadverse effects on the environment.All results ofsuch studies shallbe reportedto theAdminis. tratorbefore suchpesticidemay be registeredundersection 3.

(e) REVOCATION.-The Administratormay revoke any experimental
use permit,at any time, if hefinds that its terms or conditions arebeing violated,orthatitstermsandconditionsareinadequatetoavoidsubstantial adverse effects onthe environment.

(f) STATE ISSUANCE OF PERMITS.-Notwithstanding the foregoing provisionsof this section, the Administratormay, under such termsand conditions as he may by regulationsprescribe,authorize any State to issuean experimentaluse permit for apesticide.All provisionsofsection 

## 4 relatingto Stateplans shall apply with equal force to a Stateplan for the issuanceofexperimental usepermits underthissection.



### Section 6 of the billis compared, supra, with the similarprovisions of section 4 of existing law.

Section 7ofthe bill is as follows: SEC. 7. REGISTRATION OF ESTABLISHMENTS.

(a) REQUIREMENT.-No person shall produce any pesticide subject 

### to thisAct inany State unless the establishmentin which it isproduced is registeredwith the Administrator. The application for registration ofany establishmentshall includethe name andaddressofthe establish- ment andoftheproducerwho operatessuch establishment.



### (b)REGISTRATION .- 

### Whenever the Administratorreceives an applica- tion undersubsection (a), he shallregisterthe establishmentandassignit an establishmentnumber.

(c) INFORMATION REQUIRED.- (1) Any producer operating an establishment registeredunder this sectionshallinform theAdministratorwithin30 days afterit is registeredofthe types andamountsofpesticides- (A) whichhe iscurrentlyproducing; (B) which he hasproducedduringthepastyear; and (C) which he has sold ordistributedduringthepastyear. The informationrequiredby thisparagraph shallbekept currentand submitted to the Administrator annually as required under such regulationsas theAdministrator mayprescribe. (2) Any suchproducer shall, upon the requestoftheAdministrator for thepurpose of issuinga stopsale orderpursuantto section 18, inform him ofthe nameandaddressofany recipientofanypesticide producedin any registeredestablishmentwhich he operates.(d) CONFIDENTIAL RECORDS AND INFORMATION.-Any information submitted to the Administratorpursuantto subsection (c) shall be con- ;sideredconfidentialandshallbe subjectto the provisionsofsection 10.
[Books and Records]


### ,SEC. 8. BooKs AND RECORDS. SetionSof [Sec. 5.] (a) REQUIREMENT.-TheAdministratormayprescriberegu- 

### EisingL" nations requiring producersto maintain such recordswith respectto their ,operations and the pesticides and devicesproduced as he determinesare necessaryfor the effective enforcement of thisAct. No records required under this subsection shall extend tofinancialdata,sales dataotherthan ,shipment data, pricing data, personnel data, and researchdata (other than data relatingto registered pesticides or to a pesticide for which an application for registrationhas been filed). (b) INSPECTo,. -For the purposes of enforcing the provisions of this Act, any [manufacturer] producer,distributor, carrier, dealer,

or any other person who sells or offers for sale, delivers or offers for delivery [or who receives or holds any economic poison] any pesticids or device subject to this Act, shall, upon request of any officer or employee of the [United States Department of Agriculture] Environmental ProtectionAgency or of any State [, Territory,] or political subdivision, duly designated bythe [Secretary] Administrator, furnish or permit such person at all reasonable times tohave access to, and to copy :(1) all records showing the delivery, movement, orholding of such [economic poison] pesticide or device, including the quantity, the date of shipment and receipt, and the name of the consignor and consignee; [and] or (2) in the event of the inability of any person to produce records containing such information, all other records and information relating to such delivery, movement, or holding of the '[economic poison] pesticide or device. [Notwithstanding this pro- ,vision, however, the specific evidence obtained under this section

or any evidence which is directly or indirectly derived from such evidence shall not be used in a criminal prosecution of the person from whom obtained.] Any inspection with respectto any recordsand information referred to in this subsectionshall not extend tofinancial data,sales data other than shipment data,pricingdata,personnel data, andresearchdata (other than datarelatingto registered pesticides or to a pesticide for which an application for registrationhasbeen filed). 

### Comparison of section 6(a) of existing law with section 24 of the bill. [Enforcement]

Section Go of SEC. 24. AUTHORITY OF ADMINISTRATOR. Existing Law

[SeC. 6.a.] (a) REaULATIoNS.-The [Secretary] Administrator [(except as otherwise provided in this section)] is authorized to [make rules and] prescriberegulations [for carrying] to carry out the provisions of this Act 

## [, including the collection and examination of samples of economic poisons and devices subject to this Act and com

### pare the following clause with subsection (c)(6) infra the determination and establishment of suitable names to be used in the ingredient statement]. Such regulationsshall take into account the difference in concept and usage between variousclassesofpesticides.

### 60

"(b) EXEMPTION OF PESTICIDES.-TheAdministrator

### may exempt' from the requirements ofthis Act by regulationanypesticide whichk determineseither (1) to beadequatelyregulatedbyanotherFederalagency,
or (2) to be ofa character which is unnecessaryto be subject tothisAct in orderto carryoutthepurposesofthisAct.

(c) OTHER AUTHORITY.-The [Secretary] Administrator,

### [is, in addition, authorized] after notice and opportunity for hearing, is authorized-- (1) to declare a pest any form of plant or animal life [or virus] (other than man and other than bacteria,virus, andother micro-organismson or in living man or otherliving animals)which is injurious to [plants, man, domestic animals, articles, or substances] healthor the environment;

(2) to determine [economic poisons] any pesticide which containsany substance or substancesin quantities [and quantities of substances contained in economic poisons which are] highly tovic to man; [and]

(3) to establish standards (which shall be consistent with those established under the authority of the Poison Prevention PackagingAct (PublicLaw 91-601)) with respect to the package, container, or wrapping in which a pesticide or device is enclosed for use orconsumption,in orderto protectchildrenandadults from serious injury or illness resultingfrom accidental ingestion or contact withpesticidesor devices regulatedby thisAct as well as to accomplishthe otherpurposesofthisAct;

(4) to specify those classesofdevices which shallbe subject to any provision of paragraph2(q)(1) or section 7 of this Act upon his determination that application of such provision is necessary to effectuate the

purposesofthisAct; [3](5) [to determine standards of coloring or discoloring for economic poisons, and to subject economic poisons tothe require- ments of section 3a(4) of this Act[.] to prescribe regulations reguirinqany pesticide to be colored ordiscolored ifhe determines thatsuch reguirementis feasibleand is necessary for theprotectionof healthand the environment;and



### Compare the following with the similar clause in section 6a ofexisting law supra.

(6) to determine and establishsuitable names to be used in the ingredientstatement. 

### Comparison of section 6b of existing law with section 16(e) of the bill.

E.ifingt1- [b.] (e) Regulations.-The Secretary of the Treasury [and the Secretary ofAgriculture], in consultationwith the Administrator,shall [jointly] prescribe regulations for the enforcement of this section [10 ofthis Act].

### Comparison ofsection 6c ofexisting law with section 9(c) ofthebill.
[c.] (c) Enforcement.- Section 6 of (1) CERTIFICATION OF FACTS TO ATTORNEY GENERAL.-The m'g 1w 

### examination of [economic poisons] pesticidesor devices shall be made in the [United States Department of Agriculture] Environmental ProtectionAgency or elsewhere as the [Secretary] 

### Administratormay designate for the purpose of determining from such [examination] examinationswhether they comply with the requirements of this Act 

## ,[ and if]. If it shall appear from any such examination that they fail to comply with the requirements of this Act, the [Secretary] Administratorshall cause notice to 

### be given to the person against whom criminal orcivilproceedings
are contemplated. Any person so notified shall begiven anopportunity to present his views, either orally or inwriting, withregard to such contemplated proceedings, and if in the opinion of the [Secretary] Administratorit appears that the provisions of this Act have been violated by such person, then the [Secretary] Administratorshall certify the facts to the [proper United States attorney] ey General, with a copy of the results of the analysis or the 

### examination of such [article:] pesticidefor the institution of a criminalproceedingpursuantto section 14(b) ora civil proceeding under section 14(a), when the Administrator determinesthatsuch actionwillbe sufficientto effectuatethepurposes ofthisAct:



### (2) NOTICE NOT REQUIRED.-The notice of contemplated proceedingsandopportunitytopresentviews set forth in this subsection

are not prerequisitesto the institution of any proceeding by the Attorney General.

(8) WarningNotices.-[Provided,That nothing] Nothing in 

### this Act shall be construed as requiring the [Secretary] Administratorto [report for prosecution or for the institution of libel proceedings] instituteproceedinqs for prosecution of minor vio

### lations of this Act whenever he believes that the public interest will be adequately served by a suitable written notice ofwarning. Comparison ofsections6 d ande ofexisting law with sections 15 (c) and (d) of the bill.

[d. It shall be the duty of each United States attorney, to whom Section6d of 

### the Secretary or his agents shall report any violation of this Act, to Eoing L-w



### cause appropriate proceedings to be commenced and prosecuted in the proper courts of the United States without delay.]

(C) JURISDICTION OF DISTRICT CouRTs.-The district courts of the United States are vested withjurisdictionspecifically to enforce, and to prevent andrestrainviolationsof, thisAct.

[e.] (d) NOTICE OF JUDMENrs.-The [Secretary] Administrator Section of shall, by publication 

### in such manner as he may prescribe, give notice ExotingLaw 

### of all judgments entered in actions instituted under the authority of this Act.

Comparison ofsection 7 ofexisting law with section 12(b) ofthe bill.

### 62

[EXEMPTIONS]

Section7of [SEc. 

### 7.a.] (b) Exemptions.-The penalties provided for aviolation (There i'no of [section 3a of this Act] paragraph(1) of subsection (a) shall not subsionb) 

### apply to- (1) any person who establishes a guaranty signed by, and containing the name and address of, the registrant or person residing in the United States from whom he purchased [and]or received in good faith the [article] pesticidein the sameunbroken package, to the effect that the [article] pesticidewas lawfully registered at the time of sale and delivery to him, and that it 

### complies with the other requirements of this Act, [designating thisAct. In]andinsuch case the guarantor shall be subjecttothe penalties which would otherwise attach to the person holding the guaranty under the provisions of this Act;

(2) any carrier while lawfully [engaged in transporting an economic poison] shipping,transporting, ordelivering forshipment anypesticideor device, if such carrier uponrequest [by aperson] ofany officer or employee duly designated by the [Secretary] Administratorshall permit such [person] officer or employee to copy allofitsrecords [showing the transactions in and movement of the articles] concerningsuchpesticide ordevice;

(3) [to] any public [officials] official while engaged in the performance of [their] his official duties;

(4) [to the manufacturer or shipper of an economic poison for experimental use only by or under the supervision of any Federal or State agency authorized by law to conduct research in thefield ofeconomic poisons; orby others if a permit has been obtained before shipment in accordance with regulations promul- gated by the Secretary] any person using or possessing any 

### pesticideasprovided by an experimental use permit in effect with respectto suchpesticideand such use orpossession;or

(5) any person who ships a substance or mixture of substances beingputthrough tests in which thepurpose is only to determineits value forpesticidepurposesor todetermine its toxicity orotherprop- ertiesand from which the userdoes not expect to receiveany benefit in pest controlfromits use. 

### Comparison of section 8 of existing law with section 14 of the bill.

Section tof SEC. 14. PENALTIES. 

### [Penalties]
Existing Law, (a)CIVIL PENALTIES.- (1) IN GENERAL.-Any registrant, commercialapplicator,wholesaler,dealer, retailer,or otherdistributorwho violates any provision of this Act may be assessed a civil penalty by the Administrator ofnot morethan $6,000for each offense.

(2) PRIVATE PESTICIDEAPPLICATOR.-Any private applicator
or other person not included in paragraph (1) who violates any provision of this Act subsequent to receiving a written warning from theAdministratororfollowing a citation for apriorviolation, may be assessed a civil penalty by the Administratorof not more than$1,000for each offense.

### 63
(3) HEARING.-No civil penalty shall be assessed unless the person chargedshall have been given notice and opportunity for a hearingon suchcharge in the county,parish,orincorporatedcity of the residenceofthepersoncharged.In determiningthe amountofthe penalty theAdministratorshallconsiderthe appropriateness ofsuch penalty to the size ofthe businessofthepersoncharged,the effect on the person's ability to continue in business, and the gravity ofthe violation.



### (4)REFERENCES TO ATTORNEY GENERAL.-In case ofinability
to collect such civil penalty or failure ofany person topay all, or suchportionofsuchcivilpenaltyastheAdministrator maydetermine, theAdministratorshall refer the matter to theAttorney General,who shall recoversuch amountby actionin the appropriateUnitedStates districtcourt. (b) CRIMINAL PENALTIES.- [SEc. 8. Any person violating section 3a(1) of this Act shall be guilty of a misdemeanor and shall on conviction be fined not more than $1,000.]

[b.] (1) In General.-Any [person violating] registrant, commercial applicator,wholesaler,dealer,retailer,or otherdistributorwho knowingly violates any provision [other than section 3a(1)] of this Act shall be guilty of a misdemeanor and shall [upon] on conviction be fined not more than [$500 for the first offense, and on conviction for each subsequent offense be fined not more than $1,000] $26,000,

or imprisoned for not more than one year, or both [such fine and imprisonment: Provided, That an offense committed more than five years after the last previous conviction shall be considered a first offense. An article the registration of which has been terminated may not again be registered unless the article, its labeling, and other material required to be submitted appear to the Secretary to comply with all the requirements of this Act].

(2) PRIVATE APPLICATOR.-Any private pestwide applicator or otherpersonnot included in paragraph(1) who knowingly violates any provision of this Act shall be guilty of a misdemeanor and shall on conviction befined not more than $1,000, or imprisoned for not more than50 days, orboth.

[c.] (3) DISCLOSURE OF INFORMATION-. [Notwithstanding any other provision of this section, in case any]Any person, who, with intent to defraud, uses or reveals information relative to formulas of products acquired under the authority of section [4 of this Act]3,Lhe] shall be fined not more than $10,000,

orimprisoned for not more than three years, or both [such fine and imprisonment].

[d.] (4) Acts of Officers, Agents, Etc.-When construing and enforcing the provisions of this Act, the act, omission, or failure [,] of any officer, agent, or other person acting for or employed by any person shall in every case be also deemed to be the act, omission, or failure of such person as well as that of theperson employed.

Comparison of section 9 of existing law with section 13 ofthe bill.

### 64

[SEIZURES]

SEC. 

### 13. Stop Sale, Use,RemovalandSeizure. sedo, 9of [Sec. 9.] 

### (a)STOP SALE, ETC., ORDERs.-Whenever

### anypesticide Exng law, ordevice isfoundby theAdministratorin any State and therevs reason 

### to believe on the basisofinspectionor tests thatsuchpesticide or de is inviolation ofany oftheprovisionsofthisAct, orthatsuchpestioi&

or device has been oris intendedto be distributedorsold in violationof any suchprovisions, orwhen the registrationofthe pesticide ord e hasbeencanceledbyafinalorderorhasbeensuspended,theAdministrator may issuea writtenorprinted"stop sale, use, or removal" orderto any personwho owns, controls,orhascustodyofsuchpesticide ordevice,and afterreceiptofsuchordernopersonshallsell,use, orremove thepesticide
ordevice describedin the order except in accordancewith the provisions ofthe order.

[a.] (b)Seizure.-Any [economic poison] pesticideor device thatis being transported [from oneState, Territory, or District to another,] or, having been transported, remains unsold or in orginal unbroken packages, orthat issoldor offered for salein [theDistrict ofColumbia
or any Territory] any State, or that is imported from a foreign country, shall be liable to be proceeded against in any district court [of the United States] in the district where itis found and seizedfor confiscation by a process [oflibel] inrem for condemnation if-

(1) in the case of [an economic poison] apesticide- [(a)] (A) [if] itis adulterated or misbranded; [(b)] (B) [if] it is not registered pursuant to the provisions of section [4 of this Act] 3;

[(c)] (C) [ifitfails to bear on itslabel] itslabeling failsto bearthe information required by this Act; [or]

[(d)] (D) [if] it is [a white powder economic poison and is] not colored ordiscoloredandsuch coloringordiscoloringis [as] required under this Act; or

(E) any ofthe claimsmadefor it orany ofthe directions for its use differin substancefrom the representations made in connectionwithits registration;

(2) in the case of a device [if], it is misbranded [.]; or 

### (3) in the case ofapesticide or device, when usedinaccordancewith the requirementsimposed underthisAct andas directedby the labeling, it nevertheless causes substantial adverse effects on the environment. Inthecase ofaplantregulator, defoliant,ordesiccant,usedinaccordance with the label claims and recommendations,physical or physiological effects onplants orpartsthereofshallnot be deemed to be injury, when such effects are the purpose for which theplant regulator,defoliant, or desiccantwasapplied.

[b.] (c)DispositionafterCondemnation.- If the [article] pesticide

ordevice is condemned it shall, after entry of the decree, be disposed of 

### bydestruction or sale asthe court may direct and the proceeds, ifsold, less the [legal] court costs, shall be paid into the Treasury of the United States, but the [article] pesticide ordevice shall not be sold contrary to the provisions of this Act or [of] the laws of the juris- diction in which it is sold: Provided,That upon the payment of the costs of the [libel] condemnationproceedings and the execution and delivery of a good and sufficient bond conditioned that the [article] pesticideordevice shall notbe soldor otherwise disposed of contraryto the provisions of [this] theAct or the laws of any [State, Territory,

### 65

or District]jurisdictionin which sold, the court may direct that such [articles] pesticide or device be delivered to the owner thereof. The proceedings of such [libel] condemnationcases shall conform, as near as may be, to the proceedings in admiralty, except that either party may demand trial byjury of anyissue of factjoined in any case, and all such proceedings shall be at the suit of and in the name of the United States.

[c.] (d) Court Costs, Etc.-When a decree of condemnation is entered against the [article] pesticide ordevice, court costs and fees, storage, and other proper expenses shall be awarded against the person, if any, intervening as claimant of the [article] pesticide or device.



### Comparison ofsection 10 ofexisting law with section 16 ofthe bill.

[IMPoRTs]

SEC. 

### 16. IMPORTSAND EXPORTS. Section0of Existing Law 

### For a comparison ofsection 3b ofexisting law with section 16(a) of the bill, see section 3b, supra.

(b) CANCELLATION NOTICES FuRNISHED TO FOREIGN GOVERNMENTS.-Whenever a cancellation of the registration of a pesticide becomes effective, the Administrator shall transmit through the State Department copies ofeach notice of cancellation of a registrationof a pesticide to the governments of other countriesand to appropriateinternationalagencies.

(c) ImportationofPesticidesandDevices.-[SEc. 10.] The Secretary 

### ofthe Treasury shall notify the [Secretary of Agriculture] Adminis- trator of the arrival of [economic poisons] pesticides and devices [offered for importation] and shall deliver to the [Secretary ofAgri- culture] Administrator, upon his request, samples of [economic poisons] pesticidesor devices which are being imported [or offered for import] into the United States, giving notice to the owner or con- signee, who may appear before the [Secretary ofAgriculture] Administratorand have the right to introduce testimony. Ifit appears from the examination of a sample that it is adulterated, or misbranded or otherwise violates the [prohibitions] provisionsset forth in this Act,
oris otherwise [dangerous to the health of the people of the United States, or is of a kind forbidden entry into or forbidden to be sold or restricted in sale in the country in which it is made or from which it is exported] injuriousto health orthe environment, the [said article] pesticide or device may be refused admission, and the Secretary of the Treasury shall refuse delivery to the consignee and shall cause the destruction of any [goods] pesticide or device refused delivery which shall not be exported by the consignee within [three months] 90 days from the date of notice of such refusal under such regulations
as the Secretary of the Treasury may prescribe: Provided,That the Secret ry of the Treasury may deliver to the consignee such [goods] pesticide or device pending examination and decision in the matter on execution of [penal] bond for the amount of the full invoice value of such [goods] pesticide or device, together with the duty thereon, and on refusal to return such [goods] pesticideordevice for any cause to the custody of the Secretary of the Treasury, when demanded, for the purpose of excluding them from the country, or for any otherpurpose, said consignee shall forfeit the full amount of [the] said bond:Andprovided further,That all charges for storage, cartage, and labor on [goods] pesticides ordevices which are refused admission or delivery shall be paid by the owner or consignee, and in default of such payment shall constitute a lien against any future importation made by such owner or consignee.

(d) Cooperationin InternationalEfforts.-The AdministratorshAd, in cooperationwith the Departmentof State andany otherappropriate Federalagency, participateand cooperate in any internationalefforts to develop improvedpesticide researchand regulations.

For comparison of section 6b of existing law with section 16(e) of the bill, see section 6b, supra.

Comparison of section 11 of existing law and section 21(a) ofthebill.

[DELEGATION OF DUTIES]

SEc. 21. DELEGATION AND COOPERATION. Se.tio I.. [SEc. 11.] (a)Delegation.-Allauthority vested in the [Secretary] Administratorby virtue of the provisions of this Act may with like force and effect be executed by such employees of the [United States Department of Agriculture] EnvironmentalProtectionAgency as the [Secretary] Administratormay designate for the purpose.

For comparison of section 13 of existing law with section 21(b) of the bill, see section 13, infra.

Comparison of section 12 of existing law with section 26of the bill.

[AUTHORIZATION FOR APPROPRIATIONS AND EXPENDITURES]

SEC. 26. AUTHORIZATION FOR APPROPRIATIONS. mseti,1f [SEc. 12.a.] There is [hereby] authorized to be appropriated 

## [, out of any moneys in the Treasury not otherwise appropriated,] such sums as may be necessary [for] to carry out the [purposes] provisions[and administration] of this Actforeach fiscalyearending June 30, 1972,June30, 1973, June30, 1974, andJune 30, 1975. The amounts authorizedto be appropriated for anyfiscalyear ending after June 30, 1975,shall be the sums hereafterprovidedby law' The expenses of the Federal Government in carrying out the provisions of this Act shall be paidsolely out of funds so appropriated,and no fee other than reasonablefeesfor registrationof pesticides under section 3 shall be requiredto be paid to the Federal Government in connection with any activity under thisAct. [In order to carry out the provisions of this Act, which take effect prior to the repeal of the Insecticide Act of 1910, appropriations available for the enforcement of such Act are authorized to be made available.]



### [b. The Secretary is authorized from the funds appropriated for this Act to make such expenditures as he deems necessary, including rents, travel, supplies, books, samples, testing devices, furniture, equipment, and such other expenses as may be necessary to the administration of this Act.]

Comparison of section 13 of existing law with section 21(b) of the bill.[COOPERATION] [SEC. 

### 13.] (b) Cooperation.-The [Secretary] Administrator [is Seon11of 

### authorized to] shallcooperate with theDepartmentofAgriculture,any F'iin' 

### other [department or agency of the Federal Government and with the official agricultural or other regulatory agency of any State, or any State, Territory, District, possession,] Federalagency, andanyappropriate agency of any State or any political subdivision thereof, in carrying out the provisions of this Act, and in securing uniformity of regulations.

Comparison ofsection 14 ofexisting law with section 25 ofthe bill.

[SEPARABILITY]
SEc. 25. Severability.



### [SEc. 14.] If any provision of this Act [is declared unconstitu- Stion1 4of 

### tional,] or the [applicability] applicationthereof to any person or Exwi~gLow 

### circumstance isheld invalid, the [constitutionality ofthe remainder of this Act and the applicability thereof to other persons and circumstances shall not be affected thereby] invalidityshallnot affect other provisions or applicationsofthis Act which can be given effect without regardto the invalidprovision orapplication,andto this end theprovisions ofthisAct areseverable.

[EFFECTIVE DATE [SEc. 

### 15. All provisions of this Act, except section 3, "Prohibited Stion15of 

### Acts"; section 8, "Penalties"; section 9, "Seizures"; and section 10, Existing Law 

### "Imports", shall take effect upon enactment, and sections 3, 8, 9, and 10 of this Act shall take effect as follows: (1) As to devices, upon enactment; (2) as to rodenticides and herbicides, six months after enactment; and (3) as to insecticides, fungicides, and all other eco- nomic poisons,one year after enactment:Provided,That theSecretary, upon application, may at any time within one year after sections 3, 8, 9, and 10 of this Actbecome applicable to devices, rodenticides and herbicides, and insecticides, fungicides, and other economic poisons, respectively, if he determines that such action will not be unduly detrimental to the public interest, and is necessary to avoid hardship, exempt, under such terms and conditions as he may prescribe, any economic poison from the provisions of this Act if such economic poison was labeled, shipped, and delivered by the manufacturer thereof prior to the time the sections of this Act referred to above become applicable to such economic poison and in case the economic poison is an insecticide or fungicide if its sale, delivery, or shipment has not been and will not be in violation of the provisions of the Insecticide Act of 1910.

[REPEALS

[SEc. 

### 16. The Insecticide Act of 1910, approved April 26, 1910 Stion 16of 

### (36 Stat. 331, 7 U.S.C. 121-134), is hereby repealed one year after ExiingLow 

### the date of the enactment of this Act: Provided,That, with respect to violations, liabilities incurred, or appeals taken prior to said date, and with respect to sales, shipments, or deliveries of insecticides and fungicides under an exemption granted by the Secretary under section 15, all provisions of the Insecticide Act of 1910 shall be deemed toremain in full force for the purpose of sustaining any proper suit action, or other proceeding with respect to any such violations, liabilities, appeals, or to such sales, shipments or deliveries of i., secticides and fungicides exempted by the Secretary under section 15.]

Section 9 (a) and (b) of the bill.

SEC. 9. INSPECTION OF ESTABLISHMENTS, ETC.

(a) IN GENERAL.-Forpurposes ofenforcing theprovisions ofthis Act, officers or employees duly designated by the Administratorare authorized- (1) to enter, at reasonabletimes, any establishmentor other lace where pesticidesor devicesareheld fordistributionor sale;and (2) to inspect and obtain samples of any pesticides or devices, packaged, labeled, and released for shipment, and samples ofany containersor labeling for suchpesticidesordevices. Beforeundertakingsuch inspection,the officers or employeesmustpresent to the owner, operator, or agent in charge of the establishmentor other placewherepesticidesordevicesareheld fordistribution orsale,appropri- atecredentialsandawrittenstatement asto the reason for theinspection, includinga statementas to whetheraviolationof the law is suspected.If
no violation is suspected, an alternate and sufficient reason shall be given in writing.Eachsuchinspectionshall be commenced andcompleted withreasonable promptness.If the officer oremployee obtainsany samples, priorto leaving thepremises,he shallgive to the owner,operator,oragent in charge a receiptdescribingthe samples obtainedand, if requested, a portion of each such sample equal in volume or weight to the portion retained.If an analysisismade ofsuch samples, a copy ofthe results of such analysis shall befurnished promptly to the owner, operator,or agentin charge.

(b) WARRANTS.-For purposes of enforcing the provisions of_this Act andupon a showing to an officer orcourt ofcompetentjurisdiction that there is reason to believe that the provisions of this Act have been violated, officers or employees duly designated by the Administratorare empoweredto obtainandto execute warrants authorizing- (1) entry forthepurposeofthis section; (2)inspectionandreproduction ofallrecordsshowingthequantity, date ofshipment, and the name ofconsignorand consigneeofany pesticideor devicefound in the establishmentwhich is adulterated, misbranded,not registered (in the case of a pesticide, or otherwise in violationofthisAct) andin the event ofthe inabilityofanyperson to produce records containing such information, all other records and information relating to such delivery, movement, or holdingof thepesticideor device;and

(3) the seizureofany pesticide ordevice which is in violationoj thisAct. Section 9(c) of the bill is compared with section 6c of existing law, supra.

Section 10 of the bill.'SEC. 10. PROTECTION OF TRADE SECRETS AND OTHER INFORMATION. 

### (a)IN GENERAL.-In

### submittingdatarequiredby thisAct, theappli- cantmay (1)clearly markanyportionsthereofwhich in his opinionare 'tradesecretsorcommercialor financialinformation,and(2) submit such markedmaterialseparately from other materialrequiredto be submitted underthisAct.

Compare subsection (b) with similar language in section 4c of existing law supra.

(b)DiscLosuRE.-Notwithstandingany otherprovision of this Act, the Administratorshall not make public information which contains

or relates to trade secrets or commercialorfinancialinformation obtained from a person andprivilegedor confidential, except that, when necessary to carry out the provisions of this Act, information relating toformulas ofproducts acquiredby authorizationofthis Act may be revealed to any Federalagencyconsulted andmay be revealedatapublic hearingorin findingsof fact issuedby theAdministrator. Section 11 of the bill.
SEC. 11. STANDARDS APPLICABLE TO PESTICIDEAPPLICATORS.



### (a)IN GENERAL.-No 

### regulationsprescribed by the-Administrator for carrying out the provisions of this Act shall require any private applicator to maintainanyrecordsor file anyreportsorotherdocuments. 

### (b)SEPARATE STANDARDS.-When 

### establishingor approvingstandards forlicensingorcertification,theAdministrator shallestablishseparate standards for commercialandprivateapplicators. Section 15(a) of the bill.

SEC. 

### 15. ADMINISTRATIVE PROCEDURE;JUDICIAL REVIEW.

(a) DISTRICT COURT REVIEW.-Except as is otherwise provided in this Act, Agency refusals to cancel or suspend registrationsor change classificationsnotfollowinga hearingand other finalAgency actionsnot 

### committed to Agency discretionby law arejudiciallyreviewable in the districtcourts.

For sections 15 (b), (c), and (d) of the bill, see section 4d, supra. Section 18 of the bill.

SEC. 17. EXEMPTION Or FEDERAL AGENCIES.

The Administrator may, at his discretion, exempt any Federal or 

### State agencyfrom anyprovision ofthis Act if he determines that such exemption would be consistentwith thepurposes ofthis Act andwould be in thepublic interest.

Section 18 ofthe bill.

SEC. 

### 18. DISPOSAL AND TRANSPORTATION.

(a) PROCEDURES.-TheAdministrator

### shall, after consultation

### with otherinterestedFederal agencies, establishproceduresandregulations for 

### the disposalor storage ofpackages and containersofpesticidesand for disposal or storage of excess amounts of suchpesticides, andaccept at convenientlocations forsafe disposalapesticidethe registrationofwhich is canceledunder section 6(c) if requested by the owner ofthepesticide.

### (b) ADVICE TO SECRETARY OF TRANSPORTATION.- 

### The Adreij. 

### istratorshallprovideadvice andassistanceto theSecretaryofTranspor. tation with respect to hisfunctions relating to the transportation o hazardousmaterials under the Department of Transportation Act (49 U.S.C.1657), the Transportation ofExplosivesAct (18 U.S.C.831-885), the Federal AviationAct of 1958 (49 U.S.C.1421-1430, 1472 H), and the HazardousCargoAct (46 U.S.C.170,

## 375, 416).

Section 19 of the bill.
SEC. 19. RESEARCH AND MONITORING.



### (a) RESEARCH.- The 

### Administrator shall undertake research,in. eludingresearch bygrantorcontractwith otherFederalagencies,univeri ties, or othersas may be necessaryto carryout thepurposes ofthisAct, and he shall give priority to research to develop biologicallyintegrated alternatives forpest control. The Administratorshall also take careto insurethat suchresearchdoes notduplicateresearchbeingundertakenby any otherFederalagency.

(b)NATIONAL MONITORING 

### PLAN.-The Administratorshall formu- late andperiodicallyrevise, in cooperationwith otherFederal,State,or localagencies,a national plan formonitoring pesticides. (c) MONITORING.- TheAdministrator shall undertake such monitoring 

### activities,includingbutnot limitedtomonitoringinair,soil,water,man, plants, andanimals,as may be necessary for the implementationofthis Act andofthe nationalpesticidemonitoringplan.Suchactivitesshallbe carriedout in cooperationwith otherFederal,State, andlocal agencies.



### Section 20of the bill.

SEC. 

### 20. SOLICITATION OF COMMENTS.



### (a) The Administrator, before publishing regulations under this Act, shallsolicitthe views ofthe SecretaryofAgriculture.

(b) In additionto any otherauthorityrelatingtopublichearingsand solicitationofviews, in connectionwith the suspensionorcancellationof
apesticideregistrationor any other actionsauthorized under thisAct, theAdministratormay, athisdiscretion,solicitthe views ofall interested persons,eitherorally or inwriting, andseek such advice from scientists, farmers,farm organizations,and other qualifiedpersons as he deems proper.

Section 22 of the bill.

SEC. 22. STATE COOPERATION, AID, AND TRAINING.

(a) COOPERATIVE AGREEMENTS.- 

### TheAdministratorisauthorizedto enter intocooperativeagreements 

### withStates- 

### (1) to delegateto any State the authorityto cooperate in the en- forcement oftheAct through the use ofitspersonnel orfacilities,to trainpersonnel ofthe State to cooperate in the enforcement ofthis Act, andto assist States in implementing cooperative enforcement programsthroughgrants-in-aid; and (2) to assistStateagenciesindevelopingandadministering State programsfor training and certification of applicators consistent with thestandardswhich heprescribes. (b) CONTRACTS FOR TRAINING.-In 

### addition, the Administrator is authorizedto enter into contracts with Federalor State agenciesfor thepurposeofencouragingthetrainingofcertifiedapplicators.(c) TheAdministratormay utilize the services ofthe CooperativeState Extension Servicesfor informing farmers of accepted uses and other regulationsmadepursuantto thisAct.

Section 23 of the bill.

SEc. 23. AUTHORITY 01"STATES.

(a) A State may regulatethe sale or use ofany pesticide or device in the State, butonly if and to the extent the regulationdoes notpermit any sale oruseprohibitedby thisAct;

(b) such Stateshall not impose or continuein effect any requirements forlabeling andpackagingin additionto ordifferent from those required pursuanttothisAct; and

(e) a State may provide registration for pesticidesformulatedfor distributionand use within thatState to meet specific local needs if that State is certifiedby the Administratoras capable of exercising adequate controls and if registration for such use hasnot previously been denied, disapproved,or canceledby the Administrator.Such registration shallbe deemedregistrationundersection3for allpurposesof thisAct, butshall authorize distribution and use only within such State and shall not be effective for more than 90 days if disapproved by the Administrator withinthatperiod.

FEDERAL HAZARDOUS SUBSTANCES ACT

* * * * * * *

DEFINITIONS

SEc.2. For the purposes of this Act- (a) * * *

* * * * * * * (f) The term "hazardous substance" means: 1. * * *

* * * * *
2. The term "hazardous substance" shall not apply to Feconomic poisons] pesticides subject to the Federal Insecticide, Fungicide, and Rodenticide Act, nor to foods, drugs, and cosmetics subject to the Federal Food, Drug, and Cosmetic Act, nor to substances intended for use as fuels when stored in containers and used in the heating, cooking, or refrigeration system of a house, but such term shall apply to any article which is not itself [an economic poison] a pesticide within the meaning of the Federal Insecticide, Fungicide, and Rodenticide Act but which is

a hazardous substance within the meaning of subparagraph 1 of this paragraph by reason of bearing or containing such [an economic poison] apesticide.

* * * * * * *

### POISON PREVENTION PACKAGING ACT

* * N' * * * *



### SEC. 2. For the purpose of thisAct- (1) The term "Secretary" means the Secretary of Health, Educa. tion, and Welfare.

(2) The term "household substance" means any substance which is customarily produced or distributed for sale for consumption or use,
or customarily stored, by individuals in or about the household and which is- (A) a hazardous substance as that term is defined in section 2(f) oftheFederal Hazardous Substances Act (15 U.S.C. 1261());

(B) [an economic poison] apesticideas that term isdefiledin section 2a of the Federal Insecticide, Fungicide, and Rodenticide Act (7U.S.C. 135(a));

* * * * * * *



### FEDERAL FOOD, DRUG, AND COSMETIC ACT

* * * * * * S



### CHAPTER II-DEFINITIONS

SEC. 201. For the purposes of thisAct- (a) * * *

* * * * * * * 

### (q) The term "pesticide chemical" means any substance which, alone, in chemical combination or in formulation with one or more other substances, is [an "economic poison"] a "pesticide" withinthe meaning of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C., secs. 135-135k) is now in force or as hereafter amended, and which isused in the production, storage, or transportation ofraw agricultural commodities.

* * * * *' * *



### CHAPTER IV-FOOD

TOLERANCES FOR PESTICIDE CHEMICALS IN OR ON RAW AGRICULTURAL
COMMODITIES SEC. 

### 408. (a) * * *

* * * * * * *
(d)(1) Any person who has registered, or who has submitted an 

### application for the registration of [an economic poison] a pesticide tinder the Federal Insecticide, Fungicide, and Rodenticide Act may file with the Secretary of Health, Education, and Welfare, a petition proposing the issuance of a regulation establishing a tolerance for a pesticide chemical which constitutes, or is an ingredient of such [economic poison] pesticide, or exempting the pesticide chemical from the requirement of a tolerance. The petition shall contain data showing-

### (A) the name, chemical identity, and composition of the pesticide chemical: * * *

• * a * * * * 

### (e)The Secretary may at any time, upon his own initiative or upon the request of any interested person, propose the issuance of a regulation establishing a tolerance for a pesticide chemical or exempting itfrom the necessity of a tolerance. Thirty days after publication ef such a proposal, the Secretary may by order publish a regulation based upon the proposalwhich shall become effective upon publication unless within such thirty-day period a person who has registered, or who has submitted an application for the registrationof, [an economic poison] a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act containing the pesticide chemical named in the proposal, requests that the proposal be referred to an advisory com- mittee. In the event of such a request, the Secretary shall forthwith submit theproposal and other relevant data before him toan advisory committee to be appointed in accordance with subsection (g) of this section. As soon as practicable after such referral, but not later than sixty days thereafter, unless extended as hereinafter provided, the committee shall, after independent study of the data submitted to it by the Secretary and other data before it, certify to the Secretary a report and recommendations on theproposal together with all underlyingdata and astatement of thereasons orbasisfor therecommendations. The sixty-day period provided for herein may be extended by the advisory committee for an additional thirty days if the advisory committee deems this necessary. Within thirty days after such certification, the Secretary may, after giving due consideration to all data before him, including such report, recommendations, underlying data and statement, by order publish a regulation establishing a tolerance for the pesticide chemical named in the proposal or exempting it from the necessity of a tolerance which shall become effective upon publication. Regulations issued under this subsection shall upon publication be subject to paragraph (5) or subsection (d).

* * * * * * * 

### (1)The Secretary of Agriculture, upon request of any person who has registered, or who has submitted an application for the registration of, [aneconomic poison] apesticideunder the Federal Insecticide, Fungicide, and Rodenticide Act, and whose request is accompanied by a copy of a petition filed by such person under subsection (d) (1) withrespect to apesticide chemical which constitutes, or is an ingredient of, such [economic poison] pesticide, shall, within thirty days or within sixtydays ifupon notice prior to the termination ofsuch thirty days the Secretary deems it necessary to postpone action for such period, on the basis of data before him, either- (1) certify to the Secretary of Health, Education, and Welfare that such pesticide chemical is useful for the purpose for which a tolerance or exemption is sought; or

(2)notify the person requesting thecertification ofhis proposal tocertify that the pesticide chemical does not appear tobe useful for the purpose for which a tolerance or exemption is sought, or appears to be useful for only some of the purposes for which a tolerance or exemption issought.

### 74

In the event that the Secretary of Agriculture takes the action described in clause (2) of the preceding sentence, the person requestiing the certification, within one week after receiving the proposed certiication, may either (A) request the Secretary of Agriculture to certify to the Secretary of Health, Education, andWelfare on the basisofthe proposed certification; (B)request ahearing onthe proposed certifies. tion or theparts thereofobjected to;or (C) request bothsuch certification and such hearing. Ifno such actionistaken, the Secretary mayby order make the certification as proposed. In the event that the action described in clause (A) or (C) taken, the Secretary shall by order make the certification as proposed with respect to such parts thereof

as are requested. In the event a hearing is requested, the Secretary of Agriculture shall provide opportunity for a prompt hearing. The certification oftheSecretary ofAgriculture asthe result ofsuch hearing shall be made byorder and shall be based only on substantial evidence of record at the hearing and shall set forth detailed findings of fact. In no event shall the time elapsing between the making of a request for a certification under this subsection and final certification by the Secretary of Agriculture exceed one hundred and sixty days. The Secretary shall submit to the Secretary of Health, Education, and Welfare with any certification of usefulness under this subsection an opinion, based on the data before him, whether the tolerance or exemption proposed by the petitioner reasonably reflects the amount of residue likely to result when the pesticide chemical is used inthe
manner proposed for the purpose for which the certification is made. The Secretary of Agriculture, after due notice and opportunity for public hearing, is authorized to promulgate rules and regulations for carrying out the provisions of this subsection.

* * * * * C *92d Congress, 2d Session Senate Report 92-838 (Part II)



## PROTECTION OF MAN AND THE ENVIRONMENT

SUPPLEMENTAL REPORT

OFTHE


## COMMITTEE ON AGRICULTURE AND

FORESTRY

ON


## H.R. 10729

FEDERAL ENVIRONMENTAL
PESTICIDE CONTROL ACT OF 1972

OCTOBER 3, 1972.-Ordered to be printed

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON

- 1972 3-010 0 92d Congress, 2d Session Senate Report 92-838 (Part 11)

### FOREWORD

The Committee on Agriculture and Forestry over a period of about 16 months studied a number of bills and coininittee prints and hundreds of amendments dealing with pesticide control in a manner designed to protect man and the environment. On one occasion, 70 wit-
nesses were heard; on another 89 witnesses were heard. In every
case all witnesses were heard who desired tobe heard. On June 7 this year the committee ordered H.R. 10729, the Federal Environmental Pesticide Control Act of 1972, reported to the Senate and it was re- ported the same day and referred to the Committee on Commerce. On June 15 and June 19, 1972, the Committee on Commerce held hearings. On June 23 the Committee on Commerce ordered the bill reported to the Senate and on July 19, 1972 the Committee on Com-
mercereported thebill tothe Senate.

The Committee on Commerce recommended 65 amendments divided into 15 groups. Of these 15 groups, 12 were substantially identical to amendments carefully considered and rejected by the Committee on Agriculture and Forestry, I (Amendment No. 3) was an ambiguous modification of an amendment which had been similarly rejected, 1 (Amendment No. 10) was designed to vitiate language contained in the House Agriculture and Senate Agriculture and Forestry Committee reports, and 1 (Amendment No. 15) would restrict appropriations to amounts less than required to carry out existing law with no money for the new activities provided by the bill. This supplemental report explains the opposition of the Committee on Agriculture and Forestry toeach and every amendment proposed by the Committee on Commerce. (Ifl)(

I

## CONTENTS

page In Brief

- 1 Summary of comments on Commerce Committee amendments..- Difficulties involved in consideration of the bill 5 Comments on: Amendment 1 (registration criteria) 7 Amendment 2 (use of test data)----------------------------------- 11 Amendment 3 (advisory committees)

------------------------------- 21 Amendment 4 penaltiess)

----------------------------------------- 22 Amendment 5 (exports)

------------------------------------------ 24 Amendment 6 (confidentiality)

- 34 Amendment 7 (citizens suits) 39 Amendment 8 (hearing structure) 42 Amendment 9 (inclusion of farmworkers in term "man")

......... 43 Amendment 10 (authority of local governments to regulate the use of

pesticides) 46 Amendment 11 (suspension) 47 Amendment 12 (authority of States to register pesticides)--

- 51 Views of Governor Burns of Hawaii,Federated Pecan Growers of

the United States, Dr.Donald R. Isleib, scientific adviser to the director, Michigan Department of Agriculture, and Mr. Errett Deck, assistant director, Washington Department of Agriculture 52 Amendment 13 (recordkeeping by private applicators) 57 Amendment 14 (right of entry) -- 58 Views of Senator Sam J. Ervin, Jr., American Civil Liberties

Union, and the Congressional Research Service. 59 Amendment 15 (specific authorization) 64 Technical corrections 66 Developments as a result of the preparation of this report. 66 Explanation of compromise amendment in the nature of a substitute

.... 69

# I

### 92D CONGRESS 

### SENATE Part II 

### 2dSession REPORT 

### 92-838

PROTECTION OF MAN AND THE ENVIRONMENT

OCTOBER 3, 1972.-Ordered to be printed



### Mr. ALLEN, from the Committee on Agriculture and Forestry, submitted the following

SUPPLEMENTAL REPORT

[To accompany H.R. 10729]



### The Committee on Agriculture andForestry, to which was referred the bill (H.R. 10729) to amend the Federal Insecticide, Fungicide, and Rodenticide Act, and for other purposes, having considered the same, and having heretofore reported favorably thereon with an amendment, now files this supplemental report to set out the reasons for its opposition to the amendments to its amendment which have been recommended by the Committee on Commerce.

IN BRIEF 

### This committeeis opposed tothe amendments proposed bythe Com-
merceCommittee becausethey would1. Give Federal agents for the purpose of enforcing the act the rightto enter private homes and other places where pesticides
or devices are held or used without a warrant and without any suspicion that a crime has been committed (Amendment 14) ;

2. Restrict appropriations to carry out this law to an amount clearlybelow whatisneeded (Amendment 15) ;

3. Visit unnecessary losses on such American industries as Hawaiian sugar producers; Georgia pecan growers; Michigan producers of Christmas trees and strawberries; Washington oyster producers; and onthe consumers served bythese industries by limiting State registration to meet peculiar 8tate needs to emer- gency situations (Amendment 12);

4. Discourage the development of new and safer pesticides by denying private researchers exclusive rights to the fruits oftheir labor (Amendment 2) ;5. Increase the maximum civil penalty for the least serious offense above that permitted for clearly more serious offenses (Amendment 4) ;

6. Require the expenditure of public and private funds for the dissemination to foreign governments of information which could be misleading and dangerous (Amendment 5) ;

7. Provide an empty form of justice under which one party is prohibited from offeringevidence (Amendment 11) ;

8. Adopt language which EPA had advised would "literally"
mean that "no pesticide would be registered" (Amendment 1);

9. Replace a conflict of interest rule which the Commerce Cominittee recognizes as "admirable policy" with one which is clearly ambiguous (Amenidment 3) ;

10. Strike out the requirement that foreign governments be notified when a pesticide isbanned in the United States (Amend- ment 5):

11. Deny the Adniinistrator information essential to hisdecision
as to whether a pesticide is safe and efficaceous (Amendment 6) ;

12. Possibly weigh registration decisions in favor of DDT as opposed to methyl parathion (Amendment 9); and

13. Introduce confisiig surplus language and numerous errors into this law, which will tend to cripple its enforcement.

SUMIIARY OF COMMENTS OF THE COMMITTEE ON AGRICULTURE AND

FORESTRY CONCERNING THE AMENDMENTS PROPOSED BY TILE COMMITTEE ON COMMERCE Since the original report ofthis committee did iot express its views with respect to the hundreds of amendments that were necessarily re- jected by it, this supplemental report isbeing made so that the Senate may have the views and recommendations of this committee on the amendments which were rejected by it and subsequently recommended by the Committee on Commerce. :Set out below is a brief statement concerning each of the 15 groups of amendments recommended by the Commerce Committee, showing the reasons for the rejection of it by this Comittee. A more detailed explanation of each amendment is set out thereafter in this report. In discussing each ofthese groups,this report uses the numbering system ofthe Coimmerce Committee report.

Cornmer-eOonnittee groupt ofamentonenms Position of Co-ttttee ot Agrtctuimre cod Foresty number Registration criteria. This series of amendments makes nonsubstantive language changes in the bill that are incompatible with other provisions of the bill and introduces technical er- rors into the bill. The Committeeon Agriculture and Forestry has no objection to language changes which do not damage the hill and suggests alternative amendments which would adopt words apparently preferred by the Committee on CoilmerCe Without doingviolence to thIe bill 1 ['s- of test data. This alm iuthient strikes out a provision giving mm1 applicant exclusive rights in the test data developed and sihubitted by him. The ('oummaitt-m. itn Agricultmmeand Forstr" e s smlives that private research will le emnouaraged and bette maid saferipestitides will le developed if private re- searchieris Ire protected iii thue fiuits Oftheir labors. The Agri 'mitu'e (Committee mmvisioll woultdI not l)rechlude other e-Commerce Committee Group of amendments Position of Committee onAgriculture and Forestry number searchers from making their own similar tests or sharing by agreement in the costs and results ofresearch done by others- 2 Advisory committees. This amendment provides for a weak and

ambiguous conflict ofinterest prohibition and does not appear to accomplish any reasonable objective-------------------- 3 Penalties. This amendment provides for imposition of a maximum civil penalty ($10,000) for a violation by a householder

orother person not inthe pesticide business improperly using the safest pesticide which is 10 times as great as the maximum fine ($1,000) which could be imposed in criminal

case against the same person, and twice as great as the civil penalty ($5,000) which could be imposed on a manufacturer and distributor of a dangerous unregistered pesticide, or on a professional applicator spreading the most dangerous kind of pesticide by airplane --------------------------------- 4 Exports. This amendment is awasteful and useless "junk mail"

provision. It provides for sending possibly dangerous and misleading information to every country inthe world without any request therefor or indication of interest therein. It 

### evinces a "big brother" attitude and a belief that other soy- ereign nations can adequately governtheir countries only with

ou elp. Most important it (1) deletes the provision of the AgriculIture Committee amendment which would require notice toforeign countries whenever a pesticide has its registration cancelled in the United States, and (2) prohibits the export of any pesticide unless the Administrator determines that its export will not result in unreasonable adverse effects

on the environment of the United States. This preclearance requirement would make it difficult to sell completely harmless pesticides forexport ------------------------- 5 Confidentiality. While the Commerce Committee report uses

the title "Confidentiality" for this amendment, the amend- ment is actually more serious than that. It denies the Administrator the authority to obtain the information that is probably the most essential to proper administration of theact, to wit,the tests and results upon which the claims arebased. He would be restricted in the important decision as to registration and classification of pesticides to those tests which the applicant chose to offer. This amendment would hamper administration in several other ways and remove some of the protection accorded trade secrets ------------------------ 6 Citizens suits. This amendment provides for citizens suits for

injunctions, attorney and expert witness fees, and other costs oflitigation. The Committee on Agriculture and Forestry believes that laws should be administered by the executive branch of the government. This amendment appears to have technical defects --- ---- 

### 7 Hearing structure. This amendment does not appear to do any

good, and there isnoneed for it. It would give to theAdministrator unwarranted authority to deny to a registrant the opportunity for a full hearing prior to cancellation of his registration

- 84

Commerce Comsmittee Group o merente Position of Committee on Agriculture andForestry number Inclusion of farmworkers in term "man". This amendment specifies that the term "man" shall include farmworkers and others. This part ofthe amendment has no substantive effect, except that it possibly might be construed as requiring the
Administrator to register a pesticide (such as DI)T) which involves less risk for farmworkers in preference to one (such

as methyl parathion) which involves more risk for farmworkers. This amendment would also prohibit the Administrator from relying on tests conducted in violation of local law (say on Sunday) or accidental and other "involuntary"
tests which show a pesticide to be highly dangerous (or safe) in denying (or granting) registration-------------------- 9 Authority of local governments toregulate the useofpesticides.

This amendment would permit local governments in addition
to the Federal and State governments to regulate the sale or

use of a pesticide. The Committee on Agriculture and Forestry feltthat regulation bythe Federal Government and the 50 States should be sufficient and should preempt thefield--- 10 Suspension. This amendment would deny a registrant the right

to an administrative hearing in cases where there is no purpose to be served by such denial and where EPA has advised the Agriculture Committee it feels there should be such a right. It provides for a type of judicial review which denies

a registrant the opportunity to present evidence in court --- 11 Authority of States to register pesticides. This amendment

would impose needless loss on American industries and their

consumers by denying them the use of pesticides they may have been using for years with the utmost safety, simply because their pesticide usage does not warrant the cost ofregular Federal registration of the pesticide for that particular usage --- - ------- 12 Recordkeeping by private applicators.This amendment authorizesthe Administrator to require farmers, farmworkers, and other private applicators to maintain records and file reports. The Committee on Agriculture and Forestry believes that such recordkeeping and reporting would constitute an undueburden inview ofthe minor benefits, if any that might result from it

------------------------------------------ 13 Right of entry. This amendment would authorize Federal

agents to enter private homes and other places where pesticides or devices are kept or used without awarrant and without any suspicion that any law had been violated. The Committee on Agriculture and Forestry feels that this authority is far broader than necessary to protect the public and that the amendment is unconstitutional

- 14 Specific authorization. This amendment would limit appropriations for the Federal Insecticide, Fungicide, and Rodenticide Act to not to exceed $15,000,000 for fiscal 1973, $25,000,000 for fiscal 1974, and $35,000,000 for fiscal 1975. The cost of administering this act in the fiscal year just closed is estimated by EPA at $18.3 million. With the new responsibilities imposed by the bill, EPA estimates the necessary cost of administering the act at $35 million for fiscal 1973, $44 million for fiscal 1974. and $55 million for fiscal 1975 15DIFFICULTIES INVOLVED IN CONSIDERATION OF THE BILL

H.R. 10729 is an amendment to the Federal Insecticide, Fungicide, and Rodenticide Act. That entire act was enacted in 1947 and Senate 

### consideration of ittookjust over 1month. Thebill which was enacted tobecome that act was referred to the Committee on Agriculture and Forestry on May 13, 1947. It was reported to the Senate on May 26, 

### 1947,was passed bytheSenate on June 16, 1947, andbecame public law

on June 25, 1947. That law has served the country well with minor amendments over a span of25years. Under it, an order banning DDT has been issued, public spirited citizens have had their days in court, and much hasbeen done to protect the environment. The United States has produced food and other agricultural commodities in abundance tofeed andclotheitselfandmuch oftheworld.

S.

660 was referred to this committee on February 8, 1971; S. 745

was referred tothis committee on February 10, 1971. Thebillto which this report relates, H.R. 10729, was referred to this committee on November 19, 1971. All ofthese billswould amend the Federal Insecticide,Fungicide, and Rodenticide Act. On December 16, 1971, thechair-
man of the Committee on Commerce wrote to the chairman of this committee acknowledging the paramount interest of this committee but expressing the feeling that the Commerce Committee had a subordinate interest because of its statutory jurisdiction over "fisheries and wildlife, including research ***and conservation." He suggested re-referral ofthe bill tothe Committee on Commerce if and whenthis committee chose to report a pesticide bill. The chairman of this com- mitteereplied that if atthe time this committee reported such a bill it appeared that the Commerce Committee had any legitimate interest in the legislation, he would have no objection to it being rereferred. The correspondence referred tois as follows: DECEMBER 

### 16, 1971.
Hon. HERiMANE. TALMADGE, Chairman, Agriculture andForestryCommittee, U.S. Senate, Washington, D.C.

DRAR SENATOR TALIADoE: I am aware 

### that yourcommittee hasbeen giving very thoughtful and thorough consideration to the pesticide leislation now before the Congress. Although the Agriculture Commttee's interest in this legislation is certainly paramount, it is my feeling that the Commerce Committee also has a legitimate, if subordinate, jurisdictional interest. Our statutory jurisdiction over "fish eries and wildlife, including research * * * 

### and conservation" has provided a basis for numerous hearings on effects of pesticides on the environment and for consideration of the Pesticides Research Act of 1958. That act directed the Secretary of the Interior to conduct researchontheimpact ofpesticides inorder toprotect fish and wildlife

resources frompossible adverse effects.

Proper exercise of our jurisdictional responsibilities over those re
### sources would appear to me to justify subsequent consideration by the Commerce Committee ofthe pesticide legislation now beforeyou. If you are in agreement, our committee would appreciate receiving notification ifand whenyou choose toreport a pesticide billnext year. I would further appreciate your assurance that, if we request rereferral ofthe bill atthat time, you would have no objection. I wouldbe willing to abide by any time limit for our consideration which

you might find appropriate.

With all good wishes for theholiday season. Sincerely yours, WARREN 

### G. MAGNUSON, 

### Chairman.

DECEMBER 21,1971.

Hon. WARREN G. MAGNUSON, Chairman,CommitteeonCommerce, U.S.Senate, lVashington,D.C.

DEAR MAGGm: Thank you for your letter of December 16 with respect to pesticide legislation. This committee will probably consider
and act on S. 1794, which provides for research into integrated
methods of pest control, at our next regular meeting in January, but

I do not believe that you have any interest in this bill. I understand
that your letter relates to S. 660, S. 745, and H.R. 10729, each ofwhich
would generally revisethe Federal Insecticide, Fungicide and Rodenticide Act, and I am asking thecommittee staff to notifythe Commerce Committee staff whenever a bill similar to any of the billsjust mentioned is reported. If, at,that time, it appears that your committeehas

any legitimate interest in this legislation, I would have no objection

to its being rereferred to your committee. However, since this committee has not yet fully considered this legislation, it is difficult to determine what form it will take and therefore difficult to determine whether it will involve matters in which yourcommittee has an interest. After the bill is reported, we will be able to determine the nature of the interest of your committee, if any, and an appropriate time limitation for consideration by your committee.

With best wishes and warmest personal regards, I am Sincerely, HERMAN E. TALMADGE, Chairman.

This committee conducted extensive hearings in 1971 andin 1972 on these bills. All witnesses who desiredto be heard were heard, hundreds of amendments were offered, and each amendment was carefully considered. Senators Hart and Nelson proposed a series of 11 amendments and because of theinterest in these amendments,this committee
gave them particularly extensive and careful consideration and asked the Environmental Protection Agency to provide the committee with its comments in writing on each of these amendments. Senator Nelson'sprepared statement, whichcontains hisexplanation oftheamendments and the amendments themselves, are set,out beginning at page 75 of this committee's printed hearings on H.R. 10729. The comments ofthe Environmental Protection Agency on these amendments begin
at page 82 of those hearings. All of these amendments received the
most careful consideration possible by this committee.

This committee worked very closely with the Environmental Protection Agency and either adopted or worked out satisfactory alternatives for most of the amendments proposed by that Agency.

In accordance with the exchange of correspondence between the chairmen ofthis committee and the Committee on Commerce, this bill

wvas referred to the Committee on Commerce on June 7,the day it was reported by this committee to the Senate. On July 19, 1972, the bill

### was reported by the Committee on Commerce to the Senate with its recommendation for the adoption of approximately 65 amendments 

### which are grouped by its report into 15 series of amendments. These amendments were generally similar to amendments which had been proposed by Senators Hart and Nelson or the Environmental Protection Agency before this committee and had been rejected by this committee. None of the amendments recommended by the Committee

on Commerce deals specifically with "fisheries and wildlife, including research *** 

### and conservation," nor are any of them particularly related to that subject. Rather, they deal with farmworkers, appropriation authorizations to carry out the act, right ofentry, recordkeeping by farmers andother private applicators,hearing structure, and other matters which fall within the general jurisdiction of the Committee

on Agriculture and Forestry over this legislation. The paragraph headings of the report by the Committee on Commerce show the 15

areas covered by their amendments. Certain of the amendments recommended by the Committee on Commerce present substantive questions which ought to have the most careful study before they are decided by the Senate, more study than it has been possible to give them to date and more than can be -iven them as adjournment approaches. Certain of them represent changes in language which 

### make no substantive change in the bill but do introduce technical defects. Since &mendmentsofthis type arethe most difficultto explain

or oppose, this committee in this report will discuss these amendments 

### at considerable length for those who wish to go into detail.

COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRY ON

AMENDMENT NO. 1 OF THE COMMITTEE ON COMMERCE (REGISTRATION CRITERIA )

In brief, this amendment rold have no discerible substantive effect, exceptto introduceerrorsinto the bill.

This amendment would- (1) substitute the defined term "unreasonable adverse effects

on the environment" for the similarly defined term "substantial adverse effects on the environment" (page 77, lines 5 through 17 and elsewhere);

(2) strike out the direction that "The Administrator shall not make lack of essentiality a criterion for denying registration of
any pesticide" (page 81, lines 13 thru 15) ; and

(3) make other nonsubstantive changes in language. This amendment makes no change insubstance. Since "unreasonable adverse effects on the environment", as defined, would have the

same meaning as "substantial adverse effects on the environment", it makes no difference which term is used. The criteria for registration of pesticides is clearly spelled out in clauses (A), (B), and (C) of section 3(c) (5). Lack ofessentiality isnot one ofthe criteria and the Administrator has no authority to make it so without regard to whether thelanguage proposed to be strickenis stricken.

With hundreds of amendments offered to a very technical bill, making language changes that arc neither substantive nor technically
necessary is likely to result in errors. The Committee on Agriculture and Forestry consequently rejected an earlier version of this amend-

### ment. Some of the errors which wouldbe introduced intothe billby the adoption ofthecurrentversion are asfollows: C1) If the word "unreasonable" is to be substituted for "substantial" in the defined term, the substitution should be made in each place the defined term appears. The amendment fails to make such substitution on page 63 in the line beginning "(bb) "

.



### (2) On page 77, line 13, the word "unreasonable" should be inserted before the word "risk." The amendment defines "unreasonable" adverse effects as "any risk." While it directs that costsand benefits betaken into account, "any risk"remains a risk
no matter what thebenefit to be derived fromthe action. As EPA commented inconnection with a similaramendment (1013, below) "ifread literally, no pesticidewould beregistered, because allpresent some risk." This completely excludes the effect of weighing benefits against risks, and defeats the purpose of the Committee
on Commerce to"require thatEPA make a full weighing ofcom- peting interests in making itsdetermination." The Committee on Agriculture and Forestry does not know how to interpret the action of the Committee on Commerce in adopting the exact words which EPA had said would literally prohibit registration of any pesticide. If "unreasonable" were inserted before "risk,"
an "unreasonable" adverse effect would be a risk that was unrea- sonable, takingcostsandbenefitsinto account.

(3) The bill as passed bythe House contains two defined terms which complement each other,to wit,"protect health andenvironment" and "substantial adverse effects on the environment." The former is defined as protection against the latter. In addition, it is somewhatredundant in providing for protection against "any injury to man" and for "taking into account" certain factors, both of which are already covered in the definition of "substantial adverse effects on theenvironment." The Committee on Agri- culture andForestry did not recommend changing the House bill in this regard because, while redundant, both definitions were consistent. The amendment ofthe Committee on Commerce,however, introduces a note of inconsistency between these definitions which, because of their importance in the misbranding, registra- tion, and classification procedure, might cause serious difficulties. Under the Commerce Committee amendment, (i) the term "pro- tecthealth and environment" would mean protection against "any injury to man" and against "any risk of injury to man" as that phrase is contained in the proposed definition of "unreasonable adverse effects on the environment"; and (ii) a different list of factors would be required to be taken into consideration in determining "unreasonable adverse effects onenvironmental values"
as that term is used in the definition of "protect health and en- vironment." The term "protect health and environment" could be made consistent with the proposed term "unreasonable adverse effects on the environment," by striking lines 18 through 21 on page 76 and inserting "unreasonable adverse effects on the en- vironment." Set out below are the comments of the Environmental Protection Agency on the similar amendment which was rejected by the Committee on Agriculture and Forestry:1. AMENDMENT NO. 101 

### This amendment would add a new definition to the definitions section of the bill. The proposal is to add a term: "unreasonable adverse effects on the environment." In con- junction with this newdefinition, the same amendment would changethe criteria forregistration and classification.Atpresent the Administrator is directed to register a pesticide if it will perform its impact without "substantial adverse effects onthe environment." He shall not, moreover, make any lack of essentiality a criterion for denying registration of any pesticide. Amendment No. 1012 would make the pivotal criterion for registration the new term, "unreasonable ad-
verse effects on the environment" and strike those references in

section 3(b) (5) toessentiality. The new term defined by the amendment does not,in our view, differ in substance from the present definition of "substantial adverse effects on the environment"now found insec- tion 2(bb). The present subsection (bb) refers to "injury to
man or substantial adverse effects on environmental values, taking into account the public interest and benefits.

. 

### ." The proposed subsection (dd) refers to "any risk to man or the environment, taking into account

. . ." We do not believe the 

### difference in language between the two sections amounts to
one of substance. Both appear to adopt the present risk/ benefits approach of the existing FIFRA and the Agency's present body of law. The difference between "any risk" and "any injury or substantial adverse effects" is slight. Perhaps, if read literally, no pesticide -would be registered because all present some "risk." In applying a section like that proposed, we would in practice look at the likelihood of injury and the anticipated benefits, which is what subsection (bb) ofH.R. 10729seeksto achieve.

We note itmightbe desirable to strike section 2(bb) ofthe present bill, in the event Amendment No. 1012 is accepted. This would add clarity to the drafting in H.R. 10729. Section 3(d) (1) (C) makes "substantial adverse effects" onthe environment" the linchpin of classification as well as regis- ,tration. (Obviously thetermmeans somethingdifferentin sec- tion 3(d) (1) (C) Trom whatit means in section 3(b) (5). If risks in use outweigh benefits, a product will not be registered under any classification. Where, on the other hand, a risk isapparent butacceptable because ofcountermaking benefits,the use based on theadverse impact will be restricted to minimize those risks).

Turning to that partofthe amendment which would strike the reference to nonessentiality as u criterion for registration, webelievethe presentlanguage ofsection3(b) ispreferable since it states agency policy. Where two products pose the same degree of risk and are equally necessary and effective, one should not be registered in preference to the other. Of course, where the same control can be achieved moresafely than with a product which is being examined, thedefinition of "substantial adverse effects" in section 2(bb) would itselfmandate consideration ofthe alternative.
The report ofthe Committee on Commerce at page 10, stated:
Under the definition of "unreasonable adverse effects on the environment" adopted by the Committee on Commerce, thebill on its face would require that EPAmake a full weighing of competing interests in making its determinations. Thus, it is intended that any adverse effect ought not to be tolerated unless there are overriding benefits from the useof

a pesticide. If the objective of the Committee on Commerce is as described by it in the language just quoted, and if the Committee on Commerce prefers the term "unreasonable" to "substantial" as the governing criterion, its objectives could be easily accomplished without doing substantial injury to the bill by redefining "substantial adverse effects

on theenvironment" to mean any "unreasonable" risk, and bymaking the corresponding necessary change inthedefinition of"protect health and environment" so that those terms would be defined as follows: (bb) Substantial Adverse Effects on the Environment.- The term 'substantial adverse effects on the environment'

means any unreasonable risk to man or the environment, taking into accomt theeconomic, social, and environmental costs and benefits ofthe use of anypesticide.

(x) Protect Health and theEnvironment.-The term 'pro- tect health and the environment' and 'protection of health and the environment' means protection against substantial adverse effectson theenvironment. This would avoid thenecessity of making numerous changes through- outthebill,which mightresult inerrorsinother provisions.

The language suggested above does not include the phrase "including the availability of alternative means ofpest control" because the balancing of benefit against risk is supposed to take every relevant factor that the Administrator can conceive of into account. The question he must decide is "Is it better for man and the environment to register this pesticide, or is it better that this pesticide be banned?" He must consider hazards to farmworkers, hazards to birds and animals and children yet unborn. He must consider the need for food and clothing and forest products, forest and grassland cover to keep the rain where itfalls, prevent floods, provide clear water. He must consider aesthetic values, the beauty and inspiration of nature, the comfort and health ofman. All these factors he must consider, giving each its due. No one should be given undue consideration, no one should be singled out for special mention, no one should be considered

a "vital" criterion.

For each pesticide the Administrator must ask the same question. There is no difference in this respect between general and restricted

use pesticides. On a general use pesticide the restrictions that must be complied with are on the labeling. On a restricted use pesticide the restrictions are provided by regulation. In each case the Administra- tor must take into account all relevant factors and decide whether it is better for nian and the environment that this product be registered.With respect to its amendment on page 81, lines 13 thru 15, striking "The Administrator shall not make any lack ofessentiality a criterion for denying registration of a pesticide," the report of the Committee

on Commerce statesatpage 11, The "doctrine ofessentiality" has many meanings to many people. To some,it would forbid theregistration ofany pesticide if there exists an alternative which is just as safe and effective as that pesticide-since under those circumstances the pesticide is not "essential" for the well-being of society. Under another reading, the doctrine merely mandates consideration ofthe availability of less hazardous substitutes as
one ofthe interests to be balanced in determining whether a consideration (sic) 

### should be registered. If thefirstof these readingswere accepted universally,the committee would be trilling. towipe out the doctrineandto accepttheAgriculture Committee's languagewhich would appearto dojust that. If "pesticideA" and "pesticideB" areequally safe a'ndcffective it would be unfair to registerone in preference to the otherandabsurdto rejectbothon thegrounds thatneitheris "essential".Yet, since the second reading has been a popular one, and since the committee supports the doctrine as defined umder that reading, the committee regards language which would reject the doctrine outright as dangerous. If "pesticide A" is safer than "pesticide B", this is certainly a relevantconsideration in the evaluation of an application for the registration of "B". (italics added)

Thesentence proposed tobe strickenby the Commerce Committeedid not originate with the Agriculture Committee, but is contained in the House bill. Since it was in accord with agency policy, and since its deletion would make no substantive change but might create the fear among thosewho accept the "first reading" that some change in registration criteria would result, the Committee on Agriculture and Forestry didnot recommend its deletion.

The Committee on Commerce would thus give reassurance to those who accept the "second reading". while the Committee on Agriculture would reassure those who accept the "first reading". The two

arebyno means incompatible, and there would appear tobe no reason why both groups on this very controversial matter should not be reassured by substituting the following for the sentence proposed to be stricken bythe Commerce Committee: "Where twopesticides meetthe requirements ofthis paragraph, one should not beregistered inpreference tothe other." This would be completely in accord with the policy ofEPA andboth committees.

COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRY ON

AMENDMENT NO. 2 OF THE COMMITTEE ON COMMERCE (USE OF TEST DATA)

In brief, this amendment would discourageresearchinto new and saferpesticides,by making thefruits of such researchimmediately availableto competitors.

# 121

This amendment (which strikes language on page 79, lines 2 through 6) would delete a provision prohibiting data submitted in support of one application for pesticide registration from being considered without theconsentofthe applicantinsupportof any other application for registration. The provision it would strike does not prevent other applicants from developing their own data and obtaining registration on the basisof that data, but it does assure each appllicant ofexclusive rights in the testdata which are the fruits ofhis labor. It should be noted that this provision prohibits consideration ofsuch data bytheAdministrator "in support" ofanother application. There isnothing to prevent useof such data in evaluating other test data ordenying another application.

The purpose oftheprovision proposed to be deletedis togive manufacturers an incentive to undertake the research necessary to develop better and safer pesticides. The costsoftesting a productto determine the pests for which it is effective, the commodities on which is can safely be used, and the proper method of application may be very great. If the product isnot patentable or if the patent protection has expired, there is nothing to prevent a competitor from registering a similar product. Under such circumstances, the first applicant has no opportunity to recoverhis research costs and little incentive for undertaking that research. The provision proposed to be stricken by the Commerce Committee amendment is designed to providethe necessary incentive for the production of safer and better pesticides to protect health and theenvironment.

The Commerce Committee says at page 12 ofitsreport: The prime reason stated for this provision in the Agricul- ture Committee bill isthat without it the pesticides industry will lack incentives to develop new pesticides. Yet, byrequiring manufacturers to duplicate test results, portions of the money now spent on developing new pesticides will un- doubtedly be diverted to perform such duplicative testing. Consequently, this provision could stifle the very incentives it seeks to achieve. The Committee on Agriculture and Forestry does not believe that there will be any great diversion of funds to duplicate testing. Rather this provision is likely to result in equitable sharing of research costs. There would belittle reason for duplicate testingif a second registrant could share in the test data ofthe first by paying part ofthe cost. And there would be little reason for the first registrant not recouping a partofhis costin this manner, since if le does not the second registrant

can do his own testing. The Committee oin Agriculture and Forestry does not believe that this provision caii do other than promote the development of safer and better pesticides.

Comments by the National Agricultural Chemicals Association in opposition tothis amendment ofthe Commerce Committee and by the Environmental Protection Agency in support of it are as follows:

## NACA STATEMENT RELATIVE T1O EXCLUSIVE USE OF DATA PROVISION OF 

### H.R. 10729

INTRODUCTION

NACA supports the exclusive use of data provision ofH.R. 10729 as a means of encouraging research on pesticides.

The simple economic fact,upon which the exclusive use of data provision is based is that no one is going to invest substantial amounts inresearch tomeet today's stringent regulatory requirements for data if competitive companies can thereafter use that data to register and sell in competition the

same product.

The purpose of this statement is to analyze the arguments which have been used to oppose the provisions and to discuss the reasons why NACA supports it.

SECTIONS OF H.H. 10729 INVOLVED

The exclusive use of data provision is necessitated by the establishment ofa new policy inH.R. 10729, Section 3. Under Section 3 (c) (4) the Administrator is required to publish in the Federal Register a notice of each application for registration of a pesticide if the application contains any new ac- tive ingredient or if the application would entail a new use pattern. Section 3(c) (1) requires the registrant to file a "registration statement" which would include, "if requested by the Administrator, a full description of the tests made and the results thereof upon which the claims are based * * *"Section 3(c) (2) operatively establishes additionalnew policy as follows: * * * within 30 days afterthe Administrator registers

a pesticide under this Acthe shall make available to the public the data called for in the registration statement together with such other scientific information as he deems relevant to his discussion. Theproponents ofthis new policy of publication ofinformation urged that the sole purpose of the policy was to make the data available to the scientific community for evaluation of its validity. While this seems a proper objective, making the data public would also mean that such data was available to competitors. To achieve thepurpose of assuring thevalidity of data submitted by making it public without adversely altering thecompetitive situationinthe industry andtoassure continuing research and development, Section 3(c) (2) (d)

was finally set forth as follows: (D) If requested by the Administrator, a full description ofthe tests made and theresults thereof upon which the claims are based, except that data

### submitted in

### supportofanapplication shallnot,withoutpermissionoftheapplicant, be consideredby theAdministrator in support ofanyotherapplication forregistration. (It isthe italicized portion which has been denominated as the exclusive use of data provision.)

The intent and effect ofthe exclusive useofdataprovision is succinctly stated in the report of the Committee on Agricul- ture of the House of Representatives which explains the provision intheseterms: Research data originated and submitted by an appli- cant for registration are not to be considered by the Administrator without permission ofthe applicant, in support of any other application for registration. (Report No. 92-511, 92d Cong., 1st sess., page20.) What these related provisions would do and would not do may bestated concisely:

1. They would make available for public inspection data submitted by anapplicant for registration (except data which the Administrator considersto constitute atrade secret.)

2. They would not preclude any other person from registeringthesame pesticide.

3. They would, however, preclude the Administrator from considering in supportof a second application for registra- tion ofa pesticide theresearch data originated and submitted by the original applicant, withoutthe permission ofthe original applicant.

4. They would not preclude the Administrator from con- sidering such research data in support ofa decision to refuse anotherapplication.

5. They would not preclude the Administrator from con- sidering any other data which heconsidered inregistering the first pesticide-they would only preclude, without the first applicant's permission, consideration of the research data originated and submitted by the firstapplicant.

BASIS OF OPPOSMION Opposition tothisexclusive useofdataprovision developed when H.R. 10729 was pending in the House of Representa- tives. Reasons for thisopposition asreflected both ininformal conversations with the opponents and as reflected in discussion of this provision when H.R. 10729 was debated on the floor ofthe rouse ofRepresentatives may be summarized as follows:

1.The provision subverts our patent laws by extending indefinitely therightsof exclusive production ofa pesticide ma- terial. (Congressional Record, Vol. 117, No. 169, November 9, 1971,page H-10767.)

2. The provision makes it impossible for theAdministrator in considering data originated by the first applicant to prove adverse effects from the pesticide of the second applicant. (Congressional Record, Vol. 117, No. 169, November 9, 1971, pages H-10742 and H-10760.)

### 3. The provision requires the Environmental Protection Agency tojoinwith manufacturers in"restrictive trade andin violation of the Freedom of Information Act outside the bounds of patent protection." (Congressional Record, Vol. 117, No. 169, November 9, 1971, page H-10740.)

4. The provision would require needless duplication of research.

DISCUSSION



### Analysis oftheseprovisions ofH.R. 10729 will demonstrate thattheseobjections cannotbesustained.
I. The exclusive use of dataprovisionsdo not extendpatent protectioneitherdirectly or indirectly 

### Even the most cursory analysis of these provisions will demonstrate thatthey would not extend either directly or indirectlythe protection received by aregistrant under apatent.

During the life ofa patent only the patent holder has the right to market the pesticide or to authorize others to do so. There is nothing in H.R. 10729that would prevent any other person from registering the pesticide granted sufficient supporting data. No other person would, ofcourse, have any rea- son to do so since after registration the pesticide could not bemarketed due topatentprotection. Afterthe patentexpires,
a different situation would exist either under present law or under H.R. 10729. Any other person would have the right not onlyto register butto market theproduct. Any other person wishing to do so would bein exactly the same position as was theoriginal registrant-patent holder.

Possiblythe effect ofthis provision in actual operation can beillustrated succinctly by analyzing a hypothetical example.

For our hypothetical example let us assume the following: 1.Pesticide Xwas patentedfollowing a demonstration ofits patentability as a contribution to the prior art. (A demonstrationof the type ofdata which is required to establish the patentability ofa newpesticideisattached asAppendix A-1.)

2. The patent holder did the necessary research work to demonstrate the eligibility of the pesticide for registration. (The type and extent of data required to support the registration under present law is attached as Appendix A-2. Ap- pendix A-2 consists ofan excerptof pages4-7from TheRegulation of Pesticidesin the UnitedStates which was pub

### lished by the U.S. Department of Agriculture and the U.S. Department of Health, Education, and Welfare in March, 1968. A summary ofthe general categories of data required forregistration isattached as Appendix A-3.) A survey con- ducted by the National Agricultural Chemicals Association shows thattheaverage cost ofdiscovery, andmeeting theregulatory requirements to the point of commercialization increased from $3,482,000 in 1967 to$5,493,000 in 1970.

3. The patent on Pesticide X in theUnited States will ex- pire in aproximately 4 years. It previously has expired inother countries, the laws of which provide a shorter patent life.

4. A foreign company, as a result of 3 above, is presently producing and marketing Pesticide X in portionsofthe world otherthan inthe United States.

On these assumptions, the opponents of the exclusive use of data provision would point out that except for this provi- sion,the foreign firm couldpromptly register and market Pesticide X in the United States following the expiration ofthe patent.

H.R. 10729 would not change this. The foreign firm would still have the right to register and market Pesticide X after the expiration of the patent. The exclusive use of data pro- visions of H.R. 10729 would require only that in registering the pesticide the foreign firm establish the safety and the efficacy of its product without the use of the original regis- trant's research data. This should imposeno undue burden on the foreign firm. Presumably that firm has already done a substantial amount of research to establish the safety of its product prior to having marketed it outside of the United States.

Under existing law as reflected in the Federal Insecticide, Fungicide and Rodenticide Act, the research work which has been conducted by the original registrant and patent holder to establish the efficacy and the safety ofPesticide X has not been made available for public inspection. The provision of H.R. 10729 and the new Public Information Act requiring that such data be made available for public inspection is new. Accordingly, the foreign firm in marketing Pesticide X out- side ofthe United States has not been able to rely upon re- search work that has been conducted by the original regis- trant-patentholder becausethese data have not been available tohim.

Likewise, there isnothing to prevent the foreign firm from submitting itsapplication for registration and thereby having its research data available to suport its application immediately upon the expiration ofthe patent. Furthermore, since tolerances for residues on food crops have already been estab- lished under the Federal Food, Drug and Cosmetic Act, the foreign firm would not be faced with the delay of 2 or 3 years now commonly experienced by original registrants in establishingtolerances.

Likewise, there would be no reason under H.R. 10729 why the foreign firm would not be ableto negotiate with the orig- inal registrant an agreement which would authorize it to use the research work of the original registrant-patent holder. This might, for example, require only that it pay a portion of the expense of that research work. There can be no valid charge ofmonopoly or restrictive practices attributed to such negotiations. If the original registrantdemanded an excessive price, the foreign firm, or any other proposed new registrant would always have the option of conducting the necessary research to establish the safety of its product.

## 17

We believe that theabove analysis of thisconcrete example demonstrates the fallacy of the contention that this exclusive

use of data provision extends in effect the life of a patent monopoly.

Actually, a situation somewhat comparable in result exists in Japan where one must submit (among other things) toxicity data generated by an "official laboratory" in Japan,

even thoughthe data are already available from aresponsible laboratory outside of Japan. Thus, a firm foreign to Japan must eitherpay another firm for useof data already generated by an "official laboratory" or must pay for the data to be generated by an "official laboratory."
I. The exclusive use of dataprovision will make economicallyfeasible researchnchick ill be requiredto keep

on the market,orto bringon the market,many useful pesticides. Initial registration ofapesticide does not assure continuing registration orthe right to market a pesticide. A registration remains in effect only as long as the officials are convinced that the product when judged by the latest scientific standards andtesting techniques, continues to meetthe registration requirements.

During the last 5 years the only parts of the registration requirements as reflected in Appendices A-2 and A-3, which have not been strengthened, thereby requiring additional testing, is the information on the type of pesticide and the formulation. The survey conducted by the National Agricultural Chemicals Association established that in 1967 the reporting companies spent a total of $6,997,000 or 18.4 percent of total research and development expenditures for maintaining the registration of existing products. In 1971 the expenditures ofthese same companies for maintanining existing registrations had increased to $16,829,000 or 23.5 percent of their total research and development expenditures. This trend has been sharply demonstrated by the large number of cancellation and suspension notices which have been issued under the Federal Insecticide, Fungicide and Rodenticide Act in the past 2 to 3 years.

Frequently the requirement for additional research to maintain in effect a registration comes late in the patent life ofaproduct. Frequently it appliesto pesticides which are not patentable or on which the patent has already expired.

The economic facts of life dictate that a registrant cannot
assume the expense of such research to continue in effect a registration and continue to sell his product in competition with others if his competitors can obtain the protection resultin from such research at no cost.

As a practical result, numerous pesticides have been removed from themarket overthe past few years because it was not economically feasible for the registrant to meet the demands for the additional research necessary to maintain the product on the market and, at the same time, have such research inure to the benefit of his competitors.d a t 

# 1

The exclusive use of data provision of H.R. 10729 would make it feasible in many such instances for a registrant to undertake research necessary to maintain a product on the market or to put a nonpatentable pesticide on the market, if the registrant could be assured that such research expenditures would not make it possible for competitors to market the same product without the necessity of making such expenditures.

The significance ofthese research costs is apparent when it is considered that they constitute a substantial portion of the sales income of the pesticide involved.

Dr.Richard H. Wellman, vice president and general manager, process chemicals division, Union Carbide Corp., has recently made an analysis of the cost of developing a new pesticide and the number of marketing years which are required torecover the development costs. In this studyhe used

a portion of the data produced by the National Agricultural Chemicals Association's "Cost of Research Survey." A copy of Dr. Wellman's analysis is attached as appendix B. His analyses ofthe cost of developing, producing, marketing and recovering investments for two typical pesticides are set forth in appendix A tohis study. His hypotheses are stated atpage 2 in paragraph 4. In example No. 1 he assumes that research started in 1963. He estimates that thecosts ofdeveloping and putting the pesticide on the market would not have been re- covered until 1980. In this case a patent probably would have been applied for in 1964 and issued in 1966 or 1967. By the time the costs were recovered there would remain only 3 or 4 years ofthe patent life. The executive committee on NACA has reviewed this study and believes that these two examples

are typical for the industry.

From these data it should be apparent that it is not eco- nomically feasible for a registrant to make expenditures of thismagnitude ifsuchresearch isto becomereadily available to competitors. The effect of the deletion of the exclusive use of data provision from H.R. 10729 clearly would be to discourage research on the production of new pesticides and to sharply limit research whether original or defensive to products having a substantial remaining patent life.

Under the present law registration information submitted to the Administrator has not routinely been made available for public inspection. Such information has, however, as a matter ofpractice but without statutory authority, been con- sidered by the Administrator to support the registration of the same or a similar product by another registrant. The re- sult tor the pesticide industry has been that each company engaged in research for new pesticides makes a very early determination of the likelihood of obtaining a valid and en- forceable patent since onlyby obtaining a patent can thecom- pany protect its research investment. If the company determines that it cannot obtain a valid and enforceable patent, research and development ofthe pesticide is abandoned. The

### result forthe users anddistributors ofpesticides is that apo- tentially important pesticide isneverdeveloped.

The new policy of H.R. 10729 requiring publication substantially aggravates the situation by providing competitors with the basis for further analysis and development ofsimilar products. The inevitable effect under either the present system or the system proposed in H.R. 10729 with the exclusive use of data provision deleted would beto remove orkeep from the market pesticides which could make a substantial contribution to the production of our national requirements for food andfiber.
III. The exclusive se of dataprovision is administratively feasible and is compatible with the other regulator requirementsofH.R.10729 

### From the foregoing discussion we believe ittobe clear that the remaining reasons which have been advanced in oppositionto thisprovision arewithout merit.

Inthe discussion on the floor of the House of Representa- tives, one opponent stated that this provision would preclude the Administrator from considering data submitted by one registrant as support for a conclusion that the comparable product of a second registrant is not safe and thereby shift the burden of establishing lack of safety to the Administrator.The provision does notrequire or permitthis conclusion. The only thing which it precludes the Administrator from doing, is considering research data originated by one applicant in support ofthe registration ofthe product of another applicant. It does not preclude the Administrator from rely- ing upon such data to deny the application ofanother applicant.The provisionhasnorelationship totheburdenofproof.

The charge was made that the provision would violate the Freedom of Information Act. This allegation cannot be sus- tained. The only thing which the Freedom of Information Act requires is that data in the files ofthe Government (with certain exceptions) be made available for public inspection. The provisions ofsection 3(c) ofH.R. 10729requires that all data in support of an application which has been granted be made available for public inspection, except for certain limited exceptions. The data will bemade available for pub- lic inspection. The data will be subject to appraisal by all interested parties as to its validity. This is a far different purpose and requirement thanto make the data public propertyafter ithasbeen openedforpublic inspection.
IV. Additionalresearchwhich would resultfrom the exclusive use ofdata provisionwouldbe beneficial 

### Opponents have suggested that this provision would re- quirea needless duplicationofresearch.Wedonotbelieve this to be the case. The type ofresearch to establish thesafety of

a pesticide and its effects on the environment is at the best imprecise. By necessity it generally is conducted on a limited number of laboratory animals. Replication of research con- ductedunderthese conditionscanbequitebeneficial.

### Experience has shown that impurities resulting from production processes may have substantial toxicological effects. Research conducted with a compound produced by one company may notbe valid for the same compound produced by another company.

To the extentthat this provision wouldresult in a replication of research it would thereby further contribute to the public knowledge of the pesticide and the assurance of its safety. V. The exclusiveuse ofdataprovisionhasbeenpracticed for manyyearsundertheFederal Food, DrugandCosmetic Act The concept of the exclusive use of data provision is not novel. The new drug provisionoftheFederal Food,Drug and Cosmetic Act requires that the marketer of any new drug establish its safety. The type ofresearch through which this is established is comparable to that underthe Federal Insecticide, Fungicide and RodenticideAct. Title21, CodeofFederal Regulations, section 130.4(b) provides with reference to supporting data submitted to establish the safety ofa new drug,asfollows: (b) Pertinentinformationmay beincorporated in, and will beconsidered as part ofan application on the basis of specific reference to such information, including information submitted under the provisions of §130.3, in the filesofthe Food and Drug Administration; however, any reference to information furnished by aperson other than the applicant may not be considered unless use of such information is authorized in a written statement signed bythepersonwho submitted it.

CONCLUSION 

### The foregoing discussion, we believe, demonstratesthatthe bases ofopposition of the opponents of the exclusive use of dataprovision are withoutmerit:

In norespect does the provision subvert ourpatentlaws by extending indefinitely the right of exclusive protection of a pesticide material. The provision does notprevent any com- pany from producing and marketing a pesticide after its patent has expired. It merely requires thatthe newmarketer establish the safety and efficacy ofthe product which he now proposes toproduce andmarket.

The exclusive use of data provision does not preclude the Administrator from consideringdata originatedbyoneappli- cant toconcludethat adverseeffectsmightbeexpected toarise from the pesticide of the second applicant. It merely pre- cludes the Administrator from using such data in support oftheapplication to register anotherpesticide.

The provision inno way violates the Freedom ofInformation Act. The research data is made available for public inspection and appraisal.

### 21

The provision wouldnot require needless duplication of re- search. It merely would require that one company establish the safety and efficacy of the product which it proposes to market.

NOTE: For appendixes, see page 247 et seq. of hearings.

EPA Comments

3. AMENDMENT NO. 

### 1004
Thisamendment woulddelete from section 3(c) (1) (D) the provision which prohibits the Administrator from considering certain test data submitted in support of a registration; and would insert a provision which would explicitly state his authority to consider any test datasubmitted todetermine the adequacy ofanapplicant's testdata.

We agree thatthe present language in 3(c) (1)(D) should be deleted for a number of reasons already presented to the subcommittee in our testimony. We do not believe that it is necessary for the Administrator to have specific authority to
use available data ifthere is no prohibition against his using it.Thus, deletion is sufficient and the grant ofaffirmative au- thorityisunnecessary.

In makingtherecommendation, itisourunderstanding that where testing is specifically required by the Administrator a subsequent applicant is not relieved ofhisburden to test simplybecause anotherhad previouslyconducted the sameor similartests. However, we feel the Administrator should be able torefer to any previously submitted test data when consideringthetestdataofa subsequent applicant.

(EPA's testimony, referred to above, appears at page 95 oftheCommittee's hearingsas follows:

("2. A second undesirable feature isthe provision that test data submitted in support of a pesticide registration appli- cationcannot beconsidered by theadministrator without per- mission oftheoriginator ofthe dataifsuchdata tendsto support another registration application.

("The effect of this provision is to afford additional eco- nomic protection, fostermonopoly, and itmaytend torestrict pesticide business to large manufacturers. In addition, it wouldincrease notonly Federal administrative cost butthose ofthemanufacturer aswell, aside fromunnecessarily increasingtheapplication processingtime.")

COMMENTS OF THE COMMITTEEON AGRICULTURE AND FORESTRY ON AMENDMENT NO. 3 OF THE COMMITTEE ON COMMERCE (ADVISORY COMMITTEES)
In brief, this amendment is ambiguous,so thatits effect cannotbe known.It wouldappeartosubstitutean ambiguousconflict ofinterest rulefor one which the Committee on Covinerce and the Coarnittee

on AgricultureandForestryagree constitute an "admirablepolicy".



### This amendment (which appears at the bottom ofpage 96 and top of page 97) would require any committee of the National Academy

### 22

of Sciences to which relevant questions of scientific fact might be referred under section 6(d) to include qualified scientists. Not more than one-third of such scientists could have an economic interest in the chemical industry, and none of the members could have an eco- nomic interest in thepesticide which is the subject ofreferral.

The reason for thisamendment is not clear. A committee composed of two scientists who were not interested in the chemical industry and 23 nonscientists who were deeply economically involved in the chemicalindustry could meetthe requirements ofthe Commerce Com mittee amendment. If theamendment is nomore restrictive thanthat, itmerely creates an illusion ofavoiding conflicts of interest and would appear to condone conflicts that would not be countenanced in its absence. It seems unlikely that the amendment accomplishes whatever objective is intended. The Commerce Committee report in describing that committee's intention says at page 19, "The amendment specifies that not more than one-third of the members of an advisory committee may be composed of scientists with an economic interest in the chemical industry and * * *" 

### Thisexplanation isat variancewiththe language oftheamendment, compounding the difficulty oftrying to find out what the Commerce Committee istrying to recommend. Totake another example,ifacom- mittee with 27 members included 9scientists,then under thelanguage of the amendment not morethan 3ofsuch 9could have an interest in the chemical industry. Under the report language all ofsuch 9 could be so interested.

To still further compound the problem the Commerce Committee citesa stilldifferentrule with approval as follows: "Current EPA policy prohibits representation on advisory committees ofscientists with a conflict of interest in thepesticide under consideration. While this is an admirable policy, there is no assurance that it will remain intact under succeeding Administrators." The Committee on Agriculture and Forestry agrees thatthis is admirable policy. It appears far better policy than any of the proposals of the Commerce Committee, and it hardly would be expected to be changed, since itis generally in line with similar policies throughout government.

COMMENTS OF THE COMMITEE ON AGRICULTURE AND FORESTRy ON AMENDMENT NO. 4 OF THE COMi-rEE ON COMMERCE (raNALTIES) In brief,this wozdd increasethe maimum iel penalty fora householder or otherperson not in the pesticide business above thatfor manufacturers,comnierrial applicators,and others in the pesticide business.



### This amendment (which appears at page 116, line 2) would raise theallowable civil penalty from $1,000 to $10,000 fora violation ofthe act by a private certified applicator or other person not covered by section 14(a) (1). This would permitimposition of nearly the highest penalty fortheleast seriousoffense.

### 23

The amendment of the Committee on Agriculture and Forestry provided for an orderly progression of penalties based onthe serious-
ness of the offense. Thus, starting with the ordinary householder, private applicator, farmer,orother personnotinthe pesticidebusiness committing anoffense not deemed suitable forcriminal prosecution the Committee on Agriculture provided for a maximum civil penalty of $1,000. For an offense by such a person deemed serious enough for criminal prosecution the maximum penalty would be $1,000 plus imrisonment for 30 days. The Committee on Agriculture and Forestry Ielt that an offense by a registrant, commercial applicator, wholesaler, dealer, retailer, or other distributor should be treated more seriously than an offense by a householder. Aregistrant, forexample, should have greaterknowledge ofthe dangers ofpesticides and greater familiarity withthe law regulating their use. A violation by a registrant would be much more likely to have widespread and serious effects than a violation by a householder, home gardener, or farmer. Consequently, the amendment of the Committee on Agriculture and Forestry prescribed a civil penalty of not more than $5,000 for an offense by a person in the business of making, selling, or applying pesticides. An offense by such a person serious enough for criminal prosecution would be subject to a fine of up to $25,000 and imprisonment forupto 1year.

The amendment proposed by the Commerce Committee would permit a householder who misuses a roach spray in his own house to be subjected to double the civil penalty which could be imposed on a commercial applicator spraying anentire forestbyairplane. TheCommittee on Agriculture and Forestry recommends rejection of this amendment.

The report of the Committee on Commerce describes this amendmentonpage 19ofitsreport asfollows: 

## "(4) Penalties

The amendment raises from $1,000 to $10,000 the civil penalty for violations ofthe Act byprivate certified applicators. Those pesticides which are classified for restricted use only might be required to be applied only by a certified applicator. The proposed legislation provides that commercial applicators are tobe subjectto penalties not to exceed$25,000 while private applicators are to besubject to penalties of not
more than $1,000. As huge corporate farmers could be cer- tified as private applicators, a $1,000 penalty will be an insufficient deterrent to prevent violations by such applicators. Consequently, the committee recommends thatthe maximum penalty be appropriately raised to $10,000." The statement quoted above would certainly lead the reader to believe that this provision is applicable only to 'private certified applicators".That is bynomeansthe case.It isapplicable as vell (page 1,15, line 21) toany "other person notincluded in paragraph '(1)", (i.e, any- one not in the pesticide business). Private certified applicators would constitute only a very small percentage ofthe persons subject to this penalty.

The third sentence of the statement quoted above would certainly lead the reader to believe that the Commerce Committee is comparing

### the civil penalties forcommercial applicators with the civil penalties for private applicators, and that the civil penalty for a commercial applicator is $25,000. That is byno means the case. The civil penalty for a commercial applicator (page 115, line 19) is $5,000, or one-half that provided by the Commerce Committee amendment for a private applicator. The number of"huge corporate farmers" mentioned above who apply their pesticides themselves is probably a very small num- ber in relation tothe number of (1) small farmers, gardeners, householders, and others who apply their own pesticides who would bemade subject to a maximum civil penalty of$10,000, and (2) "huge corporate" manufacturers, distributors, merchandisers, and others who would continue tobe subject toamaximum civil penalty ofonly$5,000.

The fourth sentenceofthe statement quoted above isalso incorrectin statingthat "huge corporate farmers could becertified asprivate appli- cators." Under section 2(e) (1) and (2) only an "individual" can be so certified.

COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRY ON

AMENDMENT NO. 5 OF THE COMMITTEE ON COMMERCE (EXPORTS)
In brief, the principaleffect of this amendmentis to strike out the requirenent thatforeigngovernments be notified when apesticideis bannedin the UnitedStates (page 123, lines 19 through25).

This amendment would- (1) require the filing of a statement similar to a registration statement for any pesticide intended solely for export and pre- pared or packed in accordance with the specifications of the foreign purchaser (page 123, lines 7through 10) ;

(2) require records with respect to such exports to be maintained and to be open for inspection (page 123, lines 10 and 11);

(3) prohibit exportation of any pesticide unless the Administrator determines that such export will not result in unreason- able adverse effects on theenvironment ofthe United States (page 123, lines 11through 18) ;

(4) require the Administrator to notify the government ofthe foreign nations to which any pesticide may be exported ofthe availability of (A) registration or similar statements filed under section 3(c) (1) ; (B) all labels "approved under section 3"; and (C) all orders of suspension and all notices of cancellation or changes in classification pursuant to section 6 (page 124, lines 1 through 9).

(5) strike out the Agriculture Committee provision requiring copies of cancellation notices to be sent to foreign governments whenever cancellation became effective (page 123, lines 19through 25). Cancellation notices are required by this law to be published in the Federal Register routinely for each pesticide each five years. Neither these nor cancellation notices issued at other times necessarily result in cancellation and there isno good reason for sending them to foreign governments aswould be required by the Commerce Committee amendment, until it isknown whetherthey will actuallyresult incancellation. Sending them prematurely gives the foreign government absolutely no information as to pesticides which are banned in the United States.This amendment is not necessary and does no good. It will unnecessarily increase the cost of administration and the amount of red tape to which industry is subjected. It fails to accord proper recognition that other soverign nations are fully capable of self-government.

Each country to which a pesticide may be exported is fully capable of deciding what information it desires in connection with pesticides, what pesticides are needed to meet its problems, and where the balance lies between risk and benefit within its borders. It would probably prefer to have that information submitted in its national language.

The possibility ofthe export ofa pesticide resulting in unreasonable adverse effects on the environment of the United States is highly speculative. It is usually theuse, ratherthan the export, thatmay result in adverse effects. Use abroad should not have adverse effects here, butin any event the amendment makes no attempt to prevent suchuse. Pesticides can be manufactured in any country of the world as easily

asthey can be manufactured here. A multinational company which is prohibited from exporting a pesticide to a country which desires touse that pesticide can move its production of that pesticide to a foreign country. The sole effect would be a loss of American jobs and an increase inourbalance-of-paymentsproblems.

Since the amendment provides for preclearance by the Administrator of pesticides prepared or packed for export according to the purchaser's specifications, even completely harmless pesticides would be purchased in other countries in preference to this country in order to avoid the delays and uncertainties involved in such preclearance.

There are a multitude of countries in the world. In some cases there may be disagreement as to the proper government of a particular country, or whether the country is one country or two.' The amendmentwould requirethe Administrator todetermine these questions and send hundreds ofpieces of paper to each of these governments, many of them (like routine cancellation notices) of no significance. The costofthese mailings, thecostoftheir translation into thelanguages of the countries to which they are being sent (if that is done), the damage to the ecology caused by the production and disposition of the

I The following memorandum illustrate$ this problem:

THE LIBRARY OF CONGRESS, CONGRESSIONAL RuESEARCH SERVICE, Washington, D.C., August 7, 1972. To: The Honorable James B. Allen, Chairman, Subcommittee on Agricultural Researc ood Gentrol Legislation, Scoote Committee on Agriculture Bad Forestry. From: Marjorie Ano Browne. analyst in international relations. Via: chief. Foreign Affairs Division. Subject : The number of countries in the world

one could estimate that there are 147 nations in the world today. The first element of this estimate is a number of 70 countries "generally accepted as independent In the world community" on the eve of World War II a figoee given in the August 1969 edition of 'Oatus of the World's Nation.s, a publication prepi by the Geographee se at the Department of State (Ilueau of Intelligence and escearch ; Geographic Bulletin No. 2. pgr 1) According to thi source "the concept of independence

. . means statelhod without foreign jarisdltlon' (Page 1). ils number af 70 s increased by the 72 states which hao aevsed er ty t i.lce the, carl 1940's, accordig to a checklist published in the April 1972 1-or at the Departient of State Newsletter. Thus, the niu- her of independent stolte proided by Departtient of State sources totals 142. This figure however, does not include thii Geriman Deiiocratic Republic (East Gerianyl ; the Democratic People's Republic of Vietnai (North Vietnil), the Detocratic Peole's Republic of Korea (North Korea), she Prople 's 5epublc of China an the Mongolian People's Republic. Add these five states and the total is 147.

Not included within the 147 notbee is Soouthern Rhodesia which, ihite declaring its independence unilaterally in November 1965, is still considered as being onder the juris- diction of the United tsingdon. A key clement i national sovereignty is the concept t of political independeice. Ta-US. epoate gceriplic entities oich do not enjot political tndepene-'iir esatiple

- am iiiique is miter the political authority of Portugal; Gibraltar is under the authority of the Uited Kingdom are not included i the non ber of 147 Independent nations of the world26

amount of paper involved may not represent a significant social or economic cost, but it is waste and should notbe countenanced.

The report of the Committee on Commerce does not give any clue

as to the objectives sought to be obtained by the information requirements ofthis amendment. Portions ofthat report which might atfirst
create animpression ofpertinency are as follows:

First,thatreport says atpage 19,
The amendment of the Committee on Commerce would prohibit exportation if the use in a foreign country presents unreasonable risks tothe environment (including man) ofthe United States. To enable EPA to make these determinations, test data would be supplied and pesticides would be subject
tothe reporting requirements. The statement that "test data would be supplied" is not necessarily true. If the Commerce Committee amendment were adopted which requires the statement filed with the Administrator under section 3(c) (1) (D) to include only a full description of "any tests offered" in support of the application, the exporter might simply elect not to offer any tests in support ofthe application and leave this part ofthe application blank. If the language of the Committee on Agriculture and Forestry in section 3(c) (1) (D) which requires "a full description of the tests made and the results thereof upon which the claims

are based" is adopted, notest data would be required if no claims were made. To take an example, let us assume that the foreign purchaser orders pesticide X in 55-gallon drums labeled only with the name of the pesticide and the name and address of the purchaser, since the purchaser intends to repackage the pesticide under his own label in the country to which exportation is being made. Since no claims are being made for the pesticide, there can be no description of the tests upon which the claims are based.

Second, the Commerce Committee report says at page 20,
Recent experience has indicated a need for tightening our control over pesticides manufactured in this country forex- port. For example, in hearings before the Subcommittee on the Environment, Senator Gaylord Nelson described how mercury pesticides manufactured in this country wereresponsible for at least 400 deaths and many more injuries in Iraq. The Commerce Committee report, it will be noted, does not state that its amendment would tighten our control over pesticides manufactured for export, nor does it say that the discussion oftheunfortunate

occurrence in Iraq is in any way relevant tothe amendment proposed by the Committee on Commerce. If made, such a statement would have been misleading, for the Commerce Committee amendment does not tighten control over pesticides manufactured for export, nor is it in any way related to the occurrences in Iraq. (See paragraph (8) ofthe letter from EPA which appears at the end of the comment on this amendment.)

Third, the Commerce Committee report says at page 20, "To better enable foreign governments to make informed choices as totheir use of a pesticide, the amendment requires that an adequate amount of data bemade available to them."

### This statement appears tobebased on amisunderstanding ofthe bill. To the extent that the Commerce Committee amendment is effective in thisarea at all, it would appear thatits effectsmight beto provide foreign governments with misleading information. The following ex- amples shouldillustrate how 'it would work. Example 1.A U.S. manufacturer exports pesticide x for sale by it abroad. This pesticide hasbeen registered under the law. It has been found bythe Administrator to beeffective and safe for the protection ofman andthe environment. It islabeled with appropriate directions, cautions, and warnings. Since the foreign purchaser isnot yetknown, the pesticide has neither been prepared nor packed according to the specifications ofsuch purchaser. Under thebill as passedby theHouse and as recommended by the Committee on Agriculture and Forestry, this pesticide is not exempt from any provision of the act but must comply with all of them. The foreign purchaser is given all ofthe information and protection that would be given to a purchaser in the United States.The label isaffixed tothe pesticide container andis thus readily available to the foreign government. The Commerce Committee amendment would require in addition that a separate copy of the label identical to that placed on the exported product be sent to the government ofthe foreign country. This would not appear to pro- vide the foreign purchaser with any greater protection than he would have in the absence of the Commerce Committee amendment.

Example 2. Aforeign purchaser order Pesticide X for export from the United States. Because the method of applying the pesticide used in the country to which exportation is being made differs from that used in the United States, the foreign purchaser requests that the pesticidebe diluted bydouble the quantity of inertingredients used in packing the pesticide for use in this country. He furnishes a label which describes the pesticide as Pesticide X. His label is printed inthe language of the country to which exportation is beingmade andcom- pliesin every way with the laws ofthat country. Becausethepesticide is in dilute form, the directions on his label provide for application at double the rate provided when the pesticide is packed for use in the United States. In compliance with the Commerce Committee amendment, the U.S. exporter files this label and the other information required by the Commerce Committee amendment with the Administrator. Since the exporter is not applying for registrationof this pesticide, the label is not required to be "approved under section 3" and is not so approved. It is simply filed. Since this label isnot "ap- proved under section 3"the Commerce Committee amendment does not require that it be sent to the government of the country to which exportation is being made. Since Pesticide X. however,has been regis- tered in the United States, the Commerce Committee amendment re-

ires that the label approved under section 3 for use in the United

s be sent to the governments of foreign countries. The information received by this foreign country from the United States, therefore, isnotinany way relatedto theproduct imported fromtheUnited States. The U.S. label may not meet the requirements of law of the foreign country, whereas the label onthe imported product does com- ply with those requirements. The directions, cautions, and warnings will be different onthe two labels. The information furnished by the United States in this example, to the extent that it has any effect,

S. Rept. 838 0, 92-2--5could only be to cause misunderstanding and confusion. If this mis. information were made available by the foreign government to the people using the pesticide, it might result in crop losses, starvation, financial ruin, and other disasters to the people of that country and embarrassment tothe United States.

Example 3. Many other examples might be suggested. The foreign purchaser might order Pesticide X at double strength rather than half strength. In this case, use of the U.S. directions rather than the foreign purchaser's direction might result in pesticide deaths and injuries. The foreign purchaser might desire to have Pesticide X pack. aged under the name by which it is commonly know in the language of the country to which it is exported. He may wish to have it packaged differently with different directions because the lawsof hiscoun- try require such variations or because it is tobe used on crops which are not produced in the United States or on pests which are not found in the United States or for many other reasons. The Committee on Agriculture, however, has beenunable to find an example under which the information required to be furnished by the Commerce Committee amendment would be useful, and the report of the Commerce Committee doesnotsuggest such an example.

TheCommerce Committee report saysatpage 20, It is intended that all notices of intent to cancel will be furnished to foreign governments as well as allfinal ordersof can- cellation. (italics added) The italicized part ofthe statement just quoted isthe only part that would provide for relevant information. The intention of the Com-
merce Committee in this respect would be defeated by its amendment, since it strikes out the provision which would let foreign governments know when cancellation became effective. The Commerce Committee amendment doesnotprovide thatanyfinal ordersofcancellationwill befurnishedtoforeign qorernients.

The Committee on Agriculture and Forestry rejected a similar amendment for the above reasons and on the basis of the following recommendation ofthe Environmenal Protection Agency:

11. AMENDMENT No. 1013

The amendment would impose 3 requirements on a pesti- cide intended solely for export: (1) a section 3(c) (1) state- ment would be required to be submitted to the Administrator for any export pesticide when such statement would be re- quired if the pesticide were produced for domestic use, (2) the books and records provisions of section 8 are applicable to such a pesticide, and (3) the pesticide shall have no un- reasonable adverse effects on the environment of the United States.

We object to the proposed amendment unless certain language corrections are made. Any pesticide produced for domestic use would require a section 3(c) (1) statement for registration, so the effect of the proposed amendment is to require any export pesticide tohave such a statement. Therefore, much of the amendment language is either unnecessary or unintentionally far toobroad.In addition, the amendment is written sothat pesticides are subject to section 8 when in fact pesticide producers, distributors, et cetera are so subject.

The amendment would also require the Administrator to furnish to foreign governments (1) notice of the availability of section 3(c) (1) statements, (2) all registered labels, and (3) all changes in classification, suspension, and cancellations.

We do not recommend enactment oftheprovision concerning material furnished to foreign governments. The administrative load of the provision would be immense and its benefits questionable. For example, given the above amendment concerning submission of 3(c) (1) statements, it could be presumed that a foreign government would know oftheir availability as long as it knows the provisions of the act. The bill already provides that notices of cancellation will be furnished and cancellation would occur upon any suspension. The need for foreign governments to know a change inclassification is dubious; they would not have the particular usecontrol program of the bill, and would, on the other hand, have theexpertise sufficient tojudge theenvironmental effects of a pesticide pursuant to their own use-control programs. For the same reason the value of providing all labels approved under section 3 isquestionable. The following letter from the Environmental Protection Agency makes it clear that- (1) Under the Commerce Committee amendment foreign governments would receive atleast 6,000 eancellation notices annually and during a five-year period would receive a cancellation notice for each pesticide that had been registered in the United States at the beginning of that period. These notices would rarely result in cancellation and under the Commerce Committee amendment foreign governments would not be advised ofthose that did.

(2) No one is interested in receiving the information that the Commerce Committee amendment would require tobe given.

(3) If foreign governments were to send us such information they would be sending us information which is of no use to us.

(4) The amendment would require extensive microfilming and shipment ofuseless data.

(5) None of the data would be translated into the language of thecountry to which it was sent.

(6) None ofthe export labels which appear in thelanguage of the country to which exempt pesticides are to be exported would be translated into English when they were filed with the Administrator, since he is not required to do anything with respect to them other than to store them; and

(7) The Commerce Committee amendment would not, if it had been in effect, have averted the Iraq incident. Important statements inthe July 25 letter (referred to in the following letter) which were omitted from the following letter are: "Despite the red dye, skull and crossbones on the bag, and warnings from the government, the farmers began feeding the grain to their poultry

### 30

and cattle." and "Moreover, it wasnot the importation of a 'pesticide' as defined in H.R. 10729 that caused the incident and so we

see no way that any restrictions on exports of pesticides could have influenced it. Shot of a world-wide restriction on exports of highly dangerous pesticides by all nations we see no way to avoid Iraqi-type tragedies."

Also omitted from the following letter but contained in the July 25 letter was the fact that under existing law without the
Commerce Committee amendment any information that may be useful to foreign governments is furnished to them. The pertinent paragraph ofthe July 25 letter is as follows: "(2) We would and do make available to any foreign governments all ofthe informationthey might specifically request except for trade secrets."



### U.S. ENVIRONMENTAL PROTEcrTION AGENoC, 

### Washington, D.C., August1,1972. Hon.JAMES B. ALLEN, U.S.Senate, Washington,D.C.

DEAR SENATOR ALLEN: This is to supplement our letter of July 25 responding toyour several requests for information.

1. There are approximately 30,000 registered products. By law we
are required tocancel automatically each registration at the end of a five-year period.In any given year about one-fifth (or six thousand) automatic notices should be sent. 2 In addition, labeling deficiencies or requirement for additional data result in numerous notices of cancellation. It israre that these five-year notices result in final order of cancellation; rather, renewal occurs after the file has been updated or appropriate label changes are made.

2. We have received no requests for the specific data which the proposedexport amendment requires ustofurnish toforeign governments. To reiterate our July 25 ' letter, the only requestsreceived, thus far, are forinformation concerning majoractions on generic chemicals.

3. There wouldbe no reasonto receive specific label data about registered foreign pesticides. If it is shipped to this country for domestic use, the material must be registered pursuant toall requirements applicable to domestically used and produced pesticides. Data and labels received by a foreign government would not necessarily cover the precise formulation for thepests against whichthe product will beused in this country.

4. Under the proposed export amendment we would have to furnish data to all countries whichreceive pesticides exports.

Literal compliance with the amendment would require microfilming all labels for registered products (color reproductions) and the shipment ofthousands of pages ofregistration data. There would be the additional cost of furnishing copies of five-year and other routine notices of cancellation.

5. To reiterate our 25 July letter, we would not translate this data. 6. We see no reason for the U.S. totranslate any of theregistration material into other language unless the law requiresit.

7. Again, wedo notconsider it appropriate toany part ofany export label unless weare required bylaw to doso.

See footnotes, pp. 31-33.

### 31

8. To summarize ourknowledge ofthe Iraqi incident asdescribed in I greater detail in our letter of July 25,' sometime during the spring of 1971, the Iraqi Government ordered 80,000 tons of barley and wheat seed from Mexico, and an unknown quantity from other countries. Apparently at Iraq's request, the seed was treated prior to shipment with a mercury fungicide, some of which was apparently purchased from American manufacturers. The seed was dyed bright red, in accordancewith normalprocedures, towarn usersthatitwashighlytoxic andnot to beeaten.

For some reason, aconsiderable amount ofseed shipment, notnecessarily from the Western hemisphere, was not planted, probably because it arrived too late in the season. Apparently Iraqi citizens used theseed in theirbreakmaking, and marketed the meat oflivestock fed with the mercury seed. Contaminated meat thus found its way to the market, despite the ban placed by the government on the sale of infected livestock.

We can seenoway in which theproposed amendmentbyitselfwould have averted the Iraqi incident. We have been assured that the Iraqi Government wasadvisedthat suchtreated seedhad beenbanned inthis country because ofthe hazard but insistedthat theywanted such treatment anyway. Sincerely yours,
CHARiEs FABRIKANT, SpecialAssistant for Regulator-yAffairs.

' The July 25 letter referred to herein is set out below, together with the letters requesting the information it was intended to supply. Because the July 25 letter showed a much smaller number of cancellation notices than the number which should have been sent, and because of Inclusion of non-responsieve material Implying that the Commerce Committee amendment provided for exchange of information on "all major actions", Informal meettags various countries, and other matters which the amendment does not provide for, the Committee asked the Environmental Protection Agency to provide a substitute letter which give thecorrect information and would not be misleading Jots" 24,1972. 'Hon. WrsttA3 D 11t curLs Sa. "Administrator, Environnctal ProtectionAgency, "Wahingtuo, D.C.

"DEAn AIn. UELSHsT : Would tol please adsts me as to the umlber of eancellatio notices issued under the Federal Insecticide, Fungicide, and Rodenticlde Act during 1971

or any other year you think appropriate and the number of cancellation orders that weere made effective during the same year.

" would appreciate this information no later than 4 :00 p.m. July 25. "With every good wish, I am "Sincerely, "J.AMESB. ALLEN."

"JULY 20, 1972. "Hon WILLIAs D. RUCKELSHAUO, ".dmiatnisrtor.Earirone'n ttl Protecti"eagency, "Room 3104, WatersideMall, Woshington, D C.

"DEAR Ma, RUCKELSHAUS: The Committee on Commerce ires recommended an amendment on H.R. 10729 which deals with exports of pesticides It provides for filing certain information with you subjects exported pesticides to certain books and records requireminets, prohibits exports in certain cases, and requires you to furnish each foreign govern
meat with (1) a notice of the availability of the statement required under sections 3te) (1), (2) all labels approved under section 3, and (3) all orders of suspension and all notices of canceIlation or change in classification Issued purssant to section 6.

"I have your comments on a similar amendment in which you pointed out technical deficiencies as well as substantive objections. It does not appear to me that the amendment proposed by the Commerce Committee corrects the deficencirs yo pointed out, nor does it make any change in ubstance which would remove your substantive objectios. If this is correct, please so advise me.

"I would appreciate it if you would further advise me on the following matters:"(I) Have any foreign governments shown any interest in receiving on a regular basis the typeofinformation which would be required to be sent them without request under the Commerce Committee amendment?

"(2) Without the Commerce Committee amendment, would this information be made available upon request with respect to any pesticide registered by the United States if any foreign government shouldfeel any need for this type of information ?

"(3) In your administration of the Federal Insecticide, Fungicide, and Rodenticlde Act, haveyou had any need to receive this type of information from other foreign governments. Would the receipt of such information from foreign governments provide you with any relevant information that you would not obtain from applicants forregistration under the bill

? "(4) Since the required information would have to be sent to the government of the foreign nations to which any pesticide may be exported, and since any pesticide might be exported to any country in the world, I would like to know thenumber of countries towhich each new label, each new order of suspension, and each notice of cancellation or change in classification would berequired to be sent, thecoot of each such mailing, and allother costs involved in administering this provision, exclusive of those required to beborneby pesticide manufacturers, exporters, and other citizens. If you have any views as to the coststo be borne by such other persons, I would appreciate that information.

"(5) In administering this provision, would it beyour intention to translate all domestic labels into the language of each country to which they are required tobe sent? Ifso, please include a cost estimate for that function.

"(6) In the case of pesticides intended solely forexport and prepared or packed accord. ingto the specifications or directions of the foreign purchaser, would it be your intention to translate those labels into English? Since the amendment does not contemplate any action by you other than acceptance of the label when filed. I would assume that there would be no point in such translation.

"(7) Section 27 of the law as it would beamended by the bill permits the Environmental Protection Agency to charge a reasonable fee for registration. I assume that such fee would be based upon your costs. If that were the case, what would be your estimate "0to the amount of the additional registration fee that would be required as a result of the provi- sions ofCommerce Committee amendment relating toexports. (5) There were a number of people in Iraq that were billed or injured s a result of rating, or eating the meat from animals which had eaten, grain coated with a pesticide. Would you please furnish me with the details of that occurrence and your opinion as to whetherthe proposed amendment would be likely to prevent any such occurrence or other- wiseserveany useful purpose.

"With every good wish, I am "Sincerely, "JASOESH. ALLEN, "Chairman,Subeommittee on Agefealfarol "Research and GeneralLegislation."

"ENVIRONMENTAL PROTECTION AGENCY, "Hon. JAMEsa B. ALLEN, "Washington, D.C. "U.S. Soate, "Wsshingtons, D.C.

"DEAR SENATOR ALLEN : Mr. Ruckelshaus has asked me to reply to your letters of Jolt 20 and 24 regarding the Commerce Committee amendment to H.t. 10729 which deals with export of pesticides and the number of cancellation actions tahen by this Agency. We hove tried to respond to thequestions you poled in your letters to the best of oor ability. Becausewe have had little experience with the kind of program envisioned by the Amend- sent which calls for international cooperation, accurate data, particularly as regards costs of the proposed amendment, are not available. Most of oar figures should only be regarded at best as very rough estimates.

"To take your July 24request fSrst regarding the number of cancellation notices issued under the Federal Insecticide, Fungicide and todentiride Act daring 197, the Pesticide Registration Division cancelled registrations for upwards of 2000 products by "class action" PR notices. Includedwere products containing DDT a drin/dielidrin and mresx.

"Furthermore, i 1071. 1347 specific notices of cancellation were sent out involving individual products, generally as a result, for ample, of labeling deficiencies or a need for upgradssg efficacy data Float cancellation did not result inmost roses.

"Unfortunotely we do not have an exactfigure on the number of product registrations cascelled. With te installation of a new computerized data retrieval system scheduled during 1972 73, we will be able to provide the more precise figures of the type you have

'To respondto the specific questions

...c.. ng an international program "(1).The only requests from foreign governments that we know shoot are Is Or'n ganizaton of Economic Cooperative Development (OECD) has ke k o abo arec iar hoots) to advise member nations through OECD re ra of ui m ton a recga....

....

...- ecr ti nof a r ac Ios reg lation of pesticides as soon s we deride on them The Deportment ofAgriculture has been advisln~reat s which adratioshave o significatrconomirimpact on forelga nations; (hi tiratritoin, Cndand this country have been having informal meetings to exchange current inforwotton and thisking on pesticide regulations.;(c) we bave also received scattered requests for summoeles of registration and tolerance actions.

"(21 Wewould and do mae available to a foreign governments all of the informs tion,(theywmight speclficoily request except for tradesecret " ave not felt the need to receive registration information from other govern

## 33

ments. Occasionally such information might well supplement the information we receive from applicants. It is often difficult to evaluate such Information without Information on the research methods of foreign governments. We are trying to develop a basis for evaluation by a series of technical conference
, with Rusia which should give us a better basis for learning what they and other countries aredoingas well as for evaluating their scientific literature. Much of this has already been done with Western nations. For instance, much of our background on mercury hazards and on PCB's came originally from other countries, but it came through multi lateral conferences more than any other single channel. (4) Bureau of the Census Report FY 410 indicates that during 1970 U.S. companies exported pesticides to 132 countries. This should give a good estimate of the number of nations that would require each new label, order of suspension, notice of cancellation,
or change in classification.

'le ieel that the intent of the amendment could be complied with at a reasonable cost by nakitngavailable the EPA Coimipendium 01 Registered Pesticides to any country re- i blasting it. This fie-volume Publication, vhen completed, will provide information on all label uses and precautions tor registered pesticide products, contents of the product, dosage and dose ranges, activeingredients, types of formulations, crops involved, and resioue tolerances, whtien they are requIred.

"We are unable hiwrser, to provideyou with precisedata on the Costof supplying specific registration data to other countries. Taken literally. the data to be furnished under the amendment could amount to as little is a single page or.in some instances, to hundreds ofpages, Thus, the costs of administering a detailed information exchange pro- gram would bequite significant. (5) We see no reason for the U.S. to translate any of the registration material into other languages unless the law requires it. The recipient country should bear this responsibility. (6) Again, we see no point in our translating any part of any export labelunless we are required todo so.

'(71 Inasmuch as Section 27 of H.R. 10729 limits fees to those required for registra- tion under Section 3, it would not seem that any of the costs of prodding information to foreign governments could be recovered by charges. These services would have to be supportedby appropriated funds.

"() Sometime during the spring of 1971,the Iraqi Government ordered 80,000 tons of barley and wheat seed from Mexico, and an unknown quantity from other countries. Apparently at Iraq's request, the seed was treated prior to shipment with a mercury fungicide, some of which was apparently purchased from American manufacturers. The
seenwas dyed bright red, in accordance with normal procedures, to warn users that it
was highly toxic and not to beeaten.

For some reason, a considerable amount of seed shipment, not necessarily from the Western hemisphere, was not planted, probablybecause it arrived too late in the season. Nontheless, the seed somehow entered the channels of commerce. Despite the red dye, skulland crossbones on the bags, and warnings from the government the farmers began feedlog, the grain to their poultry and cattle. Apparently Iraqi citizens used the seed In their breadmaking, and marketed the meat of livestock fed with the mercury seed. Con- taminated meat thus found its way to the market, despite the ban placed by the govern- ment on the sale ofinfected livestock.

"No precise account of the damage isavailable, but Indications are that the 'known' death toll reached at least 400 and that 5,000 others were admitted to hospitals for treatment. Unofficial estimates indicate that at least 50,000 persons might have been afflicted, many of whom lived In remote areas out of hospital reach.

We can see no way in which the proposed amendment could have averted the Iraqi incident. We have been assured that the Iraq Government was advised that such treated seed had been banned in this country because of the hazard butInsisted that they wanted such treatment anyway. Moreover, it was not the importation of a 'pesticide" as defined in H.R. 10729 that caused the incident and so we see no way that any restrictions on export of pesticides could hove influenced it. Short of a world-wide rsetritlon on exports of highlydangerous pesticides by ull nations we see no way to avoid Iraqi-type tragedies.

"We do not believe it isnecessary to require by legislation that all primary documents pertaining to registration information, labeling, cancellation and suspension be furnished to other nations. We believe, however, that the notion of international cooperation is important. Permissive language which endorsed our present policy of notifying interested nations about important pesticides actions and congressional blessing foe furnishing, at coat, all requested non-privileged data pertaining to American registrations, would cer- tainly be an appropriate expression of this country's desire to cooperate with other nations.

"H.R. 10729, as passed by your Committee, does not provide any mechanism for ob- taintng information concerning the extent of export activity or data concerning the nature of exported products. By setting up an export corporation, it is possible to insulate from section 8 inspection all books and records pertaining to export. We do not consider it necessary to furnish on a compulsory basis test data on all pesticides marketed solely for export. Discretionary authority to request such information and receive data concerning theextent of export activity would be more appropriate. "Sincerely yours, ' t5AVIDD. D~OINstncK."

3It is not clear to what extent there is overlapping in the 6,000 notices mentioned here. the 2,000 notices mentioned in the second paragraph of the July 25 letter, and the 1,347 notices mentioned in the third paragraph of the July 25 letter. If therewere no overlapping and EPA did in 1971 what it says it should have done, this would mean that the total number of cancellation notices sent out in 1971 would have been 9,347.34

COMMENTS OF THL COMMITTEE ON AGRICULTURE AND FORESTRY ON AMENDMENT NO. 6 OF THE COMMITTEE ON COMMERCE (CONFIDENTIALITY)



### Theprincipaleffectof thisamendmentis to denytheAdministrator informationessentialto hisdecisionasto whetherapesticide issafe andeffieacious.

This amendment would- (1) delete the Administrator's authority to request and obtain

a full description "of the tests made and the results thereof upon whichthe claims [for a pesticide] are based," and restricted him to "any tests offered" in support ofthe application (page 78, line25, through page 79, line 11) ;

(2) delete the provision requiring the Administrator to make
available to the public "within 30 days" after registration the
data called for in the registration statement and other relevant
scientific information, and require instead that he make available to thepublic "upon identifiable request" copies of any "communication, document, report or other information received by
the Administrator from any manufacturer or sent by the Administrator to any manufacturer" (page 80, lines 4 through 9, and
page 104. lines 3through 9) ;

(3) change the language of the trade secrets provision, increasing the possibility thatsuch secrets may bemade public with consequent loss to the owner (page 104, line 15, through page 106, line 18, and page 107, lines 1through 10) ; and

(4) require that any communication to any employee of the Environmental Protection Agency concerning a matter "presently" under consideration in a rulemaking or adjudicative proceeding be made part of the public file (page 106, lines 19through 26). This amendment would interfere with proper administration ofthe

act. The major purpose of the act is to protect the public from pesticides which are not efficacious or which endanger health or the environment. The Administrator should be able to request and obtain

a full description of the tests upon which claims for the pesticide

are based. He should not be restricted to such tests as the applicant
may choose to offer. There should be no question about this. The Administrator must make a decision, which is subject tojudicial review,

on the basis of the information available to him. For the protection of the public and as a simple matter ofreasonable administration, all relevant information should be available to him. In this respect, this amendment differs from a generally similar amendment (Amendment No. 1003) which was considered and rejected by the Committee on Agriculture and Forestry and is discussed below by EPA.

In amendment No. 1003, all test information would have had to be filed even though the Administrator had no need for it and made

no request for it. The proponents of these two amendments have gone to both extremes, but the Committee on Agriculture and Forestry believes the middle ground is correct; and its amendment provides the Administrator with all the information requested by him, but does
notburden himwith a mass ofinformation for which he has no need.

The Commerce Committee report at page 20 describes the portion ofits amendment discussed above as follows.

### The amendment modifies section 3 of the Agricultural Committee billbyrequiring, firstofall,that eachapplicant willsubmit
a full description ofany testoffered in support ofan application and the results thereof. Asspecified in paragraph 2of subsection (c), the Administrator will publish guidelines specifying the kinds of information which willbe required to support the regis- tration.What the amendment willdo isrequirethatthistest data, whether favorable orunfavorable tothe application,be submitted to the Administrator prior to registration. The Agriculture bill,
on the other hand, would allow the manufacturer to perform his tests and then hold back on submission of shaky data until a specific request by the Administrator for such data, requires release to the public, prior to registration, of all non-trade secret data ifrequested by any person. (italics added) The last sentence just quoted (disregarding thelast 19 words, which appear garbled probably through typographical error) is a complete distortion of fact.There isnothing intheAgriculturebillwhichwould allow the manufacturer to hold back on the submission of "shaky data" until a "specific request" is made, and this statement must be based on a misunderstanding of the bill. The Agriculture bill gives the Administrator the right to obtain all the data he needs to make his decision. The Commerce amendment limits him to "any test offered". Under theCommerce amendment the "manufacturer" (really applicant for registration) could "hold back on the submission of shaky data" because the amendment gives him that right, and all the "specific requests" in the world would not require him to "offer" it. The Agriculture bill does not contemplate a "specific request" except in unusual cases, but rather paragraph (2) of subsection (c) (page 79, line 22) requires the Administrator to publish guidelines specify- ing the kinds of information which will be required to support the registration of a pesticide. It then goes on to provide for specific requests ifhe finds he needs additional information. Paragraph (2) isbasedon the rightofthe Administratorto obtain information which would be stricken by the Commerce amendment. Paragraph (2) tells how that right to obtain information is to be exercised. It would be an unthinkable dereliction of duty if an Administrator, given these powers would "allow the manufacturer" to hold back "shaky data". It would not be a dereliction of duty if the Commerce amendment
were adopted and such shaky data were heldback because theAdministrator would not be given the power to obtain all data.

Aspointed out above, this amendment appears tobe a modification of Amendment No. 1003, which would have required all test information to be filed even though the Administrator had no need for it and did not request it. It may be that the Commerce Committee intended its current amendment to have the same,rather than an oppo- site effect. If so, it may be well to give an example to illustrate why the Agriculture Committee's provision provides only for the submission of information requested by the Administrator.

Let us assume that Pesticide X is currently registered for use in controlling 20pests on 17 kinds oftrees. Research has been conducted
over a period ofmany years bygovernment agencies, universities, and others. The registrant has conducted many tests and all tests show

### that Pesticide X is one ofthe safest pesticides registered and hasno substantial adverse effects on the environment. All of the registrant's test data has been submitted to EPA in connection with the existing registration. Now the registrant finds that Pesticide X is efficaceous

on an additional pestor tree and applies for registration to cover the
new use as well as the existing use. The Administrator has all dataon theprevious tests.He is interested only indetermining whether Pesticide X is safe and efficaceous for the additional pest. To require the applicant to submit with the new application all of the data he submitted with earlier applications would be a needless expense to the applicant and make the Administrator's work more difficult.The test data to support a single application may be very heavy and volumi-
nous. The 

## Committee on Agriculture and Forestry has been advised that the material which was submitted with the application for regis- tration of Baygon, which was described as a typical example, was 44 inches high, weighed 125 pounds and required postage in the amount of $70.44. This did not include costs ofreproduction.

The imposition of needless costs of this sort make it uneconomic for manufacturers to register pesticides for use on minor crops or pests. This is a very serious matter for producers and consumers of these crops and persons who must combat these pests. A number of examples of this problem are set out in the discussion in thisreport ofCommerceCommittee Amendment No. 12.

Another way in which the amendment would hamper effective ad- ministration would beto subject each communication betweenthe Ad- ministrator and a manufacturer to instant review by any self-ap- pointed expert or competitor who desired a copy. The Committee on Agriculture and Forestry has no objection to proper surveillance by the public. The bill reported by thatcommittee provides for adminis- trative and judicial review at the initiative of any person adversely affected bv the Administrator's decisions asto whether ornot to regis- ter. cancel or suspend registration, change theuse classification, or impose additional restrictions on the use ofa pesticide. It also provides that all data called for intheregistration statement and allother scientific information relevant to the Administrator's decision to register a pesticide mustbe made available tothepublic within30 daysafterreg- istration. This provides adequate public surveillance of the Adminis- trator's action,but givestheAdministrator anopportunity tocarry out his responsibilities in a reasonable way without constant harassment from people whodesire acopy ofeachtelephone call orletter from the Administrator to any manufacturer or from any manufacturer tothe Administrator on a day-to-day basis. The committee also does not understand why the amendment would subject in section 10(a) com- munications between the Administrator and manufacturers on any matter to instant publication, while leaving communications between the Administrator and others that are directly concerned with pesti- cide registration, efficacy, and dangers free from public scrutiny. Is one group ofcitizens thought to be more or less honest than another group?

With respect to disclosure of trade secrets, the amendment of the Committee on Agriculture andForestry would permit such disclosure "when necessary tocarry outtheprovisions of"theAct (page 104, lines19 and 20). The amendment of the Committee on Commerce would greatly broaden the grounds for disclosure oftrade secrets. Thus they might be disclosed to any Federal official requesting them for official

use and having a "reasonable need" therefor, or to any committee of Congress having jurisdiction over the subject matter to which the information relates (page 105, lines 10through 16). These trade secrets which now are protected and which may have great value, would have much less protection under the Commerce Committee amendment. These property rights should not be lightly disregarded, unless there is some compelling need fordisclosure.

The amendment oftheCommittee onCommerce would require every communication from any person to any employee of the Environmental Protection Agency concerning amatter "presently under considera

### tion" in a rulemaking or adjudicative proceeding tobe madea part of the public file (page 106, lines 19 through 26). This would constitute

an unnecessary burden on the files and on administration. For instance, inconnection with theconsideration ofthepending bill, this committee requested an employee of EPA to furnish it with section 164.31(a) of the then proposed rules of procedure referred to on page 17 of this committee's original report on the bill. There was some discussion of 

### the proposed rule at the time ofthe request. If "presently under con- sideration" isconstrued to mean "then under consideration," this com- munication would be required to be made a part of the public file, constituting a burden on the administrative process. If "presently 

### under consideration" is literally construed to mean "under consideration on the date of enactment of the Federal Insecticide, Fungicide, andRodenticide Act," this partof the amendment would probably be
a nullity.

It should be noted thatportions ofthe amendment would appear to extend to all operations of EPA and not to be limited to operations under this bill. EPA's comments on a somewhat similar amendment (which, however, provided for submission of all data instead of only that on "any tests offered" and which was considered andrejected by the Committee on Agriculture and Forestry) are as follows:

2. AMENDMENT NO. 1003

The amendment would make submissionto theAdministra

### tor ofsafety and effectiveness test data byevery registration applicant mandatory; permitpublic accesstonon-trade secret data in supportof a registration application onceit hasbeen submitted to the Administrator (and before he hasmade his determination) and could beinterpreted to leavethe determination of what constitutes a trade-secret with the applicant rather than with the judgment of the Administrator. The amendment also specifies those personsto whom atrade secret may berevealed.

As drafted, this amendment would also require the holder of a registration to submit his entirefile with a new applica- tion, evenifhis only point were toseek approval to usea registered productonarelated crop orpest.

### 38 Requiring the submission oftest data with every registra- tion application isunnecessary sincethisagency inmany cases already has sufficient information to make a judgment con- sistent with the purposesof the act. Wetherefore donotrec- ommend enactment ofthis provision, andendorse retention of thepresentconcept insection3 (c) (1) (D).

We also do not concur with the amendment which would provide public accessto registration application information before a registration decision by the Administrator. Since access could lead tointerminable delay of theentire registra- tionprocess.

We are promulgatingnew rules which establish procedures under whichan interestedperson can seek reviewofaregistra- tion if new evidence bears on itor the registration is incon- sistent with present agency policy and the chemical in ques- tion is a significant problem. We feel that the public under present law and the proposed bill would have, in accordance with those rules, all necessary and reasonable access toregis- tration decisions.

We believe the language in section 10 of H.R. 10729 with regard to the protection oftrade secrets and other informa- tion is preferable to that proposed by amendment No. 1003. The provisionsofH.R. 10729 providethat in submitting data required by the act, the applicant may mark any portions of it which he believes are trade secrets orconfidential commer- cial orfinancial information. It istreated as such ifthe Ad- ministrator in hisjudgment concurs with the opinion ofthe applicant.

The last part of amendment No. 1003 states the terms and conditions under whichtrade secrets may be disclosed. While data which is determined to be a trade secret may not bere- vealed on request, this amendment establishes six instances where trade secret information may be opened to public scrutiny. As drafted, we feel the amendment istoo broad. We 

### suggest the following language in lieu of the pertinent pro- vision of theproposed amendment:

"(b) Diselosure.-If requested by a registrant or appli- 

### cant for registration furnishing such information, the Ad- minist-rator or any officer or employee of the Environmental Protection Agency shall not disclose any information which contains or might reveal information referred to in section 1905 ofthe title 18 ofthe United States Code, and is other- wise unavailable to the public, except that such information may be disclosed- "(1) to other government officials; "(2) to duly authorized committees of Congress; "(3) in camerain any judicial proceedings if ordered 

### by a court;

"(4) in cameraif relevant in any proceeding under this Act to carry out the purposes ofthis Act; and

"(5) to offer officers and officials concerned with car- rying out the Act."COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRY ON AM1ENDM1ENT NO. 7 OF TilE COMMITTEE ON COMMERCE (CITIZENS SUITS'

In brief,this amendment (page 119, line 21 through122) provides for citizens' suits incertain casesfor injunctive relief, attorneyand expert witness fees, andothercosts of litigation.Suich costs could be awardedtoanypartywheneverthe courtdeemed appropriate without regardto whether ,tch partyprevailed in thesuit.Misuseofregistered pesticideswould notbe enjoinable,althoughthe Commerce Committee reportwould indicatethat it teas intended to be enjoinable.

This amendment may encourage suits by professional litigants and interfere with the orderly administration ofthelaw. The Constitution provides that the executive power should be vested inthe President. The courts are already overburdened withjudicial responsibilities, so that criminals now go untried and unpunished for long periods. The courts should not be further burdened with suits by citizens who di,- agree with the manner in which the President is executing the laws.

The bill as recommended by the Comnittee on Agriculture and Forestry affords adversely affected parties with an opportunity for administrative and judicial review of decisions with respect to registration, cancellation, suspension, classification, and the imposition of additional restrictions. There is no need for the additional involvement of citizens in the administration ofthe law provided for by this amendment.

There is also considerable danger in this provision. The filing of baseless claims and harassing suits is not unknown. Unprincipled litigants might be given an opportunity to extort money from regis- trants through settlement of suits on payment of expert witness and attorneys fees, or throughthreats ofsuch suits.

The Committee on Agriculture and Forestry believes that only very bad administration will result if every communication between theAdministrator and a manufacturer must be immediately madepublic and if every citizen can harass the Administrator with suits for injunctions. The Agriculture Committee bill already permits any citizen to initiate cancellation proceedings, obtainjudicial review ofevery action

or inaction lie disagrees with, and intervene inevery proceedings; but the Administrator must be given some time to administer, the em- ployees must be given some time to do their work. They should not be attending one court or another every day. Because of itscomplexity and the problems involved, the bill would be madeeffective gradually over a four year period. This provision would add to that complexity.

While the statement at page 41 of the Commerce Committee report would indicate an intention that citizens' suits could be brought to enjoin any violations of "(4) the prohibition against misuse of a pesticide" the amendment applies only to misuse of an experimental use pesticide under section 12 (a) (2) (H). Misuse of registered pesticides, which is prohibited by sections 12(a) (2) (F) and 12(a) (2) (G) would not be subject to citizens' suits. The Commerce Committee report does not indicate on what basis it selected which violations should be subject to citizens' suits and why violations of the misuse of registered pesticides should be exempt from this provision.

EPA's comments on a similar amendiment which was considered and rejected bythe Committee on Agriculture and Forestry are as follows:40

10. AMENDMENT NO. 1011

The amendment would insert a new section 17, "Citizen Civil Actions", which would provide for citizen suits against any person, including any Government agency, upon an alleged violation of the act; and against the Administrator upon his alleged failure to perform any required, nondiscretionary actor duty underthe act.

While there wasnoprovision forcitizen suits inthe Administration's bill, we would not object to such an authorization here under the following circumstances. We feel strongly that it should be limited to suits alleging violations only against users and producers. We also feel that such actions should be required to be brought initially where the alleged violation has occurred, and that express provision should be made for consolidation in appropriate circumstances. Language to accomplish this is set out in the enclosed marked-up version ofAmendment No. 1011.

AMENDMENT NO. 1011

AMENDMENTS Intended to be proposed by Mr. Hart (for himself and

Mr. Nelson) to H.R.10729, an Act to amend theFederal Insecticide, Fungicide, andRodenticide Act, and for otherpurposes, viz.: On page 50,between lines 15 and 16, insert a new section as follows:
"SEc. 17. CITIZENS CvIL ACTIONS.

"(a) Except asprovided in subsection (b), any person may commence a civil action for injunctive relief on his own behalf, whenever such action constitutes u case or con- troversy- "(1) against anyproducerorapplicator ofapesticide (including (A) the United States, and (B) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to bein violation of any regulation, order, condition of registration, or other requirement underthisAct or,

"(2) against the Administrator where there is alleged

a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator.

Any actionunderparagraph(a) (1) ofthis subsection shallbe broughtin the districtcourt for the districtcourt for the districtin which the allegedviolation occurred anyactionbroughtunder paragraph(a) (2) ofthis subsection shall be brought in the district court of the District ofColumbia. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties,

oversuits brought underthis section. "(b) Nocivil action may becommenced- "(1) undersubsection (a) (1)-

### 41

"(A) prior to sixty days after the plaintiff has given notice ofthe violation (i) totheAdministrator and (ii) to any alleged violator of the regulation or order,or

"(B) if the Attorney General [Administrator] commenced and is diligently prosecuting a civil action in a court ofthe United States torequire compliance with the regulation or order, [but in any such action any person may intervene as a matter of right,] "(2) under subsection (a) (2) prior to sixty days after the plaintiff has given notice of such action to the Administrator. Notice under this subsection shall be given in such manner
as theAdministrator shall prescribe byregulation.

"(c) In any action under this section, to which the United States is [the Administrator, if] not a party, the Attorney General,at the requestof the Ad'oinistrator, may intervene

on behalfof the UnitedStates as a matter ofright.

"(d) The court, in issuing any final order in any action brought pursuant to subsection (a) ofthis section, may award
costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court detenmnes such an award is appropriate.

"(e) Nothing in this section shall restrict any right which any person (or class of persons) may have under any other statute or under common law to seek enforcement of any regulation or orderor toseek anyother relief.

"(f) For purposes of this section, the term 'person' means any individual, corporation, partnership, association, State, municipality, orpolitical subdivision of aState."

" (g) When any actionsbroughtunder this subsection involvring thesame defendant and the same issuesof violations

arepending in two or norc jurisdictions,suchpeudingproceedings, uponapplicationofthe defendantseasonablymade
to the courtofone such jurisdiction,shallbe consolidated for trialb orderof such court,and triedin (1) any districtselectedIby the defendant where one of such proceedings is pending, or (2) adistrictagreedupon bystipulationbetween theparties.If no order for consolidationis so made withina reasonabletime, the defendant may apply to the courtofone such jurisdiction,and such court (after gieig allparties reasonable notice andopportunityto be heard) shallby order, unless good cause to the contraryisshown, specify adistrict of reasonableproximity to the applicant's principalplaceof business,in which allsuchpendingproceedingsshallbe consolidated for trialandtried.Suchorderofconsolidation shall
not apply so as to require the removal of any case the date for trialofwhichhas beenfixed. The courtgrantingsuch ordershallgive prompt notificationthereofto the othercourts having jurisdictionofthe casescoveredthereby." Renumber the remaining sections of the bill accordingly.COMMENTS OF THE COMMITrEE ON AGRICULTURE AND FoRESTRY ON AMENDMENT No. 

## 8 OF THE COMMITTEE ON COMMERCE (HEARING STRUCTURE)

In brief, this amendment would give to the Administratorunbarrantedauthorityto deny a registrantthe opportunity for afull hearingpriortocancellationofhisregistration.

There does not appear tobe any particular need for this amendment (page 96, lines 1 through 20). The Commerce Committee report describes this amendment, which deals with cancellation hearings, as follows: The amendment of the Committee on Commerce would give the authority to the Administrator to structure such hearings in a matter (sic) he deems advisable. Thus, depending on the nature of the hearing, the hearing would be informal with presentation of oral and written statements only

or the hearing could be formal with full rights of cross ex- amination of witnesses and subpena power. The amendment also provides that any interested person may intervene in such proceeding and participate fully as a party. The discussion in the Commerce Committee report (pages 23 through 26) concerning "rulemaking" procedures, the peanut butter proceeding, and the foods for special dietary uses proceeding is not relevant to its amendment, which deals with cancellation of a specific registration, rather than general rulemaking.

A somewhat similar amendment, which, however, differed in some respects, was rejected by the Committee on Agriculture and Forestry after reviewing the followingcomments ofEPA.

5. AMENDMENT No. 1006 The proposed amendment would emphasize the right of any interested person to participate as a party to any hearing requested following an order of the Administrator can- celling a registration. The amendment would also authorize the Administrator to impose conditions or limitations on the hearing.

We agree thatany interested person should be able to inter- vene in a hearing. This is the practice under the present law and that practice is, we believe, carried forward by H.R. 10729 and no further language is necessary. The present sec- tion refers to "objections by applicants or other interested parties." Indeed, our proposed rules of practice make clear the rights and status ofintervenors.

The deletion by Amendment No. 1006 of the provision authorizing the Administrator to determine suasponte that a hearing should be held is undesirable as is deletion of the provision governing issuance of subpoenas by the Hearing Examiner to compel testimony. We view both as important
means for theresolution ofissues involviiig pesticides.

One further aspect of this amendment is undesirable. As drafted it might compel a hearing on anyflndivg made by the Administrator. For the purpose of delay a party might seek to challenge immaterial findings.43

COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRy ON

AMENCMI.NT 

### No. 9 OF TIlE CO-MMITTEE ON COacrSIFRCE (INCLUSION O FARMIWOwRERS IN TERM "lIAN")

At best, this amendment is meaninglesssurplusagemaking it clear thatfarmers,farntcor'kers. and others coining into contactwith pesticides andpesticides residuesare includedwithin the term "man".At worst, it would (1) prohibitrelianceon certain testdata to deny registrationofdangerouspesticides,and (2) weight registration decisions in favoi ofDDTas opposedtomethylparathion.

This amendment would specifically require pesticide labelingto bear directions and warnings to protect farmers, farmworkers, and others coming into contact with pesticides or residues (page 72, lines 2 through 5 and 11 through 13) ;prohibituse oftestdata unless the tests

were legal andthe voluntary exercise of an informed choice (page 79, lines 11 through 17) ; specifically mention danger to farmers, farmworkers, and others coming in contact with pesticides or residues as a ground for restricted use classification (page 83, lines 21 through 23) ; and specifically require certified applicators to have the ability to guard against such danger (page 86, line 22, through page 87, line 2). The Committee on Agriculture and Forestry rejected this amendment

as surplusage. The entire purpose ofthebill is to protect man and the environment. There isno question but that farmers and others coming in contact with pesticides or residues fall withinthe category man. The Committee on Agriculture and Forestry, at page 14 of Report No. 92-838, took occasion to eniphasize that thebill requires the Administrator to require that the labeling and classification of pesticides be such as to protect farmers, farmworkers, and others coming in contact with pesticides or pesticide residues as follows:
1. A number ofwitnesses recommended amendments to specifically require the labeling to bear directions and warnings
to protect farmers and others coming into contact with pesticides orresidues; prohibit use oftest data unless thetestswere legal and voluntary; specifically mention danger to farmers and others coming in contact with pesticides or residues as a ground for restricted use classification; and specifically require certified applicators to have the ability to guard against such danger. The bill, as reported by the committee, provides complete safeguards toprotect farmers and others coining into
contact with pesticides or residues. It does so in general terms that are very broad and cover much more than would be covered bytheproposed amendments. The committee felt thatby specifically mentioning particular areas protected by thegeneral provisions,there might be some suggestion that the general provisions should be construed tocover less than actually intended. Section 2(j) of thebill defines environmentt" to include allmen, whether they come into contact, with the pesticides or pesticide residues, or not. Section 2(q)(1) (F). (G), and (H), and 3(c) (6) (C) are designed to protect all

men. The committee believes there can be no question about the matter, but takes this occasion to emphasize that the bill requires the Administrator to require that the labeling andclassificationof pesticidesbe such as toprotect farmers, farmworkers, andothers coming incontact withpesticides or pesticide residues. The Committee on Commerce agrees with the Committee on Agriculture and Forestry that this amendment is surplusage when it says inits report atpage 27:
While the Committee on Commerce agrees with the Environmental Protection Agency and the Committee on Agriculture and Forestry that the health of farmworkers will be considered without the amending language, the Subcommittee on the Environment heard substantial testimony that the health of farmworkers mightindeed notbe fully protected under existing law.
The Committee on Commerce, the Committee on Agriculture and Forestry, and the Environmental Protection Agency are all,therefore, in agreement that under theAgriculture Committee amendment farmworkers will be protected. The fact that there was testimony they might notbe protected underexisting law isno reason for adding surplusage to the Agriculture Committee amendment.

The farmer and the farmworker are the persons most likely to be adversely and immediately affected by pesticides and they are the
most obvious object of the bill's protection. If there is any question

as to whether they are fully protected, we do not know what it could be. It may be that the Commerce Committee intends that farmers and farmworkers should be protected to a greater extent than other members ofthe family ofman and the Commerce Committee report suggests atpage 27 thatthis isthe case when it says, "In adopting theproposed amendment, the committee intends to stress the health offarmworkers as a vital criterionin the actions of EPA under this act" (italics added).

What is meant by "vital criterion"? Mr. A. V. Krebs, who is cited at page 27 ofthe Commerce Committee report as its authority for this amendment tells us what this means at page 318 ofthe hearings before theCommittee on Agriculture as follows:
It is imperativethatno pesticide be certifiedby the EnvironnntalProtectionAgency unles" it is absolutelysafe for

a-se by those who niust work with or around it. (Italics added.)
In looking for an example to see whattheeffect ofmaking the farmworker's health avitalcriterionmight be, DDT immediately comes to mind as the classic example. DDT has not been shown to be especially harmful to farmers or farmworkers. It has been found to be toxic to fish and other lower animals and tobuild up in man. It is not known whether it is injurious toman or not. The Administrator has canceled the registration of DDTeffective December 31, 1972, pointing out that methyl parathion presents an effective alternative manner of dealing with pests. But lie has delayed cancellation until the end of the year because of the danger ofmethyl parathion to farmers and farmworkers. If the health of farmworkers is now to be made a vital criterion, that would appear to weight the scale in favor ofregistration ofDDT in preference toregistration ofmethyl parathion.

### Further recognizing that this amendment is generally surplusage, the Commerce Committeereport statesat page 27: The Committee amendment makes one substantive change. Theamendment provides thatEPA shall notrely on anytest results unless he determines that the tests were conducted in accordance with Federal, State, and local law and that the human participation in any such testwas the result ofa free, voluntary, andinformed choicebyeach participant. The Commerce Committee report does not say what the objective of this provision is. Involuntary tests would be violations of civil rights and the subject of protection under Federal and local law. It seems highly unlikely that involuntary tests would be conducted intentionally. However, data may be acquired as the result ofaccidental involuntary tests, resulting from climatic conditions, spillage, other accident, improper calibration ofequipment, and otherwise. Thus, studies of hospital admissions for pesticide poisoning might contribute to the Administrator's knowledge ofpesticide sa ety. If such accidental tests should show that a pesticide will not perform its intended function without substantial adverse effects on the environment or that it is actually misbranded, the Administrator should be able to rely
on that information to deny registration ofthe pesticide.

Thisamendment was proposed tothe Committee onAgriculture and Forestry, but no evidence was presented of any need therefor or to indicate that any involuntary tests had everbeen conducted. One wit-
ness testified that, "Two major U.S. chemical companies performed pesticide experiments in California using farmworkers as 'human guinea pigs'." While this might suggest that they were involuntary guinea pigs, the same witness stated, "We were told that they were paid a fee of$3.50 foreach bloodtest theytook andalsothat theywere instructed that they had to participate in all the tests to qualify for theblood bonusmoney." These statements appear at pages318 and 319 ofthiscommittee'shearing onH.R. 10729. The samewitness, Mr.A.V. Krebs,who is cited bythe Commerce Committee report on page 27 as theirauthority onthisamendment, insertedthe following, atpage 325, to show what is meant by "free, voluntary, and informed choice": 2. Potential participants should be free from even the hint ofcoercion, direct orimplied, real or imagined. Totheextent that subjects in the studiesto date have received any orientation, it has been provided by Spanish-speaking intermediaries. Almost all participants have been natively Spanishspeaking. This is acceptable, in view of the fact that most farmworkers in California are ofMexican descent. But itbe-

comes unacceptable when the intermediary who translates is not competent to explain technical concepts such as cholinesterase function, depression, and regeneration. And the practice is most unacceptable ofall when this lay interpreter stands in an employer-employee relationship with the potential participants.

It should be understood-although itis usually not understood-that the relationship ofgrowers,contractors, foremen, and supervisors to Spanish-speaking farmworkers isnot likethat of any other labor relationship in this State, with the possible exception of garment factories in San Francisco's
Chinatown. Mexican agricultural workers come from a cultural heritage in which the wishes ofthe patron are not tobe questioned. It is widely assumed among these workers that if

one displeases the crew leader ineven the slightest particular,

one can be discharged on the spot with no recourse. And, indeed, this often is true. Almost none of the workers in the

crops we are concerned with here-the tree crops where pesticide problems usually occur-are effectively protected against the arbitrary exercise of power by supervisors. Under these circumstances, there cannot be true freedom of
choice on the part of potential research subjects. If a crew leader says, "Well, boys, you don't have to do this, but it's something theboss isinfavor of * * *," some ofthe members
ofthe crew are goingto assume that it is something they had
better do if they wish tocontinue working on that particular job. Many millions of dollars worth of test data will be disqualified if

every participant must be free from "imagined" coercion and in fact
the matter just quoted says that "there cannot be true freedom of
choice on the part of potential research subjects" under present supervisor-worker relations in tree crop production. It is doubtful whether any member of the staff of the Committee on Agriculture and Forestry could qualify as a test participant if he had to understand "technical concepts such as cholinestrase function, depression, and regeneration." In fact, it is doubtful whether any Englishspeaking member of that staff could repeat the phrase just quoted. Officials of the chemical companies involved stated at page 346, "the workers who volunteered to participate * * * were interviewed by a physician * * *" and at page 347, "Additionally, each worker was given a written explanation of the procedure and his written consent and understanding obtained." One ofthese officials stated at page 346, "we voluntarily canceled our registrations of all ethion wetable powder products in California following our study because ofthe drop in pseudocholinesterase activity followingtheir use." It would have been unfortunate if he had notbeenable to relyon thesetests.

If the Administrator should learn from these tests or other tests that a product is dangerous to human beings to such an extent as to
warrant denial of the registration, he should not be forced to close his eyes to that knowledge simply because some participant could not prononce or did not fully understand pseudocholinesterase, or becausethe testswere conducted on Sunday or were otherwise conducted in violation of local law.

COIIENTS OF TIE COMMITTEE ON AGRICULTURE AND FORESTRY ON AMENDMTENTNO, 10 OF THE CO)IflITrEE ON COM_1_MERCE (AUTHORITY OF LOCAL

GOVERN MENTS TO REGULATE TIE USE OF PESTICIDES)

In brief, thisamaendnent (page 129, lines 14, 15, 16,and18) would give local qor oern/s the authorityto regulate the sale or u.se of a pestn-ide.It. purposeis to vitiatethe language containedin the reportof the Committee onAgricultureandForestry,ReportNo. 92-838,at page 16as follows:
4. The Senate Committee considered the decision of the House Committee to deprive political subdivisions of States and other local authorities of any authority or jurisdiction

over pesticides and concurs with the decision ofthe House of Representatives. Clearly, the 50 States and the Federal Government provide sufficient jurisdictions to properly regulate pesticides. Moreover, few, if any, local authorities whether towns, counties, villages, or municipalities have the financial wherewithal to provide necessary expert regulation comparable withthatprovided bythe State and Federal Governments. On this basis and on the basisthat permitting such regulation would be an extreme burden on interstate commerce, it isthe intent that section24,by not providingany authority topolitical subdivisions and other local authorities of orin the States, should be understood as depriving such local authorities and political subdivisions of any and all jurisdiction and authority over pesticides and the regulation of pesticides.

C03IMENTS OF THE COMMITTEE OF AGRICULTURE AND FORESTRY ON AAIENDMENT NO. 11 OF THE COMMITTEE ON COaIMERCE (SUSPENSION)

In brief,this vould (1) providefor judicial review in appellate
courts even where there had been no prioradministrative hearing, and (2) preclude the registrant frompresenting auy evidence in his

ownbehalfin certaineases.

This amendment would- (1) deprive a registrant of the right to an administrative hearing before suspension ofregistration which would be accorded to him by the Agriculture Committee bill in cases where there is no emergency which would require suspension without a hearing (page 93, lines 1 through 23) ;

(2) give "any interested person" the right to intervene, participate fully as a party. and subpena documents if the Administrator should decide to conduct a hearing before suspending registration (page 94, lines 3through 7, and page 92, lines 17through 21) ;

(3) provide in all cases forjudicial review by an appellate court, even though there has been no prior hearing to determinethe facts (page 94, line 

### 23, and page 95, lines 3 through 15;

(4) deprive a registrant of any opportunity to present evidence in a suspension proceeding (even on judicial review) where there has beenno administrative hearings-by restricting the court to consideration of "the relevant documents of which his [the Administrator's] record is comprised" (page 118, lines 22 and 23).
The Commerce Committee amendment provides for an illusory type of review in the case of suspension proceedings in that it gives the registrant a right to judicial review but allows him to present

no evidence in his behalf.Thus, theAdministrator may suspend regis-tration without a hearing. The registrant may appeal that suspension
to the court of appeals. In deciding this appeal, the court may look only at the relevant documents of which the Administrator's record is comprised. This creates the appearance, but not the substance, of judicial review.

The Commerce Committee report, after pointing out that under the Agriculture Committee bill, "The Administrator might be forced to defend himself in court on the question of (1) emergency suspension, (2) suspension following a hearing, and (3) cancellation, all with respect to his efforts to remove one pesticide from the market," describes its amendment asfollows at page 28:
"The amendment gives EPAthe authority, if necessary to prevent an imminent hazard, to suspend without a hearing

or after an expedited hearing if more information needs tobe gathered. However, the amendment provides for a single review of the suspension question. Thus, the number of decisions EPA may have to defend against proponents ofa given pesticide registration is reduced from three to two."
This statement is not correct and is apparently based on misunderstanding by the Commerce Committee ofits amendment. Its amendment does not provide for a single review of the suspension question,

nor does it reduce the number of decisions EPA may be forced to defend. If anything, it does the exact opposite.

If registration were suspended without a hearing, then under either the Agriculture Committee bill or the Commerce Committee amendment the registrant could appeal. If his appeal were successful, then under eitherthe Agriculture Committeebill or the CommerceCommittee amendment the Administratorcould proceed to a hearing to determine whether suspension was appropriate. If, as a result ofthat hearing, the Administrator decided to suspend registration then under either the Agriculture Committee bill or the Commerce Committee amendment the registrant could obtainjudicial review. In the meantime, under both the Agriculture Committee bill and the Commerce Committee amendment the Administrator would be conducting can- cellation proceedings. If at the end of those proceedings the Adminis- trator decided to cancel registration then under either the Agriculture Committee bill or theCommerce Committee amendment the registrant could proceed to seek judicial review.

Actually, the Commerce Committee amendment provides for additional times in which judicial review could be sought which are not provided for by the agriculture bill. On page 95, line 11, the Agriculturebill provides inthecase ofjudicial review of a suspensionorder entered without a hearing as follows: "The effect of any order of the court will be only to stay the effectiveness ofthe suspension order, pendinghearingbefore the Administrator." This provision would be stricken by the ommerce Committee amendment so that innumerable reviews are possible under the Commerce Committee amendment but notunder the Agriculture Committee bill.Thus, under the Commerce Committee amendment the Administrator could suspend registration without hearing. If the court found that the Administrator's file did not justify suspension, the Administrator could obtain additional information and again without a hearing suspend registration. The Com-

merce Committee amendment permits this without limitation. TheAgriculture Committee bill would permit only one suspension without
a hearing. If that suspension were overruled, the effectiveness of the suspension would be stayed until a hearing was conducted by the Administrator.

The question of judicial review was a matter of great concern and study to the Committee on Agriculture and Forestry. The subcommittee that studied this matter at great length felt that it was a matter of such complexity that all the various proposals on the subjectrequired the full deliberation of the full committee. It therefore passed this question, along with three other amendments, to thefull committee for its determination. The matter was under constant study by the Environmental Protection Agency while the committee was examining it and finally a compromise proposal was worked out by the committee and the Environmental Protection Agency which the committee and EPA regard as fair to all.

The original report of the Committee on Agriculture and Forestry describedthe situation as follows atpage 11:
"Four amendments were passed for submission to the full Committee for its deliberation without subcommittee recommendation as follows:

"Amendment 1, would authorize third parties to petition for cancellation or suspension and obtain judicial review. There were three alternative proposals: "(A) NACA proposal would make registration prima facie evidence ofcompliance for all purposes, provide for cancellation in contested cases only on the basis of scientific data not considered at time of registration, strike the provision for hearings intiated by the Administrator, and provide for judicial review in such cases in thedistrict court;

"(B) Hart-Nelson Amendment No. 1010 provided for review in such cases in the circuit court, prohibited stay of an agenc action unless the party seeking the stay was likely toprevail and would suffer irreparable harm;

"(C) EPA proposed appeal to the circuit court and indicated that the Hart-Nelson provision for a stay duplicated that already in the bill. EPA recommended

an alternative version. and at page 12:

"WithrespecttoAmendments No. 1 andNo.4the full Committee adopted compromise proposals as follows:

Thecompromise proposal for Amendment 1- "(a) makes registration prima facie evidence of compliance only as long as no cancellation proceedings are pending;

"(b) continues the present clear criteria (compliance with the Act) for cancellation proceedings;

"(c) provides for the initiation of cancellation proceedings either by notice of intent to cancel, or notice of intent to hold a hearing (so that the Administrator may have thebenefit ofmore information before lie decidesto cancel) ;

### "(d) provides for hearings on suspensions except in emergency situations;

"(e) provides for judicial review by the court of appeals in all cases where there has been an administrative hearing andby thedistrict court in all caseswhere there has notbeen an administrativehearing; and

"(f) makes it clear that any person who will be adversely affected by an order may obtainjudicial review. "Before adopting thiscompromise proposal,the Committee considered all of the numerous amendments submitted to clarify the procedure forjudicial review, third-party partici- pation inthe administrative decision-making process, andthe grounds which permit theAdministrator to cancel a registra- tion before a five-year period. The procedures adopted carry forward the language ofpresent law by which the Administrator cancels where asubstantial questionexists. Underpres- ent practice third-parties may request the Administrator to review new data and determine whether formal proceedings shouldbe commenced. The Committee action permits persons adversely affected to continue to be ableto request review of the status of a registration and adversely affected persons, like users, also to participate in the administrative process. The language "adversely affected" is in present law and the Committee has rejected the House language which refers to 'interested persons' so as toavoid any implication ofdesiring tochangepresent law.

"The Committee has determined that the Administrator should be able to call a hearing when he believes it useful rather thanissuea noticeofintentto cancel. Such aprocedure permits the Administrator to initiate formal review without placing a stigma on a product whenhe isnot convinced that theregistration should be cancelled. It also permits the Administrator toproceed withoutautomatically cancelling if no specific request for a hearing is received.

"After a hearing judicialreview on petition by any person adversely affected isproperly lodged inthe courtsof appeals, since an adequate record exists for such review. Where, however, theAdministrator has determined no substantial ques- tion ofsafety exists which warrants formal review, and thus has refused tohold a hearing, review should be by a district court since there is no record for the court of appeals.

"The Committee has also provided for expedited hearings onquestions ofsuspension sothat theprocedure will be analogous to cancellation. Where a suspension action is taken prior to a hearing, a district court could stay the suspension pending the Administrator's determination after a hearing exceptsuch stay shall bedissolved atthetime theAdministrator issues a decision. If, after the hearing, the Administratordetermines to suspend, the orderbecomes effective andany district courtrestraining order is dissolved, and the power to staythe Agency's order shall rest with thecourt of appeals." In short, the Committee on Agriculture and Forestry believes that matters which have not been heard before should go to courtsof orig-inal jurisdiction and appeals from cases which have already been administratively heard and decided should go to appellate courts. The question is really that simple. The Commerce Committee amendment upsets a compromise that had long been in development, and puts passage ofthisbill in jeopardy.

COMMNTS OF THE COMMITTEE ON AGRICULTTURE AND FORESTRY ON AMENDWENT NO. 12 OF THE COMMITTEE ON COMMERCE (AUTHORITY OF STATES
TOREGISTER PESTICIDES)

In effect, this amendment would deny States the rightto register pesticides (withEPA approval) tomeetpeculiar Stateneeds.Hawaii, Michigan,and Washingtonauthoritieshove d isedthe Committee on AgricultureandForestryof the "seriouseconomicproblem" they will befacedwith if thisamendmentisadopted.

This amendment strikes out a provision (page 129, line 22 through page 130,line 6) ofthe Agriculture Committee bill which would permit

aState toregister pesticides formulated fordistribution and usewithin that State to meet specific local needs if that State is certified by the Administrator as capable of exercising adequate controls and if registration for such use has not previously been denied, disapproved or canceledby the Administrator. Such registration would not be effective for more than 90 days if disapproved by the Administrator and the Administrator could suspend or cancel such registration in accordance with the provisions ofthe act. In lieu ofthis provision, the Commerce Committee would insert a substitute (page 130, lines 7 through 22) designed only to meet 'emergency" needs. Such registration would not be effective for more than 90 days unless extended by the Administrator.

The provision of the Agriculture Committee bill was designed to take care of a problem which the Commerce Committee amendment would not take care of. The problem is this. Pesticides are registered for particular pests for which research has proved that they are efficacious. They are also registered for particular crops. At present there isno restriction on the use ofpesticides. Consequently, for many years pesticides registered for use to combat one pest have also been used and found equally efficacious against other pests.

On the day that this bill is enacted it,will become illegal to use any pesticide in a manner that isinconsistent with the labeling. The Committee on Agriculture and Forestry worked with the Environmental Protection Agency over a period ofsome weeks to see if there wasnot

a better word than "inconsistent" but was unable to solve this problem. The original reportofthe Committee on Agriculture and Forestry discusses the problem of interpreting the word "inconsistent" at some length at pages 15 and 16. It states that it is not the intention of the committee to prohibit any use which is in no way harmful, and which has only beneficial effects on man and hisenvironment and it expresses the hope that by proper administration of the labeling requirements
and administrative interpretations ofthe law and the labels approved by him, the Administrator will be able tc make it clear to users that such uses are not prohibited. However, this is not a very satisfactory way to take care of the problem, especially where an entire industrywithin a single State may be plagued by a pest for which a perfectly adequate and safe remedy would be available but for the fact that the economic return from the pesticide for such use is not adequate to warrant the cost of Federal registration of the pesticide for such use.

VIEWS OF GOVERNOR BURNS OF HAWAII, MR. HENRY 

### M. GOODYEAR, JR.,

DIRECTOR, FEDERATED PECAN GROWERS OF THE UNITED STATES, DR. DONALD ISLEIB, SCIENTIFIC ADVISER TO THE DIRECTOR, MICHIGAN DEPARTMENT OF AGRICULTURE, AND MR. ERRETT DECK, AssISTANT DIRECTOR, WASIIINGTON DEPARTMENT OF AGRICULTURE
The problem is well described in the following letters from the Governor of Hawaii to Senator Fong and from Mr. Henry M. Goodyear, Jr., to Senator Talmadge and in the following excerpts from the testimony ofDr.Donald R.Isleib, scientific adviser tothe director, Michigan Department of Agriculture, and Mr. Errett Deck, assistant director, Washington Department of Agriculture (representing the National Association of State Departments of Agriculture and the Association ofAmerican Pesticide Officials) : EXECUTiVE CHAMBERS,

Honolulu,July 13,1972. 

### Hon. HIRAM L. FONo, U.S.Senate,NewSenateOffice Building,Washington,D.C.

DEAR HIAAM: It has been brought to my attention that H.R. 10729, Federal Environmental Pesticide Control Act of 1972, has been referred to the Committee on Commerce and several proposed amendnients have beenmade.

One major proposed change which will have an adverse effect on Hawaiian agriculture is the deletion of State authority to register pesticides for intrastate use.

Section 23(c) "Authority of States" in H.R. 10729 prior to change by Commerce Committee reads as follows:

"(c) A State may provide registration for pesticides formulated for distribution and use within that State to meet specific localneeds if thatState is certified by the Administrator as capable ofexercising adequate controls and if registration for such use has not previously been denied, disapproved, or canceled by the Administrator. Such registration shall be deemed registration under section 3 for all purposes ofthis act, but shall authorize distribution and use only within such State and shall not be effective for more than 90 days if disapproved bythe Administrator within thatperiod."

If State's authority for registration of pesticides for intrastate use is denied, Hawaii will be faced with a serious economic problem be- cause many of our crops are produced in very small quantities thus precluding chemical firms from clearing pesticides for use on minor crops.

Growers. when faced with pest problems in minor crops aretempted to use pesticides cleared for pest control on a related major crop. The consequences of the farmer failing to treat could be a serious economic loss. However. should lie choose to treat without assurance of safety then the presence ofillegal residues on crops could lead tolegal action and losses where no such problem would result from application

### 53
ofpesticides onmajor crops with similar characteristics. Werecognize unwarranted and unapproved uses of pesticides can have adverse effects on theenvironment and human health.

The total minor crop acreage is about 

## 1,100 acres, ranging from 8

acres of dasheen to 420 acres for taro. These minor crops generally
are grown for local consumption and foruse in ethnicdishes. Lossof these crops would necessitate resorting to costly alternatives of importing from the Orient or Polynesia similar crops with unknown

orquestionable history ofpesticide usage.

Presently, very few pesticides are cleared for use on such minor crops because manufacturers will not expend the large stuns ofmoney required to register a pesticide for a limited-scale specific crop use.

Therefore, States shouldbegiven theauthority toregisterpesticides foruseonminorvegetable andfruit crops.

Because of Hawaii's year-round growing conditions there is a con- tinuing buildup of agricultural and environmental pests including noxious weeds. Our sugar, pineapple, and beef cattle industries re- quire additional pesticides and modified uses of clearer pesticides to combat pests, many of which are not common to continental United States. States should be given authority to register additional or modified uses ofpesticides basedondata suppliedbyapplicant andre- view by State office of environmental quality control and other State agencies.

Your support and follow-through to provide for State authority to register pesticides for intrastate use would be appreciated.

Warmest personal regards. May the Almighty be with you and yoursalways. Sincerely, JOHN 

### A. BURNS.

FEDERATED PECAN GROWERS' 

### AssocITioNs OF THE UNITED

STATES, Albany, Ga.,January 18,1972.
Hon. HERMAN TALMADGE, 

### U.S.Senator, Senate OfficeBuilding, Washington, D.C.
DEAR SENATOR TALMADGE: 

### In a recent meeting ofplant pathologists atthe University ofGeorgia, the proposed pesticide bill, which is bill H.R. 10729, was generally outlined. The effects of this law might be disastrous forpecans, orany othersmall economic croptoday.

Pecans represent about $75 million crop nationally, and 

### $25 million 

### to Georgia. There are very few chemicals that are cleared for pecans, and no chemical companies, really, that are working specifically on pecan pesticide research. We have to use pesticides that are cleared forpeaches, apples,citrus,andothermajor agricultural crops.Many of the chemical companies will not take the time even to try to get their product cleared forpecans, due to the expense and limited market.

If it could be a criminal offense to spray with a chemical that is not specifically named for pecans, we could not maintain our orchards in thisarea.We would have to letthem revert backto what they were 10yearsago, andthiswould beeconomically catastrophic.For example, certain pesticides on the surface of an apple or peach could presentamuch greater danger potential than on a pecan shuck, since the nut isnever incontactwith thepesticide itself.

I would certainly appreciate hearing from you on this, and what this industry mightexpect inthe future. I realize this iscontroversial, andthe ecologists arenot veryagribusiness minded.The wholefarming community is indebted to you for your understanding of agriculture, and itsplace inGeorgia as well asthe United States. Sincerely yours, HENRY M. GooDYEAR, Jr., 

### Director.
Dr. Isleib (at p. 17 ofthehearings ofthe Committee on Agriculture and Forestry, et seq.) : Regarding our third point, preemption of the registration field, we have no wish to share with EPA or any other of the Federal agencies in the evaluation or decision regarding human health,toxicology, pharmacology, persistance, or basic environmental evaluations, but we certainly feel that wehave collective resources in our various State departments, the service ofthe State university, our health, natural resources, and water resources agencies which can adequately and well identify and judge theunanticipated or unique needs for pest control which occur in Michigan. We feel the authority as- sumed by the Federal Government inH.R. 10729 asproposed, istoo restrictive and we are not confident that the Adminis- trator will always be able to respond properly to localized pest problems.

We have some local threats to agriculture. We feel they are particularly serious in border States and States close by waterways used in international shipping. We are very pleased, after havinghad anopportunity to reviewthe Senate committee staff mark up, to see that a provision has been made toprovide for the States for registrations ofuses which
are unique totheir needs. My testimony includes a suggestion, to accomplish State registration but I am surethat my Direc- tor and the Commission of Agriculture would prefer the one suggested in the committee markup.

I would like to bring your attention to a couple ofunique situations which I think describe thepoint that I am making. We have in the Great Lakes a fishery that is being restored by massive efforts which include the control of the sea lampreywith a chemical, TFM.

The successful restoration of lake trout and the introduction of salmon species were possible only when the Depart- ment of Interior, working closely with our State agencies, was able to arrive at a successful lamprey control chemical. Once found, these agencies requested registration from the Michigan Department of Agriculture for the use of this chemical and the remarkable success of this undertaking is now reflected in a major sport fishery where none had previously existed.

We have time cereal leaf beatle, which is an invader from Europe first found in Michigan in 1962, and avigorous chemi-cal control program under the authority of the Michigan department delayed the spread of this pest while Michigan plant breeders embarked upon a program to find leaf beatle resistants.

However, termination of our chemical control program a few years ago was followed by a rapid spread ofthis pest to neighboring States as far west as Illinois and as far east as theAtlantic coast.The controlprogram we useddid notintroduce new pesticide use patterns or food residues. It simply extrapolated well-known properties of existing pesticides to

a new problem peculiar to us at that time. We feel that our response was correct and that we should continue to use our local expertise within the framework of the law proposed, H.R. 10729, to solve similar problems inthefuture.

Subsequent to theCommission's approval ofthat language, I have had a chance to study the language in the Committee print. If it meanswhat I thinkit means,I prefer thelanguage of the Committee print since it, in contradistinction to the proposed language I placed before you, would permit us to deal with the interesting cases ofthe swimmers' itch and the lamprey eel. Letme giveyou someexamples of whywe believe the Federal Government should not completely preempt the registration and regulation ofrestricted use pesticides.

Two unique situations ofspecial interest cometomind. Our Great Lakes fishery isbeing restored by massive efforts which include control of the sea lamprey with the chemical 3-trifluoromethyl-4-nitrophenol, abbreviated TFM. The successful restoration of lake trout, and introduction of several salmon species were possible only when the parasitic sea lamprey could be controlled. The U.S. Department ofInterior, Bureau of Sport Fisheries worked closely with the Michigan Department of Natural Resources to find a successful lamprey control chemical. Once found, these agencies requested registration from the Michigan Department of Agriculture, and the remarkable success ofthis undertaking isnow reflected in

a major sport fishery where none had previously existed.

The second unique situation involves control of swimmers' itch, a tiny water-living parasite which invades human skin and produces intense irritation. Water infested with swimmers' itch is not useful for any water-contact recreation. Through chemical control of a snail which is the alternate host of the parasite, this disease can be controlled and the waters restored to recreational use. Again, the U.S. Department of Interior and Michigan Department of Natural Resources combined with the Chemagro Corp. to find and use a safe, effective chemical for control of swimmers' itch. The Michigan Department of Agriculture and other Federal and State agencies pooled their resources to solve this unusual, local problem.

Let me cite the following examples of local problems for which solutionsand decisions arebest foundinStatetechnical

resources:

### 56

Cereal leafbeetle control on small grains. The cereal leaf 

# l beetle, Oulema melanopa,was found in Michigan in 1962. A vigorous chemical controlprogram under theauthority ofthe Michigan Department of Agriculture delayed the spread of this pestwhile Michiganplant breedersembarked on aneffort to incorporate cereal leaf beetle resistance in commercial wheat varieties. These varieties will become available in 1974
or 1975, after more than 10 years of diligent effort. We are also introducing biological control agents-tiny wasps which parasitize the pestbeetle. However, termination ofthe chemical control program a few years ago was accompanied by rapid spread ofthis pest to neighboring States to Illinois in 

### the west and the Atlantic coast to the east. The control program did not introduce new use pattern or food residues;it simply extrapolated well-known properties anduses ofexisting, registered pesticides to a new and sinister problempecu- liartoMichigan atthetime.With theadvantage ofhindsight, we feel that our response was correct by all standards, and we feel that we should continue to usethe technical expertise existing in Michigan to solve similar problems in the future.

The same pest, cereal leaf beetle, invades the bark of Christmas tree trunks. A quarantine prevents the spread of the pest to uninfested areas. We can sanitize these trees by using lindane as a postharvest spray-lindane is already registered for control ofrootcollar weevil onChristmastrees. There is no national need for our local registration, but in Michigan-the No. 1Christmas tree producing State in the Nation with a crop valued at $20 million annually-the need is acute. We think we should retain authority to extend an existing usetoanew or unique problem.

Other examples of pests in Michigan on farm or forests crops include the strawberry sap beetle, the strawberry clip- per, climbing cutworms, the white apple leafhopper, the plum curculio, the American plum borer, the red-humped oakworm, and the black vine weevil. Each of these presents a clear economic threat limited to Michigan. Our strawberry growers havelost up to 50percent oftheir crops, at acost of $2 to $5million annually, due toravages ofinsects forwhich no adequate, federally registered control now exists. We believe we have competence to solve these problems within the human health and environmental protection frameworks erected byFDA and EPA, but can do so only if weare given the authority.

We wouldn't seek to perform registrations at variance philosophically, environmentally, orintermsofhumanhealth with those imposed by EPA and in the case at point, and I think it istypical of the cases we would like to make, there is a registration which exists for the same chemical on the same crop but for a different insect and we think that to require a national registration to meet avery local problem- and we have a number ofthese local problems-is restrictive. Some additional examples are included in my testimony.Mr.Deck atpage 285: (4) Such local or minor uses as the control ofmud shrimp for development of oyster beds in Washington, the control of an aquatic pest for swimmers in Michigan lakes, the control ofhoneybees infesting some buildings,the control ofrattle snakes in u new irrigation district, the mixture of two herbicides for spinach seed, and control of pests on rhubarb will no doubt never justify Federal registrations. Without going into detail, State registration of intrastate labels has also allowed the control ofpests under emergency situations. Unless there is a complete reorganization of Federal procedures adjusted to the local level, or States are allowed to cope with these needs, there will be either an undesirable "tolerance" enforcement policy or serious problems for the chemical industry and agriculture. The examples given above are not necessarily emergency cases that could be cured in 90days. The amendment ofthe Commerce Committee simply does not take care of this serious problem on which the Committee on Agriculture and Forestry received many communications from various States.

The problem of taking care of these minor local problems will be further compounded by thetremendous work load thebill will impose

on EPA over the next four years. Citizen interest in administration, hearings, and judicial review can also be expected to slow up theregistration process and increase thebacklog.

COMMENTS OF THE COMtMITTEE ON AGRICULTURE AND FORESTRY ON AMLEND -

MLIENT NO. 13 OF TILE COMMITTEE ON COMMERCE (RECORDKEEPING BY PRIVATE APPLICATORS)

In brief, this amendment (page 107, lines13 through16) authorizes theAdmini.stratorto require farmers, farmworkers and otherprivate applicator' to mninttin record. andfile reportsor other documents. The Commerce Committee amendment strikes out section 11(a) ofthe Agriculture Committee amendment which provides as follows: (a) IN GENERAL.-No regulations prescribed by the Administrator for carrying out the provision of this Act shall require any private applicator to maintain any records or file any reports or other documents.
A private applicator is defined by section 

### 2(e) (2) of the Agriculture

Committee bill as follows: (2) PRIVATE APPLtCATOR.- The term "private applicator"

means a certified applicator who uses or supervises the use of any pesticide which isclassified for restricted use for purposes ofproducing any agricultural commodity on property owned

orrented byhim orhis employer or (if applied without compensation otherthan trading ofpersonal services between producers of agricultural commodities) on the property of anotherperson.

### 58

In 1970 there were 2.9 million farms in the United States with an average realized net income ofonly $5,374, and there were 1.8 million farmswith realized netoflessthan$3,500.

So the Committee on Agriculture felt that since there was no convincing evidence that there was any real need for the maintenance of such records orthe making of such reports or the filing of such documents the requirement that they be kept and filed would be a burden beyondthecapacity ofmostofthe farmers andnot commensurate with anyslightbenefitthat mightobtain.

COMMENTS OF THE COMMrrrEEON AGRICULTURE AND FORESTRY ON AMENDMENT NO. 14 OF THE COMMIrEE ON COMMERCE (RIGHT OF ENTRY)

In brief,thisamendment (page 100, line25, andpage101, lines2,3, and 8) is unconstitutional,since it would authorize officers or employees of the Esvironmetal ProtectionAgency to enter private dwellings and other places where pesticides or devices are held or used,whereas theAgricultureCommnittee bill restrictedsuch entry to places where pesticides or devices are heldfor distributionor sale. This amendmentwould furtherauthorize such employees to inspect andobtainsamplesof anypesticides ordevices, whereas theAgriculture Coomnittee bill limitedsuch inspection to pesticides or devices packagedd, labeled,ad releas-ed forshipment." 

### Since pesticides are held or used in most homes, this amendment would authorizeFederal agents to enter almost anyhome in the coun- trywithout awarrant and withouteven a suspicionthat there has been
a violation of any law. The Committee on Agriculture and Forestry opposestheexistence ofsuchauthority eventhough it werenever used. Section 9(a) ofthe Agriculture Committee bill provides for entry of any place where pesticides or devices are held for distribution or sale without a warrant for a "sufficient reason," even though no violation issuspected.Section 9(b) provides additional authority forentry with
a warrant, but only where there is reason to believe that the act has been violated. Entry of a commercial establishment is very different from entryintohomes and otherplaces.

With respect to the second part ofthis amendment, the Committee
on Agriculture and Forestry feltthat there was no reason whatsoever for authorizing the taking of samples of pesticides or devices until they were packaged, labeled, or released for shipment. Section 3 of thebill prohibitsthe distribution, sale, offerfor sale,holding for sale, shipment, delivery for shipment, or receipt and delivery or offer of delivery of any unregistered pesticide. Up until the time that one of these actions is to be taken, the chemical composition of a pesticide is entirely irrelevant to any provision ofthe law. Thus,for example, let us suppose that a registered pesticide consists ofone partchemical

x and two parts chemical y. The fact that chemical x is found in the pure state in the plant or insome other combination with chemical y than that for the registered pesticide is of no interest in connection with the administration ofthislaw. But whenit ispacked andlabeled with thename ofthe registered pesticide,then the composition ofthe mixture becomes onethatisofinterest underthe law.VIEWS OF SENATOR SAM J. ERVIN, JR., AMERICAN CIVIL LIERTIES UNION, AND THE CONGRESSIONAL RESEARCH SERVICE
The Ccmnmittee obtained the following views onthe constitutionality of this amendment from Senator Sam 

### .1.Ervin, Jr., the American Civil Liberties Union, and the Congressional Research Service.
U.S. SENATE COMMITTEE ON THE JUDICIARY,
SUBCOMMITrEE ON CONSTITUTIONAL RIGHTS, Washington,D.C.,July26,1972. 

### Hon. JAMES 

### B. ALLEN,
U.S.Senate, Washington,D.C.

DEAR 

### JIM: Thisisin response toyourletter ofJuly 20on theamend- ments proposed by the Commerce Committee to Section 9 of H.R. 10729.

The provision in question would authorize administrative searches of private homes. Such administrative searches raise significant con- stitutional questions under the Fourth Amendment's ban on warrant- 

### less andunreasonable searches.

The constitutional infirmities ofthe Commerce Committee provision 

### are strongly determined by theregulatory scheme contemplated bythe remainder ofthe legislation. Under existing Supreme Court decisions, the most significant Fourth Amendment problems arise where a criminal sanction is part ofthe regulatory scheme and related tothe search. For example, in thecase of Camara v. MunicipalCourt,87 S. Ct. 1727 

### (1967) the Supreme Court held that where failure to allow entry for
an administrative search (housing code inspection) results in a criminal sanction, then a warrant isrequired. In another case handed down the same day, See v. City ofSeattle, 87 S. Ct. 1737 (1967), the court held that even in an inspection of a commercial establishment, when the inspection moves into private areas oftheestablishment awarrant is necessary if failure to allow entry will result in a criminal sanction. Therefore, if failure to allowentry ofEnvironmental Protection agents will result in criminal sanctions, a warrant would be required under H.R. 10729.

The only situation in which an administrative search can proceed without warrant is where it is not forced, the failure toconsent results in no criminal penalty, the search serves a valid administrative purpose, and is conducted by a caseworker of the appropriate agency rather than by the police. Wyman v. James,91 S. Ct. 381 (1971). Therefore, if no criminal sanction at all is attached tothe searchunder H.R. 10729 then the Commerce Committee amendment may be constitutional.

## 60

However, even if all ofthese factors exist, a warrant would still be required if possession of the illegal articles is itself a crime, because

a search for those articles would not be an administrative search but treated as a traditional Fourth Amendment search. In other words, if under H.R. 10729 possession of the pesticides in question is a crime, then a warrantless search wouldbe no more constitutional than a "noknock" search for narcotics.

Even aside from the precise holdings in these Supreme Court cases, I am very troubled by the Commerce Committee's amendment. In substituting "or used" for the phrase "for distribution or sale" the Com-

merce Committee allows the invasion of private homes on a regular basis without search warrants. No longer would probable cause be re- quired where a violation is suspected. Rather, the American people would come to expect warrantless searches on homes and farmhouses done in the guise of seeking out illegal pesticides. Under no circumstances, whether in the context of a criminal or administrative statute, should Congress sanction such a violation of the privacy guaranteed by the Fourth Amendment.

I hope my response is ofhelp to you and the committee. With kindest wishes, Sincerely yours, SAM J. EnwN, Jr., Chairman.

AIERICAN CIVIL LIBERTIES UNION, Washington,D.C.,July26,1972. Hon. JTAMEs 13. ALLEN, New Senate OfficeBuilding, Wastngton,D.C.

DEAR SENATOR ALLEN: Thank you for your inquiry regarding H.R. 10729. We concur in your judgment that the Committee on Commerce amendment to Section 9(a) (1) (authorizing "inspection" and sam- pling at the places where "pesticides or devices" are "held or used") intrudes on rights guaranteed by the Fourth Amendment.

The Supreme Court recently 'upheld warrantless searches of busi-
ness premises. See e.g, CollanadeCatering Corp.v. UnitedStates, 397 U.S. 72 (1970) (liquor dealers), UnitedStatesv. Biswell.82 S.Ct. 1593 (1972) (gun dealers). But warrantless searches ofprivate dwellingshavenot been sanctioned.

In 0amara v. MunicipalCourt,387 U.S. 523 (1967), the Supreme Court upheld the citizen's Fourth Amendment right to resist a war- rantless search ofhis residence. Wyn nn v. Jounes,400 U.S. 309 (1971), in which A.F.D.C."home visits" were sanctioned, (lid not involve a criminal sanction asis herethe case.

In Section 9(a) (1) of H.R. 10729, as amended, the non-warrant inspection of private dwellings and sampling is authorized. This allows an impermissible invasion oftheprivacy rights ofprivate citizens and we oppose it. We donot by specifically mentioning the amendment wish to intimate that we approve of the practice of uouwarrant inspections ofbusiness premises. Sincerely,

CIHARLES MORGAN, Jr., Director.

### 61

THE LIBRARY OF CONGRESS,
CONGRESSIONAL RESEARCH SERVICE, 

### Washingtan,D.C.,July27,1972. To: Honorable James B.Allen, Senate Committee on Agriculture and Forestry. Attention: Mr. Stanton. From: American Law Division. Subject: Constitutional Issues Presented by Administrative Inspec- tionsAuthorized by H.R. 10729, Ninety-Second Congress, Second Session, as Reported by the Committee on Commerce on July 19, 1972. This is in response to your question concerning what if any constitutional issues are raised by sec. 9(a) of H.R. 10729, Ninety-Second Congress, Second Session, (as reported by the Committee on Commerce), an Act to amend the Federal Insecticide Fungicide, and Rodenticide Act. Scc. 9(a) authorizes agents of the Environmental Protection Agency "to enter at reasonable times, any establishment or 

### other place where pesticides or devices are held or used." See. 12(a) (2) (B) provides that it shall be unlawful "to refuse to allow the inspection of any records or establishment pursuant to section 8 or9." An establishment is defined in section 2(dd) as any place where a pesticide or device is produced, or held, for distribution or sale. Establisllments in which pesticides are produced are required by section 7 to be registered with the Administrator of the Environmental Protection Agency.

Section 9(a) requires the inspection agents to present appropriate credentials and "a written statement as to the reason for the inspec- tion, including a statement as to whether a violation of the law is suspected," but doesnot require the agent to firstobtain a warrant.

While Sec. 9(b) empowers agents to obtain a warrant if there is reason to believe that the Act has been violated, the section does not require search warrants forall inspections.

There are two lines ofcases relevant to whether Sec. 9(a) might in some cases constitute an "unreasonable search" within the meaning of the Fourth Amendment. In two 1967 decisions, Camara v. Municipal Court,387 U.S. 523, and See v. CityofSeattle,387 U.S. 541, the Supreme Court held that warrants must be obtained prior to routine housing and fire code inspections. Exceptions have now been madefor inspections of liquor establishments run by federally licensed dealers (ColonnadeCateringCorp. v. United States,397U.S. 72 (1970)), and for inspections of the premises of firearms dealers, UnitedStates v. Biswell,No. 71-81,May 15, 1972.

The Camara decision overruled theCourt'searlier decision inFrank
v. Maryland,359 U.S. 560 (1959). In Camara,the Court held that a homeowner could notbe held criminally liable forrefusing to permit
an inspection of his residence by a municipal housing inspector not having a search warrant. In See v. Seattle, decided the same day as Camara, theCourtheld thatthe ownerofcommercialproperty-in See alocked warehouse-could also refuse to open hisproperty for arou- tine fireinspection byan inspectornotholding a search warrant. Both decisions excepted emergency searches fromthe warrant requirement.

The Court derived the Camaraand See holdings from its view of

### "the basic purpose" ofthe Fourth Amendment "to safeguard theprivacy and security of individuals against arbitrary invasions by government officials." Protection of that privacy and security requires that, "except incertain carefully defined classes ofcases," thedecision that privacy must yield to the right of search must be decided "by a judicial officer, not by a policeman orgovernment enforcement agent."

"Under the present system, when the inspector demands entry, the occupant has no way ofknowing whether enforcement of the municipalcode involved requires inspection ofhis premises, nowayofknowingthe lawful limits oftheinspector's power to search, andnoway of knowing whethertheinspector himselfisacting underproper authorization. These arequestionswhich maybe reviewedby aneutral magistrate without any reassessment ofthe basicagency decision to canvass
an area." Camara,387 U.S. at 532.

Because there was no indication that "the burden of obtaining a warrant islikely to frustrate thegovernment purpose" behind routine health, fire, and housing code inspections, the Court found no reason to except such searches from the warrant requirement. The Court indicated that warrants might be issued for these routine administrative searches under conditions that would not justify issuance of
a warrant to search for evidence ofa crime. The need forinspection, "weighed interms of

. . .(the) reasonable goals of code enforcement" of "city-wide compliance with minimum physical standards for private property," (387 U.S. at 535) mightjustify periodic area- wide searches of a kind which would be clearly unreasonable in a search to obtain evidence of a crime, in which case there must be probable cause to believe that evidence will be uncovered in a partic- ular dwelling. The Court in Camara indicated also that the administrative searches "involve a relatively limited invasion of the urban citizen's privacy," since "theinspections are neitherpersonal innature nor aimed at the discovery ofevidence of crime." 387 U.S. at 537.

In See v. City ofSeattle.supra,the Court relied onthe same prin- ciples cited in Camara,and on analogy to the degree of particularity required in subpoenas of company records, to hold that "administrative entry, withoutconsent, upon theportions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure." 387 U.S. at 545.The Courtreserved judgment onwhether warrantless searches could be authorized as partofa licensing scheme.

In ColonnadeCateringCorp.v. UnitedStates, 397 U.S. 72 (1970), 

### the Court held that federal excise tax regulation ofretail liquor deal-
ers did not authorize the use of "physical force" to gain entry for inspection purposes without a warrant; instead the law provided that refusal to allow an inspection would result in a fine. The rather nar- row holding in Colonnadewas probably less significant, however, than dictum indicating that See is inapplicable to federal regulation ofthe liquor industry.

"Wedeal here with the liquor industry long subject to close super- vlsion and inspection. As respects that industry, and its various branches including retailers, Congress has broad authority to fashion standards of reasonableness for searches and seizures." 397 U.S. at 77.

### 63 Relying on that language in Colonnade,the Court in UnitedStates
v. Biswell, No. 71-81, 1972, found that "a like result is required in the present case, which involves a similar inspection system aimed at federally licensed dealers in firearms." The Gun Control Act of 1968, 

## ISU.S.C. 92

### 3(g), authorized warrantless entry during business hours for the purpose of examining firearms, ammunition, and records re- quired to be kept. The defendant's conviction for dealing in firearms without paying the required tax had been reversed by the Court of Appeals for the 10th Circuit, which rules that weapons used as evidence had been illegally seized. The Supreme Court reversed, up- holding the warrantless search consented to by the defendant because of the investigator's assertion that the search was authorized by law.

Whether the Court would apply Biswell to warrantless inspections ofplaces where pesticides areheld orused is not clear, but the Court's rationale in Bisivell can be stated. While recognizing that "federal regulation of the interstate traffic in firearms is not as deeply rooted in history as is governmental control of the liquor industry," the Court emphasized the importance of "close scrutiny of this traffic" through inspections. See was distinguished as involving a situation where warrantless searches were not important tothe reasonable goals of enforcement. Housing conditions were "relatively difficult to con- ceal or to correct in a short time." In order for inspections to have a deterrent effect in controlling sale of weapons such as the sawed-off shotguns involved in Bisicell,however, "unannounced, even frequent, inspections are essential." The Court also minimized the invasion of privacy involved insuch searches.

"When a dealerchooses toengage in this pervasively regulated busi-
ness and toaccept a federal license, he does so with the knowledge that hisbusiness records, firearms and ammunition will be subjectto effective inspection. Each licensee is annually furnished with a revised compilation of ordinances which describe his obligations and define theinspector's authority. 18 tJ.S.C. Sec. 921(a) (19). The dealer isnot left to wonder about the purposes of the inspector or the limits of his task." Slipopinion,p.6.

It may be that the registration of establishments as contemplated by H.R. 10729 is similar enough to federal regulation of liquor and firearmsto fall within the Colonnce-Biswellrulepermitting warrantlesssearches ofproducers' places ofbusiness. Asthe Courtindicated in See, "challenge tosuch programs can only be resolved

. . .on acase- by-case basis under the general Fourth Amendment standard of rea- sonableness." As to that aspect of H.R. 10729 which would establish
a system of inspections of places where pesticides are actually used
as well as offered for sale in accordance with applicable regulations, and ifsuch inspections were to extend to private homes and unregis- tered commercial establishments, we seeno support in thecase law for
a departure from the requirement that a search warrant be obtained. Also, it should be noted that as the bill is now drafted a homeowner wouldnotbeliable for prosecution under section 12 for failing to per- mit inspection of his home for pesticides, since that section applies only torecordsandestablishments.

Copies ofthedecisions ofthefour cases discussed aboveare enclosed.

GEORGE COSTELLO,



### Legislative Aattorney.COMMENTS OFTHE COMMITTEE ON AGRICULTURE AND FORESTRY ON AMENDMENT NO. 15 OF TiE COMMITTEE ON COMMERCE (SPECIFIC AUTHORIZATION)

In brief, this amendment would deprive the Administrator of adequate funds to carryout theAct. This amendment would limit appropriations to carry out the Federal Insecticide, Fungicide, and Rodenticide Act to not to exceed $15 million for the fiscal year ending June 30, 1973, not to exceed $25 million for the fiscal year ending June 30, 1974, andnot to exceed $35 million for thefiscal year endingJune 30, 1975.

The Committee on Agriculture and Forestry, the Committee on Commerce, and the Environmental Protection Agency estimated, as shown on page 17 of Report No. 92-838 ofthis committee and Report No. 92-970 of the Commerce Committee, thatthe costs of carrying out the new activities required by the bill would amount to approximately $15 million in fiscal year 1973, $22.3 million in fiscal year 1974, and $30.8 million in fiscal Year 1975. If other amendments recommended by the Committee on Commerce were adopted, these costs would be higher.When these costs for the new activities required by thebill are added to the costs already required tocarry out theexisting provisions of the Federal Insecticide, Fungicide, and Rodenticide Act ($18.3 million in fiscal 1972, $20.3 million in fiscal 1973, $22.4 million in fiscal 1974, and $24.3 million in fiscal 1975). the total amount of costs for carrying out both the old and new activities under that act would be:

$35 million for the fiscal year ending June 30, 1973, $44 million for the fiscal year ending June 30, 1974, and $55 million for the fiscal year ending June 30, 1975. The estimates upon which the Committee above estimates are based

are set out in the following letter:

ENVIRONMENTAL PROTECTION AGENCY, Washington,D.C. Hon. JAMES B. ALLEN, Chairman,Subcommittee onAgriculturalResearchandGeneralLegislation,Committee on Agriculture and Forestry, Washington, D.C. DEAR MR. CHAIRMAN: We are pleased torespond toyour request for five year cost estimates for the implementation of the current Federal Insecticide, Fungicide and Rodenticide Act, and the amendments to thatact proposed by theCommittee on Agriculture and Forestry (Report Number 92-838) and the Committee on Commerce (Report Number 92-970). Separate cost estimates for these alternative bills are enclosed, together with brief description of the new activities which wouldbe required by theproposed amendments.

The enclosures provide the estimated costs for these new legislative alternatives for Fiscal Years 1973 through 1977, assuming thatthe bill being estimated were tobe enacted early in Fiscal Year 1973. The costs shown for the implementation ofthe current Federal Insecticide, Fungicide and Rodenticide Act are consistent with the Agency's Fiscal Year 1973 budget request, which is currently under consideration. It shouldbe noted that thefunds which would be authorizedby Section27oftheComsmerce Committeeversionarelessthantheamountalready committedin FiscalYear1972,andbudgetedin FiscalYear1973,and only slightly largerthan the estimated requirements for ourcurrent programin FiscalYear 1974. Thisdollarlimitation wouldnotpermit adequate 

### expansionofourefforts to take on the new responsibilities imposed by thelegislation.(Italics added)

The estimated costs for the new bills reflect the additional costs imposed by the legislation upon the Environmental Protection Agency. They do not include any estimates ofthecosts whichmight beincurred by other Federal Agencies, or the costs of related efforts currently being carried out underexisting authorities.

These estimates do not reflect possible changes in the scope of the proposed efforts which might result in actual practice. Further, the

resources which may be applied infuture yearswill have tobe balanced against the requirements of other programs, prevailing economic con- ditions,and other circumstances in reaching a firm funding level. The estimates provided, therefore, do not represent a commitment to be included in future budgets. Sincerely yours, WILLIAm 

### D. RUCKELSHAUS,
Administrator. Attachment.

Five Year FiscalProjectionof Costs-Federal Insecticide,Fungicideand Rodenticide Act (FIFRA) (Current Law) I [In millions ofdollars] Gross costs: Fiscal year 1972- 18.3 Fiscal year 1973

- ----------- 20.3 F iscal year 1974 -------------------------------------------------- 22.4 Fiscal year 1975

-------- 24.3 Fiscal year 1976 ----------------------------------- 25.7 Fiscal year 1977

------------------------------------------------ 27.2 The funding requirements estimated above cover the direct and identifiable indirect costs of EPA's current pesticide programs. While FIFRA is the principal authorizing legislation for these activities,
some ofthem are performed under other authorities such asthe Public Health Service Act and the Federal Food Drug and Cosmetic Act. Included in the above figures are efforts in research, monitoring, en- forcement, abatement aid control, general assistance, training, and general supervision and support. Excluded are those indirect support costs borne by the Agency's Agency aid Regional Management ac- counts, and other indirect costs not directly applicable to Pesticide efforts. EPA elements with a major involvement in the Pesticide program are the Office of Categorical Programs, Office of Research and Monitoring, Office ofEnforcement and the ten Regional Offices.

These costs are the current estimates for EPA's basic Pesticides efforts. The cost estimates provided for the alternative versions of the proposed Federal Environmental Pesticide Control Act are additional costs imposed on the Agency by the various new provisions ofthe bills, and do not include thecosts ofcontinuing our basic efforts. Therefore, they should be added to the figures shown above in determining the total funding estimate for EPA'sPesticide programs under thevarious authorities.

### 66

5-YEARFISCALPROJECTION OF COSTSFOR IMPLEMENTING THE FEDERAL ENVIRONMENTAL PESTICIDE CONTROL ACT(S. REPT. NO.92-838, AGRICULTURE AND FORESTRY COMMITTEE)

in millions ofdollars]

Fiscalyear1973 1974 1975 1976 1977

Groso costs ------------------------... ---------------............ 15.1 23.0 31.9 33.5 33.0 Disposal .------ - - - - - - - - ------------------------------------------ (1.8) (1.7) (7.6) (6.6) (0.0)



### NewActivitiesRequiredby theAct

5-YEAR FISCAL PROJECTION OFCOSTS FOR

IMPLEMENTING THE

FEDERAL ENVIRONMENTAL PESTICIDE CONTROL ACT (S. REPT. NO.

92-970. COMMERCE COMMITTEE)
[inmillions ofdollars)

Fiscal year

1973 1974 1975 1974 1977

GSoss cost
- - - - - - - - - -------------------------------------- 15.9 23.8 32.7 34.3 33.8 Disposal -------------------------------------------------- - - - - - - - - - - (1.8) (1.7) (7.6) (6.6) (5.0)



### New ActivitiesRequiredby theAct

TECHNICAL CORRECTIONS TO AomrcunTuRE COMMITTEE AMENDMENT



### Since this bill was reported by the Committee on Agriculture and Forestry the following technical corrections have been found to be needed: (1) When the House revised this bill. it omitted from the defi- nition of device (section 2(h)) a provision exempting therefrom sprayers,spreaders, and other equipment used forthe application ofpesticides when sold separately therefrom. It now appears that thisommission was not intentional and was not favored by EPA. 

### Torestore thisexemption, there shouldbe insertedonpage 68,line 12, after the parenthesis, a comma and the following: "but not including equipment used for the application of pesticides when sold separately therefrom."

(2) On page 113,line 2,thewords "or device" shouldbe stricken sincethisprovision applies toa cancelled registration, and devices

are not registered.



### (3) On page 63, immediately beneath the line reading "(cc) Weed", insert "(dd) Establishment"

DEVELOPMENTS AS A RESrLT OF THE PREPARATION OF THis REPORT
The foregoing part ofthis report in substantially the same form as it appears herein was printed as a committee print and became available on July 27, six days after the bill as reported by the Commerce Committee became available tothegeneral public.



### As soon asthe committee print hadbeen completed,the Chairmanof thisCommittee wrote tothe Chairman ofthe Committee on Commerce
asfollows:U.S. SENATE, Cosr3aIyreEE ON AGRII'ULTVRE AND FORESTRY, Washington, D.C., July27,1972. Hon. WARREN G. MAGnUSON, Chairman,Covmmittee on Commerce, U.S. Senate, Washivgton, D.C.

DEAR MAGGIE: In order to protect the jurisdiction of your Committee over "fisheries and wildlife, including research

...and conservation" I acceded to your request of December 16, 1971, to have the pesticide bill, II.R.10729, referred to your Committee after consideration by this Committee had been completed. Your Committee has

now reported that bill with approximately sixty-three amendments divided into fifteen groups, which in no way deal with fisheries or wildlife, but which would-

(1) Give federal agents the right to enter private homes without a warrant and without any suspicion that a crime has been committed.

(2) Restrict appropriations tocarry out thislaw toan amount clearlybelow what isneeded.

(3) Visit unnecessary losses on such American industries as Ha-
wanan sugar producers; Georgia pecan growers; Michigan producers of Christmas trees and strawberries; Washington oyster producers; the Michigan recreation industry; and on the consumers served by these industries.

(4) Discourage the development of new and safer pesticides. (5) Increase the penalty for the least serious offense above that permitted for clearly more serious offenses.

(6) Require the expenditure of public and private funds for the dissemination of dangerous and misleading information.

(7) Provide an empty form of justice under which one party is prohibited from offering evidence.

(8) Define "man" for the purposes of this law as including farmers and farmworkers.

(9) Introduce confusing surplusage and numerous errors into this law,which will tend tocripple itsenforcement.

I am sure that when you wrote to me on December 16, 1971, it was notyour intention to invade thejurisdiction ofthe Committee on Agriculture and Forestry

. I know that your Committee did not have an adequate opportunity to consider this measure and did not bear manx ofthe witnesses who asked tobe beard in opposition tothe amendments recommended by your Committee.

There is no question but that this bill, which amends the Federal Insecticide, Fungicide, and Rodenticide Act, properly falls within the jurisdiction oftheCommittee on Agriculture and Forestry. That Committee has had jurisdiction over all previous revisions of that Act and will undoubtedly has e jurisdiction over all future amendments to it. It also has responsibility for legislative oversight over the administration of that law. The task of the Committee on Agriculture and Forestry in carrying out these responsibilities will be made most difficult in confusing surplusage, errors, and the other prosions described above are included in the law.

While almost all of the amendments recommended by your Committee had been carefully studied and rejected by the Committee on Ag-riculture and Forestry, which at two seperate hearings heard all witnesses who desired to be heard, the fact that they now appear to be supported by your Committee makes it incumbent upon theCommittee

on Agriculture and Forestry to state its reasons for rejecting these amendments, and the Committee has ordered that a supplemental report be filed for that purpose. A conunittee print of such a report has been prepared and is attached for your information, but much more work will have to be done o it, as the Committee would like to be
sure that the report is absolutely accurate and properly documented.

I am sorrythat the Senatefinds itself in this situation onthis impor- tant legislation. All ofthe matters discussed in this letter are discussed in detail in the draft report. Where the Commerce Committee has rec- ommended language changes which introduce errors into the bill but have no other effect, the report suggests ways in which the language preferred by the Committee on Commerce might be adopted without the errors.

I hopethat you will study thismatter and thattogether we may find
some way out ofthis dilemma. Please let me have your views on this matter. Sincerely,

HERMAN E. TALMADGE, Chairman. On August 1, the Chairman ofthis Committee received the following letter from the Chairman of the Commerce Committee and on the
sameday gavethe following reply.

U.S. SENATE,
COMMITTEE ON COMMERCE, Washington. D.C., July £8, 197£. Hon. HERMIAN E. TALMASGE, Chapman, Committee on Agriculture and Forestry, U.S. Senate, Washington D.C. DEAR MR. CHAIRAx: I share your concern about the difficulties which confront uson the pesticide bill, and while I cannot concur with many ofthe statements inyour letter, I sincerely sympathize with your frustration. The objectives of the Commerce Committee amendments do seem sensible to me, and I suspect that many of ourconflicts are the result of misunderstandings. I have therefore instructed the Com-
merce Committee staff to meet with the staff of your Committee and attempt to iron out whatever differences between us are apparent rather than real.

With best wishes, Sincerely yours, WARREx G. MA.sNsoN, Chairaan.

lion. VARrmNG. hlACTSON, At (.UST 1, 1972. Chairman,Camoni/trcon, (oniimerre. lvash i/sq/ton. J).C.

n, Ifoais,,: Thank you for Vour letterof .uly 28. I would be very happy Io hav'e the stall of the ('onnittee on Agriculture and Forestry work NN ith Your Committee staff. However, I would under no circum-

### 69

stances want such collaboration to be used as a reason to delay action

on this important bill.

1 feel sure that several of the Commerce Committee amendments could be substantially revised to meet your objective, and that in such revised form they could be quickly approved by the Committee on Agriculture and Forestry next year. 1 would think that Commerce Committee amendment 1, revised as indicated in Senator Allen's letter to Senator Hart (attached), could be alliroved by the Committee on Agriculture and Forestry immediately if we could finda way ofagreeing to Senator Allen's proposal. That revision represents many hours of work by the staff of the Committee on Aariculture and Forestry with environmentalists, EPA, pesticide manufacturers, and others.

There now probably remains less than two mouths to obtain final en- actment of this important bill. and Congress will be in recess for the Republican Convention during part of that time, I earnestly ask for your cooperation. Sincerely, HERMAN E. TALMADGE, Chairman. The two committee staffsbegan meeting on August 1and continued to meet until September 22, 1972. when an amendment in the nature of a substitute, which met essentially all of the objections raised in thisreport, was agreed ulOn.

EXPLANATION OF CO3uPROMISE AMENDMENT IN THE NATURE OF A SUBSTITUTE
The substitute consists ofthe amendment recommended by the Corinittee on Agriculture and Forestry, plus- (1) Commerce Committee Aimeudment No. 1 (registration criteria) modified as suggested in this Committee's comments on that amendment. This amendment represents no change in substance, and, with the modifications recommended by this Committee, is technically correct and represents a slight clarification in ]anguage.

(2) a substitute for Commerce Committee Amendment No. 2. The substitute retains the exclusive use of data provision recoimended by this Committee; hut provides in addition for a inandatory licensing system under which permission to use test data ili return for a reasonable share of the cost of producing the data would be required.

(3) a substitute for Commerce Committee Amendment No. 3. The substitute would prohibit any member of a scientific advisory committee from having a financial or other conflict ofinterest witli respect to any matter considered by such committee. This appears tobe inaccord with existinggeneral goveriient policy.

(4) a substitute for Commerce Committee Amendment No. 5 (exports). The substitute would- (A) make producers of pesticides and devices for export subject tosection 8 (which authorize the prescription ofbooks and records requirements), and

(B) prohibit the exportation of pesticides prepared for export in accordance with the foreign purchaser's directions70

if such export would result in adverse effects on the environment ofthe United States. Unlike the Commerce Committee amendment, this provision correctly makes the producers, rather than the pesticides, subject to tile recordkeeping requirements; retains the Agriculture Cominittee provision requiring notice to foreign governments ofpesticides banned in the United States; provides a penalty for exportation contrary to its provisions; would require the Administrator, 

### inldetermining whether export of a pesticide should be banned, to consider whether such a ban would merely shift production to foreign countries (i.e., whether the ban would actually result in any protection to the environment of the United States); and would not require pre-clearance unless thepesticide was one which the Administrator by regulation had listed as one "likely to result in adverse effects oil the environment of the United States". The (onnIlrce committeeee amendment would have prohibited exporta- tion of even the most innocuous pesticide packed in accordance with the purchaser's directions until such export had been cleared by the Administrator. The listing of any pesticide as "likely to result inadverse effects" would be subject tojudicial review.

(5) a substitute for Commerce Committee Amendment No. 5 (coilfidentiality). The substitute would- (A) keep the Agriculture Committee provision requiring submission of all test data requested by theAdministrator;

(B) delete tile Agriculture Committee provision requiring the Adminiistrator to make the data called for in the regis- tration statement and other scientific information available to the Jilblic within tilirty days after registration;

(C) prohibit the disclosure ofinformation or data received
or sent pertaining to applications for registration until thirty days prior to registration (or at registration if an emergency or the public health requires thatregistration not be delayed), and require such data to be made available to the public at that time. If the Administrator determined during such thirty day period on the basis of substantial new evidence or evaluations of data earlier received that the pesticide did not meet the requirements for registration he would have to give the applicant notice ofthat fact within such period, thereby initiating denial of registration proceedings.

(D) require written communications between the Administrator and any person to be made available to the public upon identifiable request and at reasonable cost; but only subject to such conditions as will not unreasonably interfere with administration of the Act. paragraph (C) above, or the pro- hibition against disclosure described inparagraph (E)below. The Commerce Committee amendment on this point would have required oral communications tohave been made public, would have been limited to communications between the Administrator and "manufacturers". would not have been con- ditioned oi non-interference with administration, and would iuot have been limited as described in (C) above.

(E) prohibit disclosure oftrade secrets, confidential financial information, or commercial information the disclosure ofwhich may give a competitor a competitive advantage, except to other federal officials, in judicial proceedings, in proceedings under the Act, and to any other person in order to pro- tect the public health. The Administrator's decision torelease any information which the registrant or applicant believed to be protected from disclosure would be subject to judicial review by declaratory judgment. (6) a substitute for Commerce Committee Amendment No. 7 (citizens' suits). The substitute would provide for citizens' suits only againstthe Administrator for failure to perform non-discretionary acts or failure to investigate and prosecute violations. Unlike the Commerce Committee amendment, citizens' suits would not be authorized against manufacturers, distributors, users, and other persons; and the amendment does not provide for the pay- ment of attorney's and expert witness fees and other litigation costs.

(7) a substitute for Commerce Committee Amendment No. 9 (inclusion of farmworkers in term "man"). The substitute con- tains none of the Commerce Committee provisions, but instead makes it an unlawful act to use any pesticide in tests on human beings without disclosure of foreseeable consequences and voluntary participation.

(8) a substitute for Commerce Committee Ainendment No. 11 (suspension). The substitute contains none of the Commerce Committee provisions, but instead (1) provides that a court stay of a suspension order issued without a hearing slall continue in effect until the Administrator's final decision with respect to can- cellation or change in classification, instead of only until the Administrator's hearing on the suspension; and (2) permits participation by other parties (in addition te the Administrator and registrant) in a suspension hearing conducted prior to suspension ofregistration.

(9) a substitute for Commerce Committee Amendment No. 15 (specific authorization). The substitute would authorize appropriation for fiscal 1973, 1974, and 1975 not to exceed, respectively, $40 million, $52 million, and $64 million (in lieu of theCommerce Committee figures of $15 million, $25 million, and $35 million).

(10) the technical amendments described at page 66 of this supplemental report, and other minor amendments of a technical nature.

(11) a provision for screening imported agricultural com- modities to determine pesticide residues that are excessive under the Federal Food, J)rug, and Cosmetic Act.

Commerce Committee amendments 4 (penalties), 8 (hearing structure), 10 (authority of local governments to regulate the

use of pesticides), 12 (authority of states to register pesticides), 13 (record-keeping by private applicators), and 14 (right of entry) are not included in the substitute. As part ofthe agreement with respect to a substitute it was agreed that the following should be included in the legislative history ofthe bill:72

TRADE SECRETS

LEGISLATIVE HISTORY RE TRADE SECRETS APPROVED BY LEN RICKWIT
SEPTEMBER 22, 1972, SUBJECT TO FINAL APPROVAL BY BERNIE NASH (1) Information that constitutes a trade secret, financial information which is privileged or confidential, or commercial information the disclosure of which gives a competitor a competitive advantage with respect to the proprietor ofthe information should be protected from disclosure except under those circumstances enumerated in subsection (c) (1).

General approval is given to the definition of "trade secret," as incorporated in the RESTATEMENT OF TORTS.

In determining whether given matter constitutes a trade secret, consideration shallb given to- (a) the extent to which the data is independently known to outsiders or is u ed by outsiders for similar purposes;

(b) the extent to which it is known by insiders; (c) the extent of the measures taken by an owner to guard its secrecy;

(d) value of the data to the owner and others, including the extent to which, if used inconduct of a l)usiness, it would confer

a competitive advantage on saidowner:

(e)the amount of effort or money expended in developing the data; and

(f) the ease or difficulty with which the data could properly be acquired or duplicated by others. I)eliberation has been given to those circumstances under which it may be proper to release trade secrets. Those instances are set forth in subsection (c) of section 10. In all instances the disclosure shall be done in such a method as to guard the secrecv of the data as much as possible and insure it will not fall into the hands of a competitor. Legi.litire ite/It with respectto section 3(c)(1) (D)

The change back to section 3(c) (1) (D) as reported by the Agricul- ture ('olmnittee with additions has essentially 2 pllrposes: (1) To authorize the Administrator to require a description of allrelevant tests and their results aid

(2) To preventunnecessary repetitive testing by subsequent ap- plicants. Thus, all data either voluntarily submittedhereunder or required to be submitted by the Administrator may be used by the Administrator inmaking deteruninations of the adequacy of the test data submitted in connection with other applications. As concerns use of such data ill sipport of anther application without permission ofthe originator )f

the test data, liowver,it is recognized that incertain circumstances it iight be unfairor inequitable for government regulation to require

a substantial testing expense to be borne by the first applicant, with subsequent applicants thereby gaining a free ride. On the other hand, necessary duplicative test m wg would represent a wasteful, time-consuming, aii costly process resulting ina sulistantial misallocation of

resources. Thus it was decided that fairness and equity require a shar-73
ing ofthe governmentally required cost ofproducing the testdata used in support ofan application by an applicant other than the originator of such data. If no agreement can be reached, the Administrator is vested with authority to determine the reasonable share of the cost of the test data used, including subsequent reallocations uponrequests for

use of such data by additional applicants. 

## 0