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 0-72-1
2

(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 should not be construed as a limitation of the broad 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 by them of production

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 of the 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 use permits; (Section 5)

(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 the Administrator. 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 worms in 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 sanitary conditions. 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 the fact that the farm population

has decreased from about 30 million persons to about 9.4 million

persons. More than 200 million persons in the United States, and many more

millions throughout the world, now depend upon these farms and

farm operators for most of their food and fiber. All of us are consumers.

As consumers we all benefit from the increased efficiency and use of

modern technology in the production and marketing of farm products.

When we go to market we can choose from over 6,000 different

food items including 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 per cent in Europe. . 50 per cent in the Soviet Union.

and as high as 90 per cent in many other countries.

American food is the best buy in 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 New
England, 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 of less 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 of hardwoods.

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 to be

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 of benefit versus risk to determine

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 cannot be registered under

the Act and cannot be sold or distributed in interstate commerce. If a

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 of H.R. 10729

are needed to correct these and other deficiencies in the law in order to

provide effective control. Some of the major changes provided for by

the bill are as follows:
(1) Restrictions on 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 of such 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 by issuing a new 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 pesticide contrary to such regulations, 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 and improve the environment.

(2) Extension to actions entirely within a single state.-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 the prohibitions

of the Act.

(3) Strengthening enforcement, proprietary rights in test data, and

additional authorities.-All of these provisions are designed to provide

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 to multiply. 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)l ly 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 of food for export are now produced by fewer than 5 percent of the population.

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 the Federal 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. As the number and variety of chemical 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 was repealed 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 Act required: 1. The registration of economic poisons or chemical pesticides prior to their sale or movement in interstate or foreign commerce. 2. The prominent display of poison warnings on labels of

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

4. The inclusion 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

with respect to the delivery, movement, or holding of pesticides. This Act was designed to work in harmony with the uniform State

insecticide, fungicide and rodenticide act which 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 on food crops. The manufacturer is required 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 and Drug Administration sets a tolerance or maximum amount of residue which may legally remain in or on the food crop when it is marketed.

1959 AMENDMENTS

After 1947 several new types of agricultural chemicals, generally referred to as nematocides, defoliants, desiccants, and plant regulators were developed and acquired widespread commercial use. Nematocides were used to control nematodes, or very small eelworms which

attack the roots of plants. Defoliants were found useful to make leaves

drop from plants to facilitate mechanical harvesting of the crop. Desiccants also were found useful 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

pesticides led to the creation of a Presidential Scientific Advisory Committee which made a number of recommendations in its 1963 report. It concluded among other things that, 1. Monitoring programs to obtain systematic data on pesticide residues should be expanded. 2. Federal research programs concerned with pesticides should

be expanded and coordinated.

3. A broad educational program emphasizing the hazards in

the use of pesticides 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 of that committee that mankind must continue

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 of both the House and the Senate 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 a commission on pesticides and their relationship to environmental health. Over 5,000 references to published and ongoing scientific

research were reviewed 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 and their 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 staffs located in the

Departments of Agriculture, Interior, and Health, Education, and

Welfare to a new Environmental 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 basis for 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----2
witnesses. A number of other letters, statements, reports, and recom- mendations were also formally furnished the Committee in connection

with the hearings.

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

were held on a House 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 list comprising 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 of suggestions 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 of a 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 to give 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 the views 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 to meet specific local needs (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 of an 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 is first suspended and then

cancelled.

Amendment 3 would provide for citizens' civil actions for injunctive 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 for
12

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 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 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 for judicial 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 the Administrator to initiate formal review without placing a stigma on a product when he

is not convinced that the registration should be cancelled. It also
permits the Administrator to proceed without automatically cancelling

if no specific request for a hearing is received.

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

has determined no substantial question of safety exists which warrants

formal review, and thus has refused to hold 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 on questions of suspension so that the procedure 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 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 of the

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.

In connection with striking the indemnity provisions the Committee

felt that with the tighter regulation provided by the bill, suspension and

cancellation should rarely be necessary; and that on such rare occasions

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 to
registrants and user groups to raise at the hearing any question bearing

on the benefits of using 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 a given

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,

Assistant Administrator Jor Categorical Programs.

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 to protect 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 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 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 coming in contact with pesticides or pesticide

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 of registration, and

(3) strike out the last sentence of section 3(c) (5) which prohibits

denial of registration 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 that for "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 the present language of section 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 a product which is being 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 pests legally 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 the interpretation of "inconsistent," recommending

that it be applied in a common sense manner (page 16, item

11). The illustration used, however, dealt with concentration

of pesticide 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 leaf bettles 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 the expense of registering a product for

the control of minor and occasional pests such as these. But

these pests can be controlled by pesticides that have been

registered for control of other pests in comparable locations or environments. It would be helpful in the cause of permitting us to be a law-abiding industry if it were recognized 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 is in no 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 a matter which would have to be left to the good sense of the

Administrator, the manufacturers, and the users. It is the hope of the

Committee that by proper administration of the labeling requirements and administrative interpretations of the law and the labels approved by him, the Administrator will be able to make it clear to users that

such uses are not prohibited. Further, it is the belief of the Committee

that the use of the word "inconsistent" should be read and administered in a way so as to visit penalties only upon those individuals who

have disregarded instructions on a label that would indicate to a man of ordinary intelligence that use not in accordance with such instructions might endanger the safety of others or the environment. Thus, for example, it would 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 other local

authorities of any authority or jurisdiction over pesticides and 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, if any, local authorities

whether towns, counties, villages, or municipalities have the financial

wherewithal to provide necessary expert regulation comparable with

that provided by the State and'Federal Governments. On this basis

and on the basis that permitting such regulation would be an extreme

burden on interstate commerce, it is the 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 all jurisdiction

and authority over pesticides and the regulation of pesticides.

5. Sec. 164.31(c) of the rules of procedure which were proposed and

published in the Federal Register of January 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 of the 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 to just 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 not include 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 with the cost estimates 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 in FY 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 of H.R. 10729 sets forth the popular Act citation of this

bill as the "Federal Environmental Pesticide Control Act of 1971."

Section 3 of H.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 of H.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-72-3a
The following exceptions to immediate effectiveness of amendments

enacted are made:

(1) All new registrations of pesticides after such regulations are promulgated shall be in accordance with regulations 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 be used only by 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 be subject to such a penalty 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 can mean that the certified applicator does

not have to be physically present at the site of application if the person 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 to include 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

Adverse Effects 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 registration pesticides 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 a registration must include the name 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- tion for 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 is required 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 thirty days 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 the refusal 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 of registra- 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 the Act, 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, if the 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 the pesticide presents a hazard 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 in present 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 of the 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 it in accordance with such instructions. In

other cases general or seasonal licenses, permits, or other forms of

approval may be required; but it is not 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 to impose. The Committee 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 such restrictions 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, paragraph
7, or to impose 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, or prohibitions through such measures as certification, the signing of registers, or the regulation of appropriate outlets for distribution. The

Administrator may, in determining 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 Committee has provided that these restrictions shall be 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 views in addition to the formal submission of written 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 of appeals filed within 60 days of the publication of the regulation. 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 of applicators 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 certification
program 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 the possibility of injury 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 by him, 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 or subsection (b) if such sale or use 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 the necessary 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 of notice of intent to hold a hearing, or if a hearing is requested

after a notice of intent to cancel the decision reached after the hearing

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, a registrant

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 is requested, the

notice of intent 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 be reviewable

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 of scientific fact and the report would be

made public and considered as part of the hearing record.

This language in the bill 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 is in process rather 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 90 days thereafter the Administrator must evaluate the

data and reports and issue a final order. Under section 6(d) the Administrator 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) grant registration; (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 of pesticides and, when required pursuant to Section 25(c) (4),
devices which he is currently producing, produced during the past year,

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 data relating to registered pesticides or to a pesticide for which an

application for registration has been filed).

Any officer or employee of the Environmental Protection Agency or

of any 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

not extend 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 of such 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 of a prosecution for minor violations if the 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 in his

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 or confidential information to the public is 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 be released.

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 is refusal to permit lawful inspection of an establishment or sampling of a pesticide; advertisement of a restricted use product not containing such classification; making available for use, or using, a restricted use pesticide other than as provided under the Act or inconsistant with its labeling; and violation of a "stop sale, use, or removal" order.

Violation of recoi 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, or removal" order to any person 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 or discolored as required, or falsely represented as to claims or directions for use. A misbranded device is liable to similar action, as are pesticides and devices which, when used as directed on the label

and as required under the Act, nevertheless cause substantial adverse

effects on the environment.

Subsection (c) provides for the disposition of condemned 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 other expenses

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 such as pesticides control. While the criminal provisions

may be used where circumstances warrant, the flexibility of having

civil remedies available provides an appropriate means of enforcement

without subjecting a person to criminal 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 the Act can be considered by the Administrator 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 for not 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 of Appeals. 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 by
filing 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 of record and shall sustain the order of the Administrator if it 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 is required 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 all judgments entered in actions under

the Act.

The Committee has simplified the procedures for judicial review of

agency actions by 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 law and 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 or device which is in accordance with the specifications of the

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 a finding by the Administrator that it is in violation of the

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 to prescribe 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) if requested 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 in light of the Secretary's responsibilities regarding 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 to chemicals for pest control; to establish 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 or cancellation of a 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 enforcement
programs, 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 is to 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 if disapproved 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 but is not sufficiently widespread to warrant 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 of the

Act, prescribe regulations for the discoloration or coloring of pesticides, and determine and establish suitable names to be used in ingredient

statements.

SECTION 25. SEVERABILITY

This standard severability section states that the provisions of the

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 as follows (existing law proposed to be omitted is enclosed in

black brackets, new matter is printed in italic, existing law in which 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 of the bill are shown with the sections

of existing law to which they relate. To locate sections of the bill, use

the following table:

For the following section of H.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 ectio n 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 of bill.

Section 6c.

(New) at end of bill.

(New) at end of bill.

Section 3.

Section 3c.

Section 7.

Section 9.

Section 8.

(New) at end of bill.

(New) at end of bill.

Section 4d.

Sections 6d and e. Section 3b.

Section 10.

Section 6b.

(New) at end of bill.

(New) at end of bill.

(New) at end of bill.

(New) at end of bill.

Section 11.

Section 13.

(New) at end of bill.

(New) at end of bill.

Section 6a.

Section 14.

Section 12.
FEDERAL INSECTICIDE, FUNGICIDE, AND

RODENTICIDE ACT

[TITLE]

Sec. 1. Short Title and Table of Contents.

[SECTION 1.] (a) Short Title.-This Act may be cited as the "Fed- 8edion I of

eral Insecticide, Fungicide, and Rodenticide Act." Eximnglaw

(b) TABLE OF CONTENTS.-

Section 1. Short title and table of contents.

(a) Short title.

(b) Table of contents.

See. 2. Definitions.

(a) Active ingredient.

(b) Administrator.

(c) Adulterated.

(d) Animal.

(e) Certified pesticide applicator, etc.

(1) Certified applicator.

(2) Private applicator.

(3) Commercial applicator.

(4) Under the direct supervision and control of a

f) Defoliant, certified applicator.

g) Desiccant.

(h) Device.

(i) District court.

(j) Environment.

() Fungus.

(1) Imminent hazard.

(i) Inert ingredient.

(n) Ingredient statement.

(0) Insect.

(p) Label and labeling.

(1) Label.

(2) Labeling.

(q) Misbranded.

(r) Nematode.

(s) Person.

(t) Pest.

(u) Pesticide.

(v) Plant regulator.

(W Producer and produce.

() Protect health and the environment.

(y) Registrant.

(z) Registration.

(aa) State.

(bb) Substantial adverse effects on the environment.

(cc) Weed.
Sec. 3. Registration of pesticides.

(a) Requirement.

(b) Exemptions.

(c) Procedure for registration.

(1) Statement required.

(2) Data in support of registration.

(8) Time for acting with respect to application.

(4) Notice of application.

(5) Approval of registration.

(6) Denial of registration.

(d) Classification of pesticides.

(1) Classification for general use, restricted use,

or both.

(2) Change in classification.

(e) Products with same formulation and claims.

(f) Miscellaneous.

(1) Effect of change oj labeling or formulation.

(2) Registration not a defense.

(3) Authority to consult other Federal agencies.

Sec. 4. Use of restricted use pesticide; certified applicators.

(a) Certification procedure.

(1) Federal certification.

(2) State certification.

(b) State plans.

Sec. 5. Experimental use permits.

(a) Issuance.

(b) Temporary tolerance level.

(c) Use under permit.

(d) Studies.

(e) Revocation.

See. 6. Administrative review; suspension.

(a) Cancellation after five years.

(1) Procedure.

(2) Information.

(b) Cancellation and change in classification.

(c) Suspension.

(1) Order.

(2) Expedite hearing.

(3) Emergency order.

(4) Judicial review.

(d) Public hearings and scientific review.

(e) Judicial review.

See. 7. Registration of establishments.

(a) Requirement.

(b) Registration.

(c) Information required.

(d) Confidential records and information.

Sec. 8. Books and records.

(a) Requirement.

(b) Inspection.

69-643 0--72-----5
Sec. 9. Inspection of establishments, etc.

(a) In general.

(b) Warrants.

(c) Enforcement.

(1) Certification of facts to Attorney General.

(2) Notice not required.

(8) Warning notices.

Sec. 10. Protection of trade secrets, etc.

(a) In general.

(b) Disclosure.

Sec. 11. Standards applicable to pesticide applicators.

(a) In general.

(b) Separate standards.

Sec. 12. Unlawful acts.

(a) In general.

(b) Exemptions.

Sec. 13. Stop sale, use, removal, and seizure.

(a) Stop sale, etc., orders.

(b) Seizure.

(c) Disposition after condemnation.

(d) Court costs, etc. Sec. 14. Penalties.

(a) Civil penalties.

(1) In general.

(2) Private pesticide applicator.

(3) Hearing.

(4) Peferences to Attorney General.

(b) Criminal penalties.

(1) In general.

(2) Private pesticide applicator.

(3) Disclosure of information.

(4) Acts of officers, agents, etc. Sec. 16. Administrative procedure; judicial review.

(a) Administrative Procedures.

(b) Judicial review.

(c) Jurisdiction of district courts. (d) Notice of judgments.
135

Sec. 16. Imports and exports. (a) Pesticides and devices intended for export.

(b) Cancellation notices furnished to foreign governments.

(c) Importation of pesticides and devices.

(d) Cooperation in international efforts.

(e) Regulations.

Sec. 17. Exemption of Federal agencies.

Sec. 18. Disposal and transportation.

(a) Procedures.

(b) Advice to Secretary of Transportation.

Sec. 1,9. Research and monitoring.

(a) Research.

(b) National monitoring plan.

(c) Monitoring.

Sec. 20. Solicitation of public comments. Sec. 21. Delegation and cooperation.

Sec. 22. State cooperation, aid, and training. (a) Cooperative agreements.

(b) Contracts jor training. Sec. 23. Authority of States.

Sec. 24. Authority of Administrator.

(a) Regulations. (b) Exemption of pesticides.

(c) Other authority.

Sec. 25. Severability.

Sec. 26. Authorization for appropriations.
36

Subsections of section 2 are set out below in the order in which they appear in existing law. The following table will help to locate the cor- responding subsections in the bill (which rearranges the definitions in alphabetical order)

Subsection of bill 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) P est ..... ................ N ew . (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) W eed . .. . . .... .. .... I. (dd) State Issuance of Permits ---- New.
Scion 2 of Sec. 2. Definitions. [DEFINITIONS Exiding Lw 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 or mixture

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 a firearm) 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

any pest or any other form of plant or animal life (other than man and

other than bacteria, virus, or other micro-organism on or in living man or other living animals).

[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 mitigating nematodes.]

[h.] (v) Plant Regulator.-The term "plant regulator" means

any substance or mixture of substances, [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 "plant regulator" shall not be required to include at all any of such of those nutriment mixtures or soil amend- ments as are commonly known as vitamin-hormone horticultural products,

intended for improvement, maintenance, survival, health, and propagation of plants, and as are not for pest destruction and are nontoxic,

nonpoisonous in the undiluted packaged concentration.

[i.] (f) Defoliant.-The term "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 or plant parts;

may also be 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 usually have more than six legs, 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 (that is, [all] any non-chlorophyll-bearing [plants] plant of 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 or in living man or other animals and those on or in processed food, beverages, or pharmaceuticals. [o.] (n) Ingredient Statement.-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 6 of this 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.]

a statement which contains-

(1) the name and percentage of each active ingredient, and the total

percentage of all inert ingredients, in the pesticide; and

(2) if the pesticide contains arsenic in any form, a statement of the percentages of total and water soluble arsenic, calculated as

elemental arsenic.

[p.] (a) Active Ingredient.-The term "active ingredient"

means-(1) in the case of [an economic poison] a pesticide 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] any pest; (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] product thereof;
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" means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust

Territory of the Pacific Islands, and American Samoa.

[u.] (b) Administrator.-The term "[Secretary] Administrator" means the [Secretary of Agriculture] Administrator of the Environmental Protection Agency.

[v.] (y) Registrant.-The term "registrant" means [the] a person [registering] who has registered any [economic poison] pesticide

pursuant to the provisions of this Act.

[w.] (p) Label and Labeling. (1) Label.-The term "label" means the written, 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 of its containers or wrappers. [x.] (2) Labeling-The term "labeling" means all labels and other

written, printed, or graphic matter-

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

[(2)] (A) accompanying the [economic poison] pesticide or device

at any time; or [(3)] (B) to which reference is made on the label or in literature

accompanying the [economic poison] pesticide or 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] Department of Health, Education, and Welfare, State experiment stations, State agriculturel colleges, and other similar Federal or State institutions or agencies authorized

by law to conduct research in the field of [economic poisons] pesticides. [y.] (c) Adulterated.-The term "adulterated" [shall apply] applies to any economicc poison] pesticide if: (1) its strength or purity falls below the professed standard

[or] of quality 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] pesticide has been

wholly or in part abstracted.

[z.] (q) Misbranded.-[The term "misbranded" shall apply-]
(1) [to any economic poison or device if] A pesticide subject to this

Act is misbranded if-

(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 contained in a package or other container or wrapping

which does not conform to the standards established by the Administrator pursuant to section 25 (c) (3);

[(a)] (C) [if] it is an imitation of, or is offered for sale under the

name of, another [economic poison] pesticide or 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 registration number assigned under

section 7 to each establishment in which it was produced;

(E) 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) and in such terms as to render it likely to be read and understood by the ordinary individual

under customary conditions of purchase and use; [(c)] (F) [if] the labeling accompanying it does not contain directions for use which are necessary for effecting the purpose for which the

product is intended and if complied with, together with any requirements imposed under section 3(d) of this Act, are adequate [for the protection

of the public] to protect health and the environment;

[(d)] (A) [if] the label does not contain a warning or caution state- ment which may be necessary and if complied with, together with 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 used in accordance with the requirements imposed under this

Act or commonly recognized practice, it nevertheless causes substantial

adverse effects on the environment. In the case of a plant regulator,

defoliant, or dessicant used in accordance with its labeling, physical or physiological effects on plants or parts thereof shall not be deemed to be

injury when such effects are the purpose for which the plant regulator,

defoliant, or dessicant was applied.

(2) A pesticide is misbranded if-

[(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 the retail 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 under
41

customary conditions of purchase;], except that a pesticide is not

misbranded under this subparagraph if:

(i) the size or form of the immediate container, or the outside

container or wrapper qf the retail package, makes it impracticable to place the ingredient statement on the part which is presented or

displayed under customary conditions of purchase; and

(ii) the ingredient statement appears prominently on another part

qf the immediate container, or outside container or wrapper, permitted by the Administrator;

(B) the labeling does not contain a statement of the use classification

under which the product 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 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

bearing-

(i) the name and address oJ the producer, registrant, or person for

whom produced;

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

sold;

(iii) the net weight or measure of the content: Provided, That the

Administrator may permit reasonable variations; and

(iv) when required by regulation of the Administrator to effectuate

the purposes of this Act, the registration number assigned to the pesticide under this Act, and the 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

matter required by this Act-

(i) the skull and crossbones;

(ii) the word "poison" prominently in red on . background of

distinctly contrasting color; and

(iii) a statement of a practical treatment (first aid or otherwise) in

case of poisoning by 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) and in such terms as to render it likely 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 it is applied, or to the person applying such economic poison; or

[(h) if in 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 it is 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" means all vertebrate and invertebrate

species, including but not limited to man and other mammals, birds,

fish, and shellfish.

(e) CERTIFIED APPLICATOR, ETC.-

(1) CERTIFIED APPLICATOR.-The term "certified applicator"

means any individual who is certified under section 4 as authorized

to use or supervise the use of any pesticide which is classified for

restricted use. (2) PRIVATE APPLICATOR.-The term "private applicator" means a certified pesticide applicator who uses or supervises the use of any

pesticide which is classified for restricted use for purposes of producing any agricultural commodity on property owned or rented

by him or his employer or (if applied without compensation other

than trading of personal services between producers of agricultural

commodities) on the property of another person.

(6) COMMERCIAL APPLICATOR.-The term "commercial applicator" means a certified applicator (whether or not he is a private applicator with respect to some uses) who uses or supervises the use of any pesticide which is classified for restricted use for any purpose or on any property other than as provided by paragraph (2).

(4) UNDER THE DIRECT SUPERVISION OF A CERTIFIED

APPLICATOR.-Unless otherwise prescribed by its labeling, a pesticide shall be considered to be applied under the direct supervision of a certified applicator if it is applied by a competent person acting

under the instructions and control of a certified applicator who is

available if and when needed, even though such certified applicator

is not physically present at the time and place the pesticide is applied.

(i) DISTRICT COURT.-The term "district court" means a United

States district court, the District Court of Guam, the District Court of

the Virgin Islands, and the highest court of American Samoa.

(j) ENVIRONMENT.-The term "environment" includes water, air,

land, and all plants and man and other animals living therein, and the

interrelationships which exist among these.

(1) IMMINENT HAZARD.-The term "imminent hazard" means a situation which exists when the continued use of a pesticide during the

time required for cancellation proceeding would be likely to result in

substantial adverse ejects on the environment or will involve hazard to the survival of a species declared endangered by the Secretary of the

Interior under Public Law 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 other form of terrestrial or aquatic plant or

animal life or virus, bacteria, or other micro-organism (except viruses,

bacteria, or other micro-organisms on 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

person who manufactures, prepares, compounds, propagates, or processes

any pesticide or device. The term "produce" means to manufacture, prepare, compound, propagate, or process any pesticide or device.

(X) PROTECT HEALTH AND THE ENVIRONMENT.- The terms "protect

health and the environment" and "protection of health and the environment" means protection against any injury to man and protection against

any substantial adverse effects on environmental values, taking into

account the public interest, including benefits from the use of the pesticide.

(Z) REGISTRATION.- The term "registration" includes reregistration.

(bb) SUBSTANTIAL ADVERSE EFFECTS ON THE ENVIRONMENT.-The

term "substantial adverse effects on the environment" means any injury

to man or any substantial adverse effects on environmental values, taking

into account the pullic interest, including benefits from the use oJ the

pesticide.

(dd) ESTARLISHMENT.- The term "establishment" means any place

where a pesticide or device is produced, or held, for distribution or sale.

Comparison of section 3 of existing law with section 12 of the bill.

[Prohibited Acts]

SEC. 12. UNDLAWFUL ACTS.

(a) IN GENERAL.-

SeOo 3. of [Sec. 3.a. It] (1) Except as provided by subsection (b), it shall be un- &ii~g 1- 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 of this Act, or] under

section 3, except as provided by section 6(a) (1);

(B) any [economic poison] registered pesticide if any [of the] claims

made for it [or any of the directions for its use] as a part of its distribution or sale substantially differ [in substance] from [the representations] any claims made for it as a part of the statement required in connection with its registration under section 3; [, or if the composition

of an economic poison differs from its composition as represented]
(C) any registered pesticide the composition of which differs at the

time of its distribution or sale from its composition as described in the

statement required in connection with its registration under section 3;

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 the registrant'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 of the 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 discolored pursuant to the provisions of section 24 (c) (5),
[(5)] (E) [Any economic poison] any pesticide which is adulterated or misbranded; or

(F) any device which is misbranded.

Comparison of section 3b of existing law with section 17(a) of the

bill.

section b of [b.] (a) Pesticides aid Devices Intended for 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. Uof l.O [c.] (2) It shall be unlawful for any 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 records required pursuant io section 8, or to refuse to allow the inspection of any records or establishment pursuant to section 8 or 9, or to refuse to allow an officer or employee of the

Environmental Protection Agency to take a sample of any pesticide

pursuant to 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 Protection Agency 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] needing such information for the

performance of their duties, in accordance with such directions as the

[Secretary] Administrator may prescribe, any information [relative to formulas of products] acquired by authority [of section 4] of this

Act which is confidential under this Act[.];

(E) who is a registrant, wholesaler, dealer, retailer, or other distributor to advertise a product registered under this Act for restricted use without

giving the classification of the product signed to it under section 3;
(F) to make available for use, or to use, any registered pesticide classified for restricted use for some or all purposes other than in accordance

with section 3(d) and any regulations thereunder;

(G) to use any registered pesticide in a manner inconsistent with its

labeling;

(H) to use any pesticide which is under an experimental use permit

contrary to the provisions of such permit;

(I) to violate any order issued under section 13;

(J) to violate any suspension order issued under section 6;

(K) to violate any cancellation of registration of a pesticide under

section 6, except as provided by section 6(a)(1);

(L) who is a producer to violate any of the provisions of section 7;

(M) to knowingly falsify all or part of any application for registration, application for experimental use permit, any information submitted

to the Administrator pursuant to section 7, any records required to be

maintained pursuant to section 8, any report tiled under this Act, or any

information marked as confidential and submitted to the Administrator

under any provision of this Act;

(N) who is a registrant, wholesaler, dealer, retailer, or other distributor

to fail to file reports required by this Act; 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 of Columbia, 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 set out infra after 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 be registered

as a single economic poison; and additional names and-labels shall be

added by supplemental statements;] Except as otherwise provided by

this Act, no person in any State may distribute, sell, offer for sale, hold

for sale, ship, deliver for shipment, or receive and (having so received)

deliver or offer to deliver, to any person any pesticide which is not registered with the Administrator.

For section 3(b) of the bill, see section 4e of existing law.

(C) PROCEDURE FOR REGISTRATION-.

(1) STATEMENT REQUItsD.-[the] Each applicant for registration

of a pesticide shall file with the [Secretary] Administrator a 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 of the pesticide [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 application shall not, without permission of the applicant, be con- sidered by the Administrator in support of any other application for registration Provided, That the Administrator may refer to any

applicant's test data in making a determination of the adequacy of

the test data of the applicant noder consideration;

Compare the following paragraph with the first sentence of section

4b of existing law.

(E) the complete form ula of the pesticide; and

(F) a request that the pesticide be classified for general use, for

restricted use, or for both.

(2) DATA IN SUPPORT OF REGISTRATIO.- The Administrator shall

publish guidelines specifying the kinds of in formation which will be

required to support the registration of a pesticide and shall revise such

guidelines from time to time. If thereafter he requires any additional kind

of information he shall permit suicient time for applicants to obtain

such additional information. Except as provided by subsection (c) (1) (D)

of this section and section 10, within 30 days after the Administrator

registers a pesticide under this Act he 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 decision. (3) TIME FOR ACTING WITH RESPECT TO APPLICATION. The Administrator shall review the data after receipt of the application and shall, as expeditiously as possible, either register the pesticide in accordance

with paragraph (5), or notify the applicant of his determination that it

does not comply with the provisions of the Act in accordance with paragraph (6).

(4) NOTICE OF APPLICATION. The Administrator shall publish in

the Federal Register, promptly after receipt of the statement and other

data required pursuant to paragraphs (1) and (2), a notice of each

application for registration of any pesticide if it contains any new active

ingredient or if it would entail a changed use pattern. The notice shall

provide for a period of 30 (lays in which any Federal agency or any other

interested person may comment. Section 4b of [b.] (5) Approval of Registration.-Compare the following sentence Existing Law 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 of the 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 tnder subsection (d)

(A) its composition is such as to warrant the proposed claims for

it;
48

(B) its labeling and other material required to be submitted

comply with the requirements of this Act; and

(C) it will perform its intended function without substantial

adverse effects on the environment.

The Administrator shall not make any lack of essentiality a criterion for

denying registration of any pesticide.

[c.] (6) Denial of Registration.-[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 the Adminis- trator determines that the requirements of paragraph (5) for registration are not satisfied, 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 of his reasons (including the factual basis) therefor,

and that, unless the applicant corrects the conditions and notifies the

Administrator thereof during the 30-day period beginning with the day

after the date on which the applicant receives the notice, the Administrator

may refuse to register the pesticide. [If, upon receipt of such notice, the

applicant for registration does not make the corrections, the Secretary

shall refuse to register the article.] Whenever the Administrator refuses to register a pesticide, he shall notify the applicant of his decision and of

his reasons (including the factual basis) therefor. The Administrator shall

promptly publish in the Federal Register notice of such denial of registration and the reasons therefor. Upon such notification, the applicant for

registration or other interested person with the concurrence of the applicant

shall have the same remedies as provided for in section 6.
Note: Compare the following with sections 6(b) and 6(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 of an economic poison or

determines that registration of an economic poison should

be cancelled, he shall notify the applicant for registration or the registrant of his action and the reasons therefor.

Whenever an application for registration is refused, the

applicant, within thirty days after service of notice of

such refusal, may file a petition 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 of Sciences 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

of a pesticide the registrant has additional factual information 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 not appear to the Administrator that a pesticide or

its labeling or other material required to be submitted complies

with the provisions of this Act, the Administrator may issue

a notice of his intent either-

(1) to cancel its registration or to change its classification together with the reasons (including the factual

basis) for his action, or

(2) to hold a hearing to determine whether or not its

registration should be cancelled or its classification

changed.

Such notice shall be sent to the registrant and made public.

The proposed action shall become final and effective at the end

of 30 days from receipt by the registrant, or publication, of a

notice issued under paragraph (1), whichever occurs latest,

unless within that time' either (i) the registrant makes the

necessary corrections, if possible, or (ii) a request for a

hearing is made by a person adversely affected by the notice.

In the event a hearing is held pursuant to such a request or to

the Administrator's determination under paragraph (2), a

decision pertaining to registration or classification issued after

completion of such hearing shall be final.

Subsection (c) is compared, infra, with the corresponding material at 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 of the United States. The

Secretary shall furnish the committee with adequate

clerical and other assistance, and shall by rules and

regulations prescribe the procedures to be followed by the

committee. The Secretary shall forthwith submit to such

committee the application for registration of the article

and all relevant 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 of the views of the committee and all other data

before him, the Secretary shall, within ninety days after

receipt of the 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 requested pursuant to subsection (b)

or determined upon by the Administrator pursuant to 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 interested parties, or to the issues stated by the

Administrator, if the hearing is called by the Administrator

rather than by the filing of objections. Upon a showing of

relevance and reasonable scope of evidence sought by any

party to a public hearing, the Hearing Examiner shall issue

a subpena to compel testimony or production of documents

from any person. The Hearing Examinei shall be guided

by the principles of the Federal Rules of Civil Procedure in

making any order for the protection of the witness or the

content of documents produced and shall order the payment of

reasonable fees and expenses as a condition to requiring

testimony of the witness. On contest, the subpena may be

enforced by an appropriate United States District Court in

accordance with the principles stated herein. Upon the request

of any party to a public hearing or when in the Hearing

Examiner's judgment it is necessary or desirable, the Hearing

Examiner shall at the outset of the hearing refer to a Committee of the National Academy of Sciences the relevant

questions of scientific fact involved in the public hearing. The

Committee of the National Academy of Sciences shall report

in writing to the Hearing Examiner within 60 days after

such referral on these questions of scientific fact. The report

shall be made public and shall be considered as part of the

hearing record. The Administrator shall enter into appropriate arrangements with the National Academy of Sciences

to assure an 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 the Administrator for carrying out the purposes

of this Act. As soon as practicable after completion of ee

T AVAILABLE COPY
trant. 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 is requested, 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 the record of the 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 of Sciences 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 to the Secretary by an advisory committee,

and shall set forth detailed findings of fact 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 (including the report of the Academy) but not later

than 90 days thereafter, the Administrator shall evaluate the

data and reports before him and issue an order either revoking

his notice of intention issued pursuant to this section, or

shall issue an order either cancelling the registration, changing the classification, denying the registration, or requiring

modification of the labeling or packaging of the article. Such

order shall be based only on substantial evidence of record

of such hearing and shall set forth detailed findings of fact

upon which the order is based.
Notwithstanding thc provisions of section 3c(4), informa- tion relative to formulas of products 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 

ment or representatives of the United States Depart- of Agriculture, 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 registramission 

tion of an article be construed as a defense for the com- of any offense prohibited under section 3 of this

Act.]

Section 6(c) of the bill is as follows: SUSPENSION. -

(1) ORDER.-If the Administrator determines that action is necessary to prevent an imminent hazard during the time required for cancellation or change in classifica- tion proceedings, he may, by order, suspend the regis- tration of the pesticide immediately. No order of suspen- sion may be issued unless the Administrator has issued or at the same time issues notice of his intention to cancel the registration or change the classification of the pesticide.

Except as provided in paragraph (3), the Administra- tor shall notify the registrant prior to issuing any sus- pension ordir, such notice shall include findings per- taining to the question of "imminent hazard" The registrant shall then have an opportunity, in accordance with the provisions of paragraph (2), for an expedited hearing before the Agency on the question of whether an imminent hazard exists.

(2) EXPEDITE HEARING.-If no request for a hearing is submitted to the Agency within five days of the regis- trant's receipt of the notification provided for by para- graph (1), the suspension order may be issued and shall take effect. If a hearing is requested, it shall commence within five days of the receipt of the request for such hearing unless the registrant and the Agency agree that it shall commence at a later time. The hearing shall be held in accordance with the provisions of subchapter II of title 5 of the United States Code, except that the presiding officer need not be a certified hearing examiner. No party other than the registrant and the Agency shall participate except that any person adversely affected may file briefs within the time allotted by the Agency's rules. The pre- siding officer shall have ten days from the conclusion of the presnt on of evidence to submit recrmmendedflnJ ings and conclusions to the Adminisrato, woho shall thens
have suspension. seven days to render a fioat order on thie, isssie oj

() EMEREn CY ORDER.-Whenever the Administrator determines that an emergency exists that does not

permit him to hold a hearing before suspending, he may

issue a suspension order in advance of notification to the

registrant. In that case, paragraph (2) shall apply except

that the order of suspension shall be in effect pending the

expedition s completion of the remedies provided by

that paragraph and the issuance of a final order on

supedion.

()JCpensio' E A final order on the question

(I4) uDt cIAL REVIEW.-z 11 be....... . i.

Of suspension following a hearing shall be reviewable in

accordance with Section 16 of this Act notwithstanding

the fact that any related cancellation proceedings have

not been completed. Petitions to review orders on the

issue of suspension shall be advanced on the locket of the

courts of appeals. Any order of suspension entered

prior toa hearing before the Administrator shall be subject to immediate review in an action by the registrant

or other interested person with the concurrence of the

registrant in an appropriate district cou"'t, solely to determine whether the order of suspension was arbitrary,

capricious or an abuse of discretion, or whether the order

was issued in accordanc with the procedures established

by law. The effect of any order of the c court will be only to

stay the effectiveness of the suspension order, pending

hearing before the Administrator. This action may be

maintained simultaneously with any administrative

review proceeding under this section. The commencement

of proceedings under this paragraph shall not operate as

a stay of order, unless ordered by the covrt.

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

(e) JUDICIAL REVIEW. -Final orders of the Administrator

under this section shall be subject to judicial review pursuant

to section 15.
Comparison of section 4d of existing law with section 16(b) of the

bill.

S4dof [d.] (b) Review by Court of Appeals.-In [a] the case of actual 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 film5

in the United States court of appeals for the circuit wherein suoc

person resides or has [his principal] a place of business, [or in the

United States Court of Appeals for the District of Columbia Circuit,]

within [sixty] 60 (lays after the entry of such order, a petition praying

that the order be set aside in whole or in part. A copy of the petition

shall be forthwith transmitted by the clerk of the court to the [Secretary,] Administrator or any officer designated by him for that purpose,

and thereupon the [Secretary] Administrator shall file in the court the

record of the proceedings on which he based his order, as provided in

section 2112 of title 28, United States Code. Upon the filing of such

petition the court shall have exclusive jurisdiction to affirm or set

aside the order complained of in whole or in part. The court shall

consider all evidence of record. The [findings] order of the [Secretary]

Administrator [with respect to questions of fact] 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 disposition of all [causes] cases filed 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 pesticide which is not registered with the Administrator may be transferred if-

(1) the transfer is from one registered establishment to another

registered establishment operated by the same producer solely for

packaging at the second establishment or for use as a constituent

part of another pesticide produced at the second establishment; or

(2) the transfer is pursuant to and in accordance with the re- quirements of an experimental use permit.
55

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

[f.] (a) Cancellation After Five Years.- s fion Hf

(1) Procedure.-The [Secretary] Administrator [is authorized to] Ei" '

'shall cancel the registration of any [economic poison] pesticide at the

end of [a period of five years following the registration of such eco- nomic poison] the five-year period which begins on the date of its registration (or at the end of any five-year period thereafter [,]) unless the registrant, or other interested person with the concurrence of the registrant,

[prior to] before the [expiration] end of [each] such [five-year] :period, requests in accordance with regulations [issued by the Sec-

:retary] prescribed by the Administrator that [such] the registration

be continued in effect: Provided, That the Administrator may permit

the continued sale and use of existing stocks of a pesticide whose registration is canceled under this subsection or subsection (b) to such extent,

under such conditions, and for such uses as he may specify if he determines

that such sale or use is not inconsistent with the purposes of this Act

and will not have substantial adverse effects on the environment. The

Administrator shall publish in the Federal Register, at least 30 days

prior to the expiration of such five-year period, notice that the registration

will be canceled if the registrant or other interested person with the con- arrence of the registrant does not request that the registration be continued

in effect.

The following constitute sections 3(d) through 3(f) of the bill.

(d) CLASSIFICATION OF PESTICIDES.-

(1) CLASSIFICATION FOR GENERAL USE, RESTRICTED USE, OR

BOTH.-

(A) As a part of the registration of a pesticide the Administrator shall classify it as being for general use or for restricted

use, provided that if the Administrator determines that some of

the uses for which the pesticide is registered should be for general use and that other uses for which it is registered should be for

restricted use, he shall classify it for both general use and

restricted use. If some of the uses of the pesticide are classified

for general use and other uses are classified for restricted use,

the directions relating to its general uses shall be clearly separated and distinguished from those directions relating to its

restricted uses: Provided, however, That the Administrator may

require that its packaging and labeling for restricted uses shall

be clearly distinguishable from its packaging and labeling for

general uses. (B) If the Administrator determines that the pesticide, when

applied in accordance with its directions for use, warnings and

cautions and for the uses for which it is registered, or for one or

more of such uses, or in accordance with a commonly recognized

practice, will not cause substantial adverse effects on the environment, he will classify the pesticide, or the particular use or

uses of the pesticide to which the determination applies, for

general use.
(C) If the Administrator determines that the pesticide,

when applied in accordance with its directions for use, warnsngs and cautions and for the uses for which it is registered, or for

one or more of such uses, or in accordance with a commonly

recognized practice, may cause, without additional regulatory

restrictions, substantial adverse effects on the environment, including injury to the applicator, he shall classify the pesticide, or the particular use or uses to which the determination applies, for restricted use. (i) If the Administrator classifies a pesticide, or one or more uses of such pesticide, for restricted use because of a determination that the acute dermal or inhalation toxicity

of the pesticide presents a hazard to the applicator or other persons, the pesticide shall be applied for any use to which the restricted classification applies only by or under the direct supervision of a certified applicator.

(ii) If the Administrator classifies a pesticide, or one or more uses of such pesticide, for restricted use because of a determination that its use without additional regulatory

restriction may cause substantial adverse effects on the

environment, the pesticide shall be applied for any use to which the determination applies only by or under the direct

supervision of a certified applicator, or subject to such other

restrictions as the Administrator may provide by regulation.

Any such regulation shall be reviewable in the appropriate court of appeals upon petition of a person adversely affected filed within 60 days of the publication of the regulation in

final form.

(2) CHANGE IN CLASSIFICArIOu.-If the Administrator deter- mines that a change in the classification of any use of a peticide from general use to restricted use is necessary to prevent substantial

adverse effects on the environment, he shall notify the registrant of such pesticide of such determination at least 30 days before making the change and shall publish the proposed change in the Federal

Register. The registrant, or other interested person with the concur- rence of the registrant, may seek relieffrom such determination under

section 6(b).

Compare the following with the proviso in section 4a of existing law.

(e) PRODUCTS WITH SAME FORMULATION AND CLArs.-Producs which have the same formulation, 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 pesticide may be

registered as a single pesticide; and additional names and labels shall be

added to the registration by supplemental statements. (f) MISCELLANEOUSCompare the following with the proviso at the end of section 3a(l)

of existing law.

(1) EFFECT OF CHANGE OF LABELING OR FORMULATION.-If the labeling orformulation for a pesticide is changed, the registration shall be amended to reflect such change if the Administrator determines that the change will not violate any provision of this Act.

Compare the following with the last sentence of section 4c of

existing law.

(2) REGISTRATION NOT A DEFENSE.-In no event shall registration of an article be construed as a defense for the commission of any offense under this Act: Provided, That as long as no cancellation

proceedings are in effect registration of a pesticide shall be prima face evidence that the pesticide, its labeling and packaging comply with the registration provisions of the Act.
Compare the following with similar sentence in section 4c of

existing law.

(3) AUTHORITY TO CONSULT OTHER FEDERAL AGENCIES.-In

connection with consideration of any registration or application for registration under this section, the Administrator may consult with

any other Federal agency.

The following constitutes sections 4 and 5 of the bill.

SEC. 4. USE OF RESTRICTED USE PESTICIDES; CERTIFIED APPLICATORS.

(a) CERTIFICATION PROCEDURE.-

(1) FEDERAL CERTIFICATION.-Subject to paragraph (2), the

Administrator shall prescribe standards for the certification of applicators of pestic ies. Such standards shall provide that to be

certified, an individual must be determined to be competent with

respect to the use and handling of pesticides, or to the use and handling of the pesticide or class of pesticides covered by such individual's

certification. (2) STATE CERTIFICATION.-if any State, at any time, desires to certify applicators of pesticides, the Governor of such State shall

submit a State plan for such purpose. The Administrator shall

approve the plan submitted by any State, or any modification thereof,

if such plan in his judgment- (A) designates a State agency as the agency responsible for

administering the plan throughout the State; (B) contains satisfactory assurances that such agency has or will have the legal authority and qualified personnel necessary to carry out the plan; (C) gives satisfactory assurances that the State will devote

adequate funds to the administration of the plan. (D) provides that the State agency will make such reports to the Administrator in such form and containing such informa- tion as the Administrator may from time to time require; and

(E) contains satisfactory assurances that State standards

for the certification of applicators of pesticides conform with

those standards prescribed by the Administrator under

paragraph (1). Any State certification program under this section shall be maintained

in accordance with the State plan approved under this section.

(b) STATE PLANS.-If the Administrator rejects a plan submitted

under this paragraph, he shall afford the State submitting the plan due

notice and opportunity for hearing before so doing. If the Administrator

approves a plan submitted under this paragraph, then such State shall

certify applicators of pesticides with respect to such State. Whenever the

Administrator determines that a State is not administering the certification

program in accordance with the plan approved under this section, he

shall so notify the State and provide for a hearing at the request of the

State, and, if appropriate corrective action is not taken within a reasonable

time, not to exceed ninety days, the Administrator shall withdraw approval

o] such plan.
58

SEC. 5. EXPERIMENTAL USE PERMITS.

(a) ISSUAYCE.-Any person may apply to the Administrator for an experimental use permit for a pesticide. The Administrator may issue an experimental use permit if he determines that the applicant needs

such permit in order to accumulate information necessary to register a pesticide under section 3. An application for an experimental use permit

may be filed at the time of or before or after an application for registration

isfiled.

(b) TEMPORARY TOLERANCE LEVEL.-If the Administrator determines

that the use of a pesticide may reasonably be expected to result in any residue on or in food or feed, he may establish a temporary tolerance levl

for the residue of the pesticide before issuing the experimental use permit. (c) USE UNDER PERMIT.-Use of a pesticide under an experimental use permit shall be under the supervision of the Administrator, and shall

be subject to such terms and conditions and be for such period of time as the Administrator may prescribe in the permit.

(d) STUDIES.-When any experimental use permit is issued for a pesticide containing any chemical or combination of chemicals which has not been included in any previously registered pesticide, the Administrator

may specify that studies be conducted to detect whether the use of the

pesticide under the permit may cause substantial adverse effects on the

environment. All results of such studies shall be reported to the Adminis. trator before such pesticide may be registered under section 3.

(e) REVOCATION.-The Administrator may revoke any experimental use permit, at any time, if he finds that its terms or conditions are being violated, or that its terms and conditions are inadequate to avoid substantial

adverse effects on the environment.

(f) STATE ISSUANCE OF PERMITS.-Notwithstanding the foregoing provisions of this section, the Administrator may, under such terms and

conditions as he may by regulations prescribe, authorize any State to issue an experimental use permit for a pesticide. All provisions of section 4 relating to State plans shall apply with equal force to a State plan for the issuance of experimental use permits under this section. Section 6 of the bill is compared, supra, with the similar provisions of section 4 of existing law.

Section 7 of the bill is as follows:

SEC. 7. REGISTRATION OF ESTABLISHMENTS.

(a) REQUIREMENT.-No person shall produce any pesticide subject to this Act in any State unless the establishment in which it is produced is registered with the Administrator. The application for registration of any establishment shall include the name and address of the establish- ment and of the producer who operates such establishment. (b) REGISTRATION .- Whenever the Administrator receives an applica- tion under subsection (a), he shall register the establishment and assign it an establishment number.

(c) INFORMATION REQUIRED.- (1) Any producer operating an establishment registered under this section shall inform the Administrator within 30 days after it is registered of the types and amounts of pesticides- (A) which he is currently producing; (B) which he has produced during the past year; and

(C) which he has sold or distributed during the past year. The information required by this paragraph shall be kept current and

submitted to the Administrator annually as required under such regulations as the Administrator may prescribe. (2) Any such producer shall, upon the request of the Administrator

for the purpose of issuing a stop sale order pursuant to section 18, inform him of the name and address of any recipient of any pesticide produced in any registered establishment which he operates.
(d) CONFIDENTIAL RECORDS AND INFORMATION.-Any information

submitted to the Administrator pursuant to subsection (c) shall be con-

;sidered confidential and shall be subject to the provisions of section 10.

[Books and Records]

,SEC. 8. BooKs AND RECORDS. SetionSof

[Sec. 5.] (a) REQUIREMENT.-The Administrator may prescribe regu- EisingL"

nations requiring producers to maintain such records with respect to their

,operations and the pesticides and devices produced as he determines are

necessary for the effective enforcement of this Act. No records required

under this subsection shall extend tofinancial data, sales data other than

,shipment data, pricing data, personnel data, and research data (other

than data relating to registered pesticides or to a pesticide for which an

application for registration has 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 Protection Agency or of any State [, Territory,] or

political subdivision, duly designated by the [Secretary] Administrator,

furnish or permit such person at all reasonable times to have access to,

and to copy :(1) all records showing the delivery, movement, or holding

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 respect to any records and

information referred to in this subsection shall not extend to financial

data, sales data other than shipment data, pricing data, personnel data,

and research data (other than data relating to registered pesticides or to a

pesticide for which an application for registration has been 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] prescribe regulations [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 compare the following clause with subsection (c) (6) infra the determination and establishment of suitable names to be used in the ingredient

statement]. Such regulations shall take into account the difference in

concept and usage between various classes of pesticides.
60

"(b) EXEMPTION OF PESTICIDES.-The Administrator may exempt'

from the requirements of this Act by regulation any pesticide which k

determines either (1) to be adequately regulated by another Federal agency,

or (2) to be of a character which is unnecessary to be subject to this Act

in order to carry out the purposes of this Act.

(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, and other micro-organisms on or in living man or other living animals) which

is injurious to [plants, man, domestic animals, articles, or substances] health or the environment;

(2) to determine [economic poisons] any pesticide which

contains any substance or substances in 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

Packaging Act (Public Law 91-601)) with respect to the package,

container, or wrapping in which a pesticide or device is enclosed

for use or consumption, in order to protect children and adults from

serious injury or illness resulting from accidental ingestion or contact with pesticides or devices regulated by this Act as well as to accomplish the other purposes of this Act;

(4) to specify those classes of devices which shall be subject to any provision of paragraph 2(q)(1) or section 7 of this Act upon his

determination that application of such provision is necessary to effectuate the purposes of this Act;

[3](5) [to determine standards of coloring or discoloring for economic poisons, and to subject economic poisons to the require- ments of section 3a(4) of this Act[.] to prescribe regulations

reguirinq any pesticide to be colored or discolored if he determines

that such reguirement is feasible and is necessary for the protection of

health and the environment; and

Compare the following with the similar clause in section 6a

of existing law supra.

(6) to determine and establish suitable names to be used in the

ingredient statement.

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 of Agriculture], in consultation with the Administrator, shall

[jointly] prescribe regulations for the enforcement of this section

[10 of this Act].
Comparison of section 6c of existing law with section 9(c) of the bill.

[c.] (c) Enforcement.- Section 6 of

(1) CERTIFICATION OF FACTS TO ATTORNEY GENERAL.-The m'g 1w

examination of [economic poisons] pesticides or devices shall be

made in the [United States Department of Agriculture] Environmental Protection Agency or elsewhere as the [Secretary] Administrator may designate for the purpose of determining from

such [examination] examinations whether 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] Administrator shall cause notice to be given to the person against whom criminal or civil proceedings are contemplated. Any person so notified shall be given an opportunity to present his views, either orally or in writing, with regard

to such contemplated proceedings, and if in the opinion of the

[Secretary] Administrator it appears that the provisions of this

Act have been violated by such person, then the [Secretary] Administrator shall certify the facts to the [proper United States

at torney] ey General, with a copy of the results of the

analysis or the examination of such [article:] pesticide for the

institution of a criminal proceeding pursuant to section 14(b) or a

civil proceeding under section 14(a), when the Administrator

determines that such action will be sufficient to effectuate the purposes

of this Act:

(2) NOTICE NOT REQUIRED.-The notice of contemplated proceedings and opportunity to present views set forth in this subsection

are not prerequisites to the institution of any proceeding by the

Attorney General.

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

this Act shall be construed as requiring the [Secretary] Administrator to [report for prosecution or for the institution of libel

proceedings] institute proceedinqs for prosecution of minor violations of this Act whenever he believes that the public interest

will be adequately served by a suitable written notice of warning.

Comparison of sections 6 d and e of existing law with sections 15 (c)

and (d) of the bill.

[d. It shall be the duty of each United States attorney, to whom Section 6d 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 with jurisdiction specifically to enforce, and to

prevent and restrain violations of, this Act.

[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 of section 7 of existing law with section 12(b) of the bill.
62

[EXEMPTIONS]

Section 7 of [SEc. 7.a.] (b) Exemptions.-The penalties provided for a violation

(There i' no of [section 3a of this Act] paragraph (1) of subsection (a) shall not subsion b) 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] pesticide in the same unbroken

package, to the effect that the [article] pesticide was lawfully registered at the time of sale and delivery to him, and that it

complies with the other requirements of this Act, [designating this Act. In] and in such case the guarantor shall be subject to the

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, or delivering for shipment

any pesticide or device, if such carrier upon request [by a person] of any officer or employee duly designated by the [Secretary] Administrator shall permit such [person] officer or employee to

copy all of its records [showing the transactions in and movement

of the articles] concerning such pesticide or device;

(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 the field of economic poisons; or by others if a permit has been

obtained before shipment in accordance with regulations promul- gated by the Secretary] any person using or possessing any pesticide as provided by an experimental use permit in effect with

respect to such pesticide and such use or possession; or (5) any person who ships a substance or mixture of substances

being put through tests in which the purpose is only to determine its

value for pesticide purposes or to determine its toxicity or other prop- erties and from which the user does not expect to receive any benefit

in pest controlfrom its use.

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

Section t of SEC. 14. PENALTIES. [Penalties] Existing Law, (a) CIVIL PENALTIES.-

(1) IN GENERAL.-Any registrant, commercial applicator, wholesaler, dealer, retailer, or other distributor who violates any provision of this Act may be assessed a civil penalty by the Administrator

of not more than $6,000 for each offense.

(2) PRIVATE PESTICIDE APPLICATOR.-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 the Administrator or following a citation for a prior violation,

may be assessed a civil penalty by the Administrator of not more than $1,000 for each offense.
63

(3) HEARING.-No civil penalty shall be assessed unless the

person charged shall have been given notice and opportunity for a

hearing on such charge in the county, parish, or incorporated city of

the residence of the person charged. In determining the amount of the

penalty the Administrator shall consider the appropriateness of such

penalty to the size of the business of the person charged, the effect on

the person's ability to continue in business, and the gravity of the

violation.

(4) REFERENCES TO ATTORNEY GENERAL.-In case of inability

to collect such civil penalty or failure of any person to pay all, or

such portion of such civil penalty as the Administrator may determine,

the Administrator shall refer the matter to the Attorney General, who

shall recover such amount by action in the appropriate United States

district court.

(b) CRIMINAL PENALTIES.-

[SE c. 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 other distributor who 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 other person not included in paragraph (1) who knowingly violates any

provision of this Act shall be guilty of a misdemeanor and shall on conviction be fined not more than $1,000, or imprisoned for not more

than 50 days, or both.

[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, or imprisoned 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 the person employed.

Comparison of section 9 of existing law with section 13 of the bill.
64

[SEIZURES]

SEC. 13. Stop Sale, Use, Removal and Seizure.

sedo, 9of [Sec. 9.] (a) STOP SALE, ETC., ORDERs.-Whenever any pesticide Exng law, or device is found by the Administrator in any State and there vs reason

to believe on the basis of inspection or tests that such pesticide or de

is in violation of any of the provisions of this Act, or that such pestioi& or device has been or is intended to be distributed or sold in violation of

any such provisions, or when the registration of the pesticide or d e has been canceled by afinal order or has been suspended, the Administrator

may issue a written or printed "stop sale, use, or removal" order to any

person who owns, controls, or has custody of such pesticide or device, and

after receipt of such order noperson shall sell, use, or remove the pesticide or device described in the order except in accordance with the provisions

of the order.

[a.] (b) Seizure.-Any [economic poison] pesticide or device that is

being transported [from one State, Territory, or District to another,]

or, having been transported, remains unsold or in orginal unbroken

packages, or that is sold or offered for sale in [the District of Columbia 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 it is found and seized for

confiscation by a process [of libel] in rem for condemnation if- (1) in the case of [an economic poison] a pesticide- [(a)] (A) [if] it is adulterated or misbranded; [(b)] (B) [if] it is not registered pursuant to the provisions of

section [4 of this Act] 3; [(c)] (C) [if it fails to bear on its label] its labeling fails to bear the

information required by this Act; [or] [(d)] (D) [if] it is [a white powder economic poison and is] not colored or discolored and such coloring or discoloring is [as] required under this Act; or (E) any of the claims made for it or any of the directions for its use differ in substance from the representations made in connection with its

registration;

(2) in the case of a device [if], it is misbranded [.]; or (3) in the case of a pesticide or device, when used in accordance with

the requirements imposed under this Act and as directed by the labeling, it nevertheless causes substantial adverse effects on the environment.

In the case of a plant regulator, defoliant, or desiccant, used in accordance

with the label claims and recommendations, physical or physiological effects on plants or parts thereof shall not be deemed to be injury, when

such effects are the purpose for which the plant regulator, defoliant, or desiccant was applied. [b.] (c) Disposition after Condemnation.- If the [article] pesticide or device is condemned it shall, after entry of the decree, be disposed of

by destruction or sale as the court may direct and the proceeds, if sold, less the [legal] court costs, shall be paid into the Treasury of the

United States, but the [article] pesticide or device 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] condemnation proceedings and the execution and

delivery of a good and sufficient bond conditioned that the [article] pesticide or device shall not be sold or otherwise disposed of contrary to

the provisions of [this] the Act or the laws of any [State, Territory,
65

or District] jurisdiction in which sold, the court may direct that such

[articles] pesticide or device be delivered to the owner thereof. The

proceedings of such [libel] condemnation cases shall conform, as near as may be, to the proceedings in admiralty, except that either party

may demand trial by jury of any issue of fact joined 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 or device, 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 of section 10 of existing law with section 16 of the bill.

[IMPoRTs]

SEC. 16. IMPORTS AND EXPORTS. Section 0 of Existing Law

For a comparison of section 3b of existing 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 of each notice of cancellation of a registration of a pesticide to the governments of other countries and to appropriate international agencies.

(c) Importation of Pesticides and Devices.-[SEc. 10.] The Secretary of the 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 of Agri- culture] Administrator, upon his request, samples of [economic poisons] pesticides or 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 of Agriculture] Administrator and have the right to introduce testimony. If it appears from

the examination of a sample that it is adulterated, or misbranded or otherwise violates the [prohibitions] provisions set forth in this Act, or is 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] injurious to health or the 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] pesticide or device 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 other
purpose, said consignee shall forfeit the full amount of [the] said

bond: And provided further, That all charges for storage, cartage, and

labor on [goods] pesticides or devices 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) Cooperation in International Efforts.-The Administrator shAd,

in cooperation with the Department of State and any other appropriate

Federal agency, participate and cooperate in any international efforts to develop improved pesticide research and 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) of the bill.

[DELEGATION OF DUTIES]

SEc. 21. DELEGATION AND COOPERATION.

Se.tio I.. [SEc. 11.] (a) Delegation.-All authority vested in the [Secretary] Administrator by 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] Environmental Protection Agency as the

[Secretary] Administrator may 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 26 of the bill.

[AUTHORIZATION FOR APPROPRIATIONS AND EXPENDITURES]

SEC. 26. AUTHORIZATION FOR APPROPRIATIONS.

mseti,1f [, [SEc. out of 12.a.] 

any moneys 

There is [hereby] authorized to be appropriated in the Treasury not otherwise appropriated,]

such sums as may be necessary [for] to carry out the [purposes]

provisions [and administration] of this Act for each fiscal year ending June 30, 1972, June 30, 1973, June 30, 1974, and June 30, 1975. The amounts authorized to be appropriated for any fiscal year ending after June 30, 1975, shall be the sums hereafter provided by law' The expenses

of the Federal Government in carrying out the provisions of this Act

shall be paid solely out of funds so appropriated, and no fee other than

reasonable fees for registration of pesticides under section 3 shall be

required to be paid to the Federal Government in connection with any activity under this Act. [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] shall cooperate with the Department of Agriculture, 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,] Federal agency, and any appropriate agency of any State or any political subdivision thereof, in

carrying out the provisions of this Act, and in securing uniformity of

regulations.

Comparison of section 14 of existing law with section 25 of the bill.

[SEPARABILITY]

SEc. 25. Severability.

[SEc. 14.] If any provision of this Act [is declared unconstitu- Stion14

of

tional,] or the [applicability] application thereof to any person or Exwi~gLow

circumstance is held invalid, the [constitutionality of the remainder of

this Act and the applicability thereof to other persons and circumstances shall not be affected thereby] invalidity shall not affect other

provisions or applications of this Act which can be given effect without

regard to the invalid provision or application, and to this end the provisions of this Act are severable.

[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 the Secretary,

upon application, may at any time within one year after sections 3,

8, 9, and 10 of this Act become 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 to
remain 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.-For purposes of enforcing the provisions of this

Act, officers or employees duly designated by the Administrator are

authorized-

(1) to enter, at reasonable times, any establishment or other lace

where pesticides or devices are held for distribution or sale; and

(2) to inspect and obtain samples of any pesticides or devices,

packaged, labeled, and released for shipment, and samples of any

containers or labeling for such pesticides or devices.

Before undertaking such inspection, the officers or employees must present

to the owner, operator, or agent in charge of the establishment or other

place where pesticides or devices are held for distribution or sale, appropri- ate credentials and a written statement as to the reason for the inspection,

including a statement as to whether a violation of the law is suspected. If no violation is suspected, an alternate and sufficient reason shall be

given in writing. Each such inspection shall be commenced and completed

with reasonable promptness. If the officer or employee obtains any samples, prior to leaving the premises, he shall give to the owner, operator, or agent

in charge a receipt describing the samples obtained and, if requested, a portion of each such sample equal in volume or weight to the portion retained. If an analysis is made of such samples, a copy of the results of

such analysis shall be furnished promptly to the owner, operator, or

agent in charge. (b) WARRANTS.-For purposes of enforcing the provisions of_ this

Act and upon a showing to an officer or court of competent jurisdiction that there is reason to believe that the provisions of this Act have been

violated, officers or employees duly designated by the Administrator are empowered to obtain and to execute warrants authorizing-

(1) entry for the purpose of this section;

(2) inspection and reproduction of all records showing the quantity, date of shipment, and the name of consignor and consignee of any pesticide or device found in the establishment which is adulterated,

misbranded, not registered (in the case of a pesticide, or otherwise

in violation of this Act) and 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 pesticide or device; and

(3) the seizure of any pesticide or device which is in violation oj

this Act.

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 submitting data required by this Act, the appli- cant may (1) clearly mark any portions thereof which in his opinion are 'trade secrets or commercial or financial information, and (2) submit such

marked material separately from other material required to be submitted

under this Act.

Compare subsection (b) with similar language in section 4c of

existing law supra.

(b) DiscLosuRE.-Notwithstanding any other provision of this Act,

the Administrator shall not make public 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 the provisions of this Act, information relating to formulas of products acquired by authorization of this 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.

Section 11 of the bill.

SEC. 11. STANDARDS APPLICABLE TO PESTICIDE APPLICATORS.

(a) IN GENERAL.-No regulations prescribed by the- Administrator

for carrying out the provisions of this Act shall require any private

applicator to maintain any records or file any reports or other documents.

(b) SEPARATE STANDARDS.-When establishing or approving standards for licensing or certification, the Administrator shall establish separate

standards for commercial and private applicators.

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 registrations or change

classifications not following a hearing and other final Agency actions not

committed to Agency discretion by law are judicially reviewable in the

district courts.

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 agency from any provision of this Act if he determines that such

exemption would be consistent with the purposes of this Act and would

be in the public interest.

Section 18 of the bill.

SEC. 18. DISPOSAL AND TRANSPORTATION.

(a) PROCEDURES.-The Administrator 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, and accept at convenient locations for safe disposal a pesticide the registration of which

is canceled under section 6(c) if requested by the owner of the pesticide.
(b) ADVICE TO SECRETARY OF TRANSPORTATION.- The Adreij.

istrator shall provide advice and assistance to the Secretary of Transpor.

tation with respect to his functions relating to the transportation o hazardous materials under the Department of Transportation Act (49

U.S.C. 1657), the Transportation of Explosives Act (18 U.S.C. 831-885), the Federal Aviation Act of 1958 (49 U.S.C. 1421-1430, 1472 H), and

the Hazardous Cargo Act (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.

eluding research by grant or contract with other Federal agencies, univeri

ties, or others as may be necessary to carry out the purposes of this Act, and he shall give priority to research to develop biologically integrated alternatives for pest control. The Administrator shall also take care to insure that such research does not duplicate research being undertaken by

any other Federal agency. (b) NATIONAL MONITORING PLAN.-The Administrator shall formu- late and periodically revise, in cooperation with other Federal, State, or local agencies, a national plan for monitoring pesticides.

(c) MONITORING.- The Administrator shall undertake such monitoring activities, including but not limited to monitoring in air, soil, water, man, plants, and animals, as may be necessary for the implementation of this

Act and of the national pesticide monitoring plan. Such activites shall be

carried out in cooperation with other Federal, State, and local agencies.

Section 20 of the bill.

SEC. 20. SOLICITATION OF COMMENTS.

(a) The Administrator, before publishing regulations under this

Act, shall solicit the views of the Secretary of Agriculture. (b) In addition to any other authority relating to public hearings and

solicitation of views, in connection with the suspension or cancellation of a pesticide registration or any other actions authorized under this Act, the Administrator may, at his discretion, solicit the views of all interested

persons, either orally or in writing, and seek such advice from scientists, farmers, farm organizations, and other qualified persons as he deems

proper.

Section 22 of the bill.

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

(a) COOPERATIVE AGREEMENTS.- The Administrator is authorized to enter into cooperative agreements with States-

(1) to delegate to any State the authority to cooperate in the en- forcement of the Act through the use of its personnel or facilities, to train personnel of the State to cooperate in the enforcement of this

Act, and to assist States in implementing cooperative enforcement

programs through grants-in-aid; and

(2) to assist State agencies in developing and administering State

programs for training and certification of applicators consistent

with the standards which he prescribes. (b) CONTRACTS FOR TRAINING.-In addition, the Administrator

is authorized to enter into contracts with Federal or State agencies for the purpose of encouraging the training of certified applicators.
(c) The Administrator may utilize the services of the Cooperative State

Extension Services for informing farmers of accepted uses and other

regulations made pursuant to this Act.

Section 23 of the bill.

SEc. 23. AUTHORITY 01" STATES.

(a) A State may regulate the sale or use of any pesticide or device in

the State, but only if and to the extent the regulation does not permit any

sale or use prohibited by this Act;

(b) such State shall not impose or continue in effect any requirements

for labeling and packaging in addition to or different from those required

pursuant to this Act; and

(e) a State may provide registration for pesticides formulated for

distribution and use within 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 canceled by the Administrator. Such registration shall be

deemed registration under section 3 for all purposes of this Act, but shall

authorize distribution and use only within such State and shall not be

effective for more than 90 days if disapproved by the Administrator

within that period.

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] a pesticide. * * * * * * *
POISON PREVENTION PACKAGING ACT

* * N' * * * *

SEC. 2. For the purpose of this Act-

(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) of the Federal Hazardous Substances Act (15 U.S.C. 1261());

(B) [an economic poison] a pesticide as that term is defiled in

section 2a of the Federal Insecticide, Fungicide, and Rodenticide

Act (7 U.S.C. 135(a)); * * * * * * *

FEDERAL FOOD, DRUG, AND COSMETIC ACT

* * * * * * S

CHAPTER II-DEFINITIONS

SEC. 201. For the purposes of this Act-

(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" within the

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 is used in the production, storage, or transportation of raw

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 it from the necessity of a tolerance. Thirty days after publication ef such a proposal, the Secretary may by order publish a regulation

based upon the proposal which shall become effective upon publication

unless within such thirty-day period a person who has registered, or who has submitted an application for the registration of, [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 the proposal and other relevant data before him to an 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 the proposal together with all underlying data and a statement of the reasons or basis for the recommendations. 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, [an economic poison] a pesticide under 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)

with respect to a pesticide chemical which constitutes, or is an ingredient of, such [economic poison] pesticide, shall, within thirty days or within sixty days if upon notice prior to the termination of such 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 the certification of his proposal

to certify that the pesticide chemical does not appear to be 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 is sought.
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, and Welfare on the basis of the

proposed certification; (B) request a hearing on the proposed certifies.

tion or the parts thereof objected to; or (C) request both such certification and such hearing. If no such action is taken, the Secretary may by

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 of the Secretary of Agriculture as the result of such hearing

shall be made by order 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 in the 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

OF THE

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

3-010 0 WASHINGTON - 1972

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 coin inittee 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 to be 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- merce reported the bill to the 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 to each 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

2d Session 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 and Forestry, 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 committee is opposed to the amendments proposed by the Com- merce Committee because they would1. Give Federal agents for the purpose of enforcing the act

the right to 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

clearly below what is needed (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 on the consumers served by these 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 of their

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 offering evidence (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 is banned in the United States (Amend- ment 5) : 11. Deny the Adniinistrator information essential to his decision 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 of this committee did iot express its views with respect to the hundreds of amendments that were necessarily re- jected by it, this supplemental report is being 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 of these groups, this

report uses the numbering system of the Coimmerce Committee report.

Cornmer-e groupt of amentonenms Oonnittee 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 Committee on 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 doing violence 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 Agricultm me and Forstr" s e smlives that private research will le emnouaraged and bette maid safer ipestitides will le developed if private re- searchieris Ire protected iii thue fiuits Of their labors. The Agri 'mitu'e (Committee mmvisioll woultdI not l)rechlude other e-
Commerce Committee Group of amendments

Position of Committee on Agriculture and Forestry number

searchers from making their own similar tests or sharing by

agreement in the costs and results of research done by others- 2

Advisory committees. This amendment provides for a weak and

ambiguous conflict of interest 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

or other person not in the 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 a wasteful and useless "junk mail"

provision. It provides for sending possibly dangerous and

misleading information to every country in the world without

any request therefor or indication of interest therein. It

evinces a "big brother" attitude and a belief that other soy- ereig n nations can adequately govern their countries only with ou elp. Most important it (1) deletes the provision of the

AgriculIture Committee amendment which would require notice to foreign 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 for export ------------------------- 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 the act, to

wit, the tests and results upon which the claims are based. 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 of litigation. 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 is no need for it. It would give to the Administrator unwarranted authority to deny to a registrant the

opportunity for a full hearing prior to cancellation of his

registration - 8
4

Commerce Comsmittee Group o merente

Position of Committee on Agriculture and Forestry number

Inclusion of farmworkers in term "man". This amendment specifies that the term "man" shall include farmworkers and

others. This part of the 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 to regulate the use of pesticides.

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 felt that regulation by the Federal Government and the

50 States should be sufficient and should preempt the field--- 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 of regular Federal registration of the pesticide for that particular

usage --- - ------- 12

Recordkeeping by private applicators. This amendment authorizes the 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 undue burden in view of the 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 a warrant 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 15
DIFFICULTIES 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 it took just over 1 month. The bill which was enacted

to become 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 by the Senate on June 16, 1947, and became public law

on June 25, 1947. That law has served the country well with minor

amendments over a span of 25 years. Under it, an order banning DDT

has been issued, public spirited citizens have had their days in court,

and much has been done to protect the environment. The United States

has produced food and other agricultural commodities in abundance

to feed and clothe itself and much of the world.

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

was referred to this committee on February 10, 1971. The bill to which

this report relates, H.R. 10729, was referred to this committee on

November 19, 1971. All of these bills would amend the Federal Insecticide, Fungicide, and Rodenticide Act. On December 16, 1971, the chair- 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 of the bill to the Committee on Commerce if and when this

committee chose to report a pesticide bill. The chairman of this com- mittee replied that if at the 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 to is as follows: DECEMBER 16, 1971.

Hon. HERiMAN E. TALMADGE,

Chairman, Agriculture and Forestry Committee, U.S. Senate, Washington, D.C.

DRAR SENATOR TALIADoE: I am aware that your committee has been

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

research on the impact of pesticides in order to protect fish and wildlife

resources from possible adverse effects.

Proper exercise of our jurisdictional responsibilities over those resources would appear to me to justify subsequent consideration by

the Commerce Committee of the pesticide legislation now before you.

If you are in agreement, our committee would appreciate receiving

notification if and when you choose to report a pesticide bill next year.

I would further appreciate your assurance that, if we request rereferral of the bill at that time, you would have no objection. I would
be willing to abide by any time limit for our consideration which

you might find appropriate.

With all good wishes for the holiday season.

Sincerely yours, WARREN G. MAGNUSON, Chairman.

DECEMBER 21,1971.

Hon. WARREN G. MAGNUSON,

Chairman, Committee on Commerce,

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 of which

would generally revise the Federal Insecticide, Fungicide and Rodenticide Act, and I am asking the committee staff to notify the Commerce

Committee staff whenever a bill similar to any of the bills just mentioned is reported. If, at, that time, it appears that your committee has

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 your committee 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 and in 1972 on

these bills. All witnesses who desired to 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 the interest 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's prepared statement, which contains his explanation of the amendments and the amendments themselves, are set, out beginning at page

75 of this committee's printed hearings on H.R. 10729. The comments

of the 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 of this 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 of entry, recordkeeping

by farmers and other 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 &mendments of this type are the most difficult to 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, except to introduce errors into 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 in substance. 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 of essentiality is not one of the criteria and the

Administrator has no authority to make it so without regard to

whether the language proposed to be stricken is 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 would be introduced into the bill by

the adoption of the current version are as follows:

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

costs and benefits be taken into account, "any risk" remains a risk no matter what the benefit to be derived from the action. As EPA

commented in connection with a similar amendment (1013, below)

"if read literally, no pesticide would be registered, because all present some risk." This completely excludes the effect of weighing

benefits against risks, and defeats the purpose of the Committee on Commerce to "require that EPA make a full weighing of com- peting interests in making its determination." 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, taking costs and benefits into account.

(3) The bill as passed by the House contains two defined terms

which complement each other, to wit, "protect health and environment" and "substantial adverse effects on the environment." The

former is defined as protection against the latter. In addition, it

is somewhat redundant 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 the environment." The Committee on Agri- culture and Forestry did not recommend changing the House bill

in this regard because, while redundant, both definitions were consistent. The amendment of the 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- tect health 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 on environmental 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 new definition, the same amendment would

change the criteria for registration and classification. At present the Administrator is directed to register a pesticide if

it will perform its impact without "substantial adverse effects on the 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) to essentiality.

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 in sec- 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)

of H.R. 10729 seeks to achieve.

We note it might be desirable to strike section 2(bb) of the

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" on the

environment" the linchpin of classification as well as regis-

,tration. (Obviously the term means something different in sec- tion 3(d) (1) (C) Trom what it 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 is apparent but acceptable because of countermaking benefits, the use based on the adverse impact will be restricted to

minimize those risks).

Turning to that part of the amendment which would strike

the reference to nonessentiality as u criterion for registration, we believe the present language of section 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 a product which is being examined, the definition of "substantial adverse effects" in section 2(bb) would

itself mandate consideration of the alternative.

The report of the Committee on Commerce at page 10, stated:

Under the definition of "unreasonable adverse effects on

the environment" adopted by the Committee on Commerce,

the bill on its face would require that EPA make 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 use of

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 the environment" to mean any "unreasonable" risk, and by making

the corresponding necessary change in the definition 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 the economic, social, and environmental costs and benefits of the use of any pesticide.

(x) Protect Health and the Environment.-The term 'pro- tect health and the environment' and 'protection of health

and the environment' means protection against substantial

adverse effects on the environment.

This would avoid the necessity of making numerous changes through- out the bill, which might result in errors in other provisions.

The language suggested above does not include the phrase "including the availability of alternative means of pest 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 it falls, prevent floods, provide clear water. He must consider aesthetic values, the beauty and inspiration of nature, the

comfort and health of man. 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 of essentiality a criterion

for denying registration of a pesticide," the report of the Committee

on Commerce states at page 11,

The "doctrine of essentiality" has many meanings to many

people. To some, it would forbid the registration of any 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 of the availability of less hazardous substitutes as

one of the interests to be balanced in determining whether a

consideration (sic) should be registered. If the first of these

readings were accepted universally, the committee would be

trilling. to wipe out the doctrine and to accept the Agriculture

Committee's language which would appear to do just that.

If "pesticide A" and "pesticide B" are equally safe a'nd cffective it would be unfair to register one in preference to the

other and absurd to reject both on the grounds that neither is

"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 relevant consideration in the evaluation of an application for the registration of "B". (italics added)

The sentence proposed to be stricken by the Commerce Committee did

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 those who accept the "first reading" that some change in registration criteria would result, the Committee on Agriculture and Forestry did not 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

are by no means incompatible, and there would appear to be 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 by the Commerce Committee: "Where two pesticides meet the

requirements of this paragraph, one should not be registered in preference to the other." This would be completely in accord with the policy

of EPA and both 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 discourage research into new and

safer pesticides, by making the fruits of such research immediately

available to 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 the consent of the applicant in sup port of 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 basis of that data, but it does assure each appllicant of exclusive rights in the test data which are the fruits of his

labor. It should be noted that this provision prohibits consideration

of such data by the Administrator "in support" of another application.

There is nothing to prevent use of such data in evaluating other test

data or denying another application.

The purpose of the provision proposed to be deleted is to give manufacturers an incentive to undertake the research necessary to develop

better and safer pesticides. The costs of testing a product to 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 is not 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 recover his research costs and little incentive for undertaking that research. The provision proposed to be stricken by the

Commerce Committee amendment is designed to provide the necessary

incentive for the production of safer and better pesticides to protect

health and the environment.

The Commerce Committee says at page 12 of its report:

The prime reason stated for this provision in the Agricul- ture Committee bill is that without it the pesticides industry

will lack incentives to develop new pesticides. Yet, by requiring 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 be little reason for duplicate testing if a second registrant

could share in the test data of the first by paying part of the cost. And

there would be little reason for the first registrant not recouping a part of his cost in 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 to this amendment of the 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 of H.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 in research to meet 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 of a new policy in H.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 additional new

policy as follows:

* * * within 30 days after the Administrator registers

a pesticide under this Act he 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.

The proponents of this new policy of publication of information 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 the purpose of assuring the validity

of data submitted by making it public without adversely

altering the competitive situation in the industry and to assure

continuing research and development, Section 3(c) (2) (d)

was finally set forth as follows:

(D) If requested by the 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 application shall not, without permission of the
applicant, be considered by the Administrator in support

of any other application for registration.

(It is the italicized portion which has been denominated as

the exclusive use of data provision.)

The intent and effect of the exclusive use of data provision is

succinctly stated in the report of the Committee on Agricul- ture of the House of Representatives which explains the

provision in these terms:

Research data originated and submitted by an appli- cant for registration are not to be considered by the Administrator without permission of the applicant, in support of any other application for registration. (Report

No. 92-511, 92d Cong., 1st sess., page 20.)

What these related provisions would do and would not do

may be stated concisely:

1. They would make available for public inspection data

submitted by an applicant for registration (except data which

the Administrator considers to constitute a trade secret.)

2. They would not preclude any other person from registering the same pesticide. 3. They would, however, preclude the Administrator from

considering in support of a second application for registra- tion of a pesticide the research data originated and submitted

by the original applicant, without the permission of the original applicant.

4. They would not preclude the Administrator from con- sidering such research data in support of a decision to refuse

another application.

5. They would not preclude the Administrator from con- sidering any other data which he considered in registering the

first pesticide-they would only preclude, without the first

applicant's permission, consideration of the research data

originated and submitted by the first applicant.

BASIS OF OPPOSMION

Opposition to this exclusive use of data provision developed when H.R. 10729 was pending in the House of Representa- tives. Reasons for this opposition as reflected both in informal

conversations with the opponents and as reflected in discussion of this provision when H.R. 10729 was debated on the

floor of the rouse of Representatives may be summarized as follows:

1. The provision subverts our patent laws by extending indefinitely the rights of exclusive production of a pesticide ma- terial. (Congressional Record, Vol. 117, No. 169, November 9,

1971, page H-10767.)

2. The provision makes it impossible for the Administrator 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 to join with manufacturers in "restrictive trade and in

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 of these provisions of H.R. 10729 will demonstrate

that these objections cannot be sustained.

I. The exclusive use of data provisions do not extend patent

protection either directly or indirectly

Even the most cursory analysis of these provisions will

demonstrate that they would not extend either directly or indirectly the protection received by a registrant under a patent.

During the life of a 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. 10729 that would prevent any other

person from registering the pesticide granted sufficient supporting data. No other person would, of course, have any rea- son to do so since after registration the pesticide could not

be marketed due to patent protection. After the patent expires, a different situation would exist either under present law or under H.R. 10729. Any other person would have the right not

only to register but to market the product. Any other person

wishing to do so would be in exactly the same position as was the original registrant-patent holder.

Possibly the effect of this provision in actual operation can be illustrated succinctly by analyzing a hypothetical example.

For our hypothetical example let us assume the following:

1. Pesticide X was patented following a demonstration of its

patentability as a contribution to the prior art. (A demonstration of the type of data which is required to establish the

patentability of a new pesticide is attached as Appendix 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 of an excerpt of pages 4-7 from The Regulation of Pesticides in the United States which was published by the U.S. Department of Agriculture and the U.S.

Department of Health, Education, and Welfare in March,

1968. A summary of the general categories of data required

for registration is attached as Appendix A-3.) A survey con- ducted by the National Agricultural Chemicals Association

shows that the average cost of discovery, and meeting the regulatory 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 the United States will ex- pire in aproximately 4 years. It previously has expired in
other 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 portions of the world

other than in the 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 could promptly register and market Pesticide X in the United States following the expiration of the

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 impose no 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 of Pesticide 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 of the United States has not been able to rely upon re- search work that has been conducted by the original regis- trant-patent holder because these data have not been available to him.

Likewise, there is nothing to prevent the foreign firm from submitting its application for registration and thereby having its research data available to suport its application immediately upon the expiration of the 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

establishing tolerances.

Likewise, there would be no reason under H.R. 10729 why the foreign firm would not be able to 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 of monopoly or restrictive practices attributed to such negotiations. If the original registrant demanded 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 the above analysis of this concrete 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 though the data are already available from a responsible

laboratory outside of Japan. Thus, a firm foreign to Japan

must either pay another firm for use of 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 data provision will make economically feasible research nchick ill be required to keep

on the market, or to bring on the market, many useful

pesticides.

Initial registration of a pesticide does not assure continuing

registration or the 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 and testing techniques, continues to meet the 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 of these 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

of a product. Frequently it applies to 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 the market over the 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 t a 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 of these 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 to recover the development costs. In this study he 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 of the cost of developing, producing, marketing and

recovering investments for two typical pesticides are set forth

in appendix A to his study. His hypotheses are stated at page

2 in paragraph 4. In example No. 1 he assumes that research

started in 1963. He estimates that the costs of developing 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 of the 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

this magnitude if such research is to become readily 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 of practice 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 only by obtaining a patent can the com- pany protect its research investment. If the company determines that it cannot obtain a valid and enforceable patent,

research and development of the pesticide is abandoned. The
result for the users and distributors of pesticides is that a po- tentially important pesticide is never developed.

The new policy of H.R. 10729 requiring publication substantially aggravates the situation by providing competitors with the basis for further analysis and development of similar 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 be to remove or keep from the market pesticides which could make a substantial

contribution to the production of our national requirements

for food and fiber.

III. The exclusive se of data provision is administratively

feasible and is compatible with the other regulator

requirements of H.R. 10729

From the foregoing discussion we believe it to be clear that

the remaining reasons which have been advanced in opposition to this provision are without merit.

In the 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 not require or permit this conclusion.

The only thing which it precludes the Administrator from

doing, is considering research data originated by one applicant in support of the registration of the product of another

applicant. It does not preclude the Administrator from rely- ing upon such data to deny the application of another applicant. The provision has no relationship to the burden of proof. 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 of the Government (with

certain exceptions) be made available for public inspection.

The provisions of section 3(c) of H.R. 10729 requires 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 be made 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 than to make the data public property after it has been opened for public inspection.

IV. Additional research which would result from the exclusive use of data provision would be beneficial

Opponents have suggested that this provision would re- quire a needless duplication of research. We do not believe this

to be the case. The type of research to establish the safety 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- ducted under these conditions can be quite beneficial.
Experience has shown that impurities resulting from production processes may have substantial toxicological effects.

Research conducted with a compound produced by one company may not be valid for the same compound produced by

another company. To the extent that this provision would result 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 exclusive use of data provision has been practiced for

many years under the Federal Food, Drug and Cosmetic

Act

The concept of the exclusive use of data provision is not

novel. The new drug provision of the Federal Food, Drug and

Cosmetic Act requires that the marketer of any new drug establish its safety. The type of research through which this

is established is comparable to that under the Federal Insecticide, Fungicide and Rodenticide Act. Title 21, Code of Federal Regulations, section 130.4(b) provides with reference

to supporting data submitted to establish the safety of a new drug, as follows:

(b) Pertinent information may be incorporated in, and

will be considered as part of an application on the basis

of specific reference to such information, including information submitted under the provisions of § 130.3, in

the files of the Food and Drug Administration; however,

any reference to information furnished by a person other

than the applicant may not be considered unless use of

such information is authorized in a written statement

signed by the person who submitted it.

CONCLUSION

The foregoing discussion, we believe, demonstrates that the

bases of opposition of the opponents of the exclusive use of

data provision are without merit:

In no respect does the provision subvert our patent laws by extending indefinitely the right of exclusive protection of a pesticide material. The provision does not prevent any com- pany from producing and marketing a pesticide after its

patent has expired. It merely requires that the new marketer

establish the safety and efficacy of the product which he now proposes to produce and market.

The exclusive use of data provision does not preclude the

Administrator from considering data originated by one appli- cant to conclude that adverse effects might be expected to arise

from the pesticide of the second applicant. It merely pre- cludes the Administrator from using such data in support of the application to register another pesticide. The provision in no way violates the Freedom of Information Act. The research data is made available for public inspection and appraisal.
21

The provision would not 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

This amendment would delete 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 data submitted to determine the

adequacy of an applicant's test data.

We agree that the 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 if there is no prohibition against his using it. Thus, deletion is sufficient and the grant of affirmative au- thority is unnecessary. In making the recommendation, it is our understanding that

where testing is specifically required by the Administrator a subsequent applicant is not relieved of his burden to test simply because another had previously conducted the same or similar tests. However, we feel the Administrator should be able

to refer to any previously submitted test data when considering the test data of a subsequent applicant.

(EPA's testimony, referred to above, appears at page 95

of the Committee's hearings as follows:

("2. A second undesirable feature is the provision that test

data submitted in support of a pesticide registration appli- cation cannot be considered by the administrator without per- mission of the originator of the data if such data tends to support another registration application. ("The effect of this provision is to afford additional eco- nomic protection, foster monopoly, and it may tend to restrict

pesticide business to large manufacturers. In addition, it

would increase not only Federal administrative cost but those

of the manufacturer as well, aside from unnecessarily increasing the application processing time.")

COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRY ON AMENDMENT NO. 3 OF THE COMMITTEE ON COMMERCE (ADVISORY COMMITTEES)

In brief, this amendment is ambiguous, so that its effect cannot be

known. It would appear to substitute an ambiguous conflict of interest

rule for one which the Committee on Covinerce and the Coarnittee on Agriculture and Forestry agree constitute an "admirable policy".

This amendment (which appears at the bottom of page 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 the pesticide which is the subject of referral.

The reason for this amendment 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

chemical industry could meet the requirements of the Commerce Com

mittee amendment. If the amendment is no more restrictive than that, it merely creates an illusion of avoiding 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 * * *"

This explanation is at variance with the language of the amendment, compounding the difficulty of trying to find out what the Commerce

Committee is trying to recommend. To take another example, if a com- mittee with 27 members included 9 scientists, then under the language of the amendment not more than 3 of such 9 could have an interest in

the chemical industry. Under the report language all of such 9 could

be so interested.

To still further compound the problem the Commerce Committee

cites a still different rule with approval as follows:

"Current EPA policy prohibits representation on advisory committees of scientists with a conflict of interest in the pesticide 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 that this 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 it is 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 increase the maimum iel penalty for a householder or other person not in the pesticide business above that for manufacturers, comnierrial applicators, and others in the pesticide

business.

This amendment (which appears at page 116, line 2) would raise

the allowable civil penalty from $1,000 to $10,000 for a violation of the

act by a private certified applicator or other person not covered by section 14(a) (1). This would permit imposition of nearly the highest penalty for the least serious offense.
23

The amendment of the Committee on Agriculture and Forestry

provided for an orderly progression of penalties based on the serious- ness of the offense. Thus, starting with the ordinary householder,

private applicator, farmer, or other person not in the pesticide business

committing an offense not deemed suitable for criminal 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. A registrant, for example, should have greater knowledge of the dangers of pesticides and greater

familiarity with the 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 for up to 1 year.

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 an entire forest by airplane. The Committee on Agriculture and Forestry recommends rejection of this

amendment.

The report of the Committee on Commerce describes this amendment on page 19 of its report as follows:

"(4) Penalties

The amendment raises from $1,000 to $10,000 the civil

penalty for violations of the Act by private 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 to be subject to penalties not to exceed $25,000

while private applicators are to be subject 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 that the 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 by no means the case. It is applicable as vell (page 1,15,

line 21) to any "other person not included in paragraph '(1)", (i.e, any- one not in the pesticide business). Private certified applicators would

constitute only a very small percentage of the 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 for commercial applicators with the civil penalties for private applicators, and that the civil penalty for a commercial

applicator is $25,000. That is by no 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 to the number of (1) small farmers, gardeners, householders, and others who apply their own pesticides who would be made

subject to a maximum civil penalty of $10,000, and (2) "huge corporate" manufacturers, distributors, merchandisers, and others who

would continue to be subject to a maximum civil penalty of only $5,000.

The fourth sentence of the statement quoted above is also incorrect in

stating that "huge corporate farmers could be certified as private 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 principal effect of this amendment is to strike out the

require nent that foreign governments be notified when a pesticide is

banned in the United States (page 123, lines 19 through 25).

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 7 through 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 the environment of the United States (page

123, lines 11 through 18) ;

(4) require the Administrator to notify the government of the

foreign nations to which any pesticide may be exported of the

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 19 through

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 is no good reason for sending them to foreign

governments as would be required by the Commerce Committee amendment, until it is known whether they will actually result in cancellation.

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 of the export of a pesticide resulting in unreasonable

adverse effects on the environment of the United States is highly

speculative. It is usually the use, rather than the export, that may result

in adverse effects. Use abroad should not have adverse effects here,

but in any event the amendment makes no attempt to prevent such use.

Pesticides can be manufactured in any country of the world as easily

as they can be manufactured here. A multinational company which is

prohibited from exporting a pesticide to a country which desires to use

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 in our balance-of -payments problems.

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 amendment would require the Administrator to determine these questions and

send hundreds of pieces of paper to each of these governments, many

of them (like routine cancellation notices) of no significance. The

cost of these mailings, the cost of their translation into the languages 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 t ty 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 world
26

amount of paper involved may not represent a significant social or

economic cost, but it is waste and should not be 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 of this amendment. Portions of that report which might at first

create an impression of pertinency are as follows:

First, that report says at page 19,

The amendment of the Committee on Commerce would

prohibit exportation if the use in a foreign country presents

unreasonable risks to the environment (including man) of the

United States. To enable EPA to make these determinations, test data would be supplied and pesticides would be subject

to the 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 of the application and leave this part of the

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, no test 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 for ex- port. For example, in hearings before the Subcommittee on

the Environment, Senator Gaylord Nelson described how

mercury pesticides manufactured in this country were responsible 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 of the unfortunate occurrence in Iraq is in any way relevant to the 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) of the

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 to their use of a pesticide, the amendment requires

that an adequate amount of data be made available to them."
This statement appears to be based on a misunderstanding of the bill.

To the extent that the Commerce Committee amendment is effective

in this area at all, it would appear that its effects might be to provide foreign governments with misleading information. The following ex- amples should illustrate how 'it would work.

Example 1. A U.S. manufacturer exports pesticide x for sale by it

abroad. This pesticide has been registered under the law. It has been

found by the Administrator to be effective and safe for the protection of man and the environment. It is labeled with appropriate directions,

cautions, and warnings. Since the foreign purchaser is not yet known, the pesticide has neither been prepared nor packed according to the

specifications of such purchaser. Under the bill as passed by the House

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 of the information and protection that would be given to a purchaser in the

United States. The label is affixed to the pesticide container and is 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 of the 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. A foreign 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

pesticide be diluted by double the quantity of inert ingredients 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 in the

language of the country to which exportation is being made and com- plies in every way with the laws of that country. Because the pesticide 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 registration of 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 is not "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, is not in any way related to the product imported from the United

States. The U.S. label may not meet the requirements of law of the

foreign country, whereas the label on the imported product does com- ply with those requirements. The directions, cautions, and warnings will be different on the 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--5
could 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 to the 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 laws of his coun- try require such variations or because it is to be 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 been unable 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 does not suggest such an example.

The Commerce Committee report says at page 20,

It is intended that all notices of intent to cancel will be furnished to foreign governments as well as all final orders of can- cellation. (italics added)

The italicized part of the statement just quoted is the 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 does not provide that any final orders of cancellation will

be furnished to foreign qore rnients.

The Committee on Agriculture and Forestry rejected a similar

amendment for the above reasons and on the basis of the following

recommendation of the 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 to have such a statement. Therefore, much of the amendment language is either unnecessary or unintentionally far too broad.
In addition, the amendment is written so that 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 of the provision 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 of their 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 in classification is dubious; they would not have the particular usecontrol program of the bill, and would, on the other hand,

have the expertise sufficient to judge the environmental 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 is questionable.

The following letter from the Environmental Protection Agency

makes it clear that-

(1) Under the Commerce Committee amendment foreign governments would receive at least 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 of those that did.

(2) No one is interested in receiving the information that the

Commerce Committee amendment would require to be 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 of useless data.

(5) None of the data would be translated into the language of

the country to which it was sent.

(6) None of the export labels which appear in the language 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 in the 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 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 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 of the July 25 letter is as follows: "(2) We would

and do make available to any foreign governments all of the information they might specifically request except for trade secrets."

U.S. ENVIRONMENTAL PROTEcrTION AGENoC,

Washington, D.C., August 1, 1972. Hon. JAMES B. ALLEN,

U.S. Senate,

Washington, D.C.

DEAR SENATOR ALLEN: This is to supplement our letter of July 25

responding to your several requests for information.

1. There are approximately 30,000 registered products. By law we

are required to cancel 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 is rare 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 proposed export amendment requires us to furnish to foreign governments.

To reiterate our July 25 ' letter, the only requests received, thus far, are

for information concerning major actions on generic chemicals.

3. There would be no reason to receive specific label data about registered foreign pesticides. If it is shipped to this country for domestic use, the material must be registered pursuant to all requirements applicable to domestically used and produced pesticides. Data and labels

received by a foreign government would not necessarily cover the precise formulation for the pests against which the product will be used in

this country.

4. Under the proposed export amendment we would have to furnish

data to all countries which receive pesticides exports.

Literal compliance with the amendment would require microfilming

all labels for registered products (color reproductions) and the shipment of thousands of pages of registration 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. to translate any of the registration

material into other language unless the law requires it.

7. Again, we do not consider it appropriate to any part of any export

label unless we are required by law to do so.

See footnotes, pp. 31-33.
31

8. To summarize our knowledge of the Iraqi incident as described 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 accordance with normal procedures, to warn users that it was highly toxic

and not to be eaten.

For some reason, a considerable amount of seed shipment, not necessarily from the Western hemisphere, was not planted, probably because it arrived too late in the season. Apparently Iraqi citizens used

the seed in their breakmaking, and marketed the meat of livestock 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 see no way in which the proposed amendment by itself would

have averted the Iraqi incident. We have been assured that the Iraqi

Government was advised that such treated seed had been banned in this

country because of the hazard but insisted that they wanted such treatment anyway.

Sincerely yours, CHARiEs FABRIKANT,

Special Assistant for

Regulator-y Affairs.

' 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 the correct information and would not be misleading Jots" 24, 1972.

'Hon. WrsttA3 D 11t curLs Sa. "Administrator, Environnctal Protection Agency, "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.AMES B. ALLEN."

"JULY 20, 1972.

"Hon WILLIAs D. RUCKELSHAUO, ".dmiatnisrtor. Earirone'n ttl Protecti"e agency,

"Room 3104, Waterside Mall, 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 type of information which would be required to be sent them without request under the "(2) Commerce Without Committee amendment? 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 should feel any need for this type of information ? "(3) In your administration of the Federal Insecticide, Fungicide, and Rodenticlde Act, have you 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 for registration 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 the number of countries to which each new label, each new order of suspension, and each notice of cancellation or change in classification would be required to be sent, the coot of each such mailing, and all other costs involved in administering this provision, exclusive of those required to be borne by pesticide manufacturers, exporters, and other citizens. If you have any views as to the costs to be borne by such other persons, I would appreciate that information. "(5) In administering this provision, would it be your intention to translate all domestic labels into the language of each country to which they are required to be sent? If so, please include a cost estimate for that function. "(6) In the case of pesticides intended solely for export and prepared or packed accord. ing to 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 be amended 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 "0 to the amount of the additional registration fee that would be required as a result of the provi- sions of Commerce Committee amendment relating to exports. (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 whether the proposed amendment would be likely to prevent any such occurrence or other- wise serve any useful purpose. "With every good wish, I am "Sincerely,

"JASOES H. ALLEN,

"Chairman, Subeommittee on Agefealfarol "Research and General Legislation."

"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 the questions you poled in your letters to the best of oor ability. Because we 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 regarded of the at best proposed as very amendment, rough are not available. Most of oar figures should only be estimates. "To take your July 24 request 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. Included were 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 in most roses. "Unfortunotely we do not have an exact figure 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

"(1). 'To respondto The only the requests specific from questions foreign ...governments c.. ng an international that we know program shoot are Is Or'n ganizaton of Economic Cooperative Development (OECD) has k ke o abo arec iar hoots) to advise .... member nations through OECD re ra of m ui ton a recga.... ... - ecr t i n of a r ac Io s reg laadvisln~reat tion of pesticides s which as adratios soon s have we deride o significat on them rconomir The Deportment impact on of forelga Agriculture nations; has been (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 "(21 We requests would for and summoeles do m ae available of registration to a and foreign tolerance governments actions.all of the informs

tion,(theywmight speclficoily request except for trade secret " 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 are doing as 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 nakitng available 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, active ingredients, types of formulations, crops involved, and resioue tolerances, whtien they are requIred. "We are unable hiwrser, to provide you with precise data on the Cost of 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 of pages, Thus, the costs of administering a detailed information exchange pro- gram would be quite 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 label unless we are required to do 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 supported by 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 seen was dyed bright red, in accordance with normal procedures, to warn users that it was highly toxic and not to be eaten. For some reason, a considerable amount of seed shipment, not necessarily from the Western hemisphere, was not planted, probably because it arrived too late in the season. Nontheless, the seed somehow entered the channels of commerce. Despite the red dye, skull and 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 of infected livestock. "No precise account of the damage is available, 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 but Insisted 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 highly dangerous pesticides by ull nations we see no way to avoid Iraqi-type tragedies. "We do not believe it is necessary 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 the extent of export activity would be more appropriate. "Sincerely yours, ' t5AVID D. D~OINstncK."

3 It 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 there were 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)

The principal effect of this amendment is to deny the Administrator

information essential to his decision as to whether a pesticide is safe

and effieacious.

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

which the claims [for a pesticide] are based," and restricted him to

"any tests offered" in support of the application (page 78, line 25,

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 the public "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 3 through 9) ;

(3) change the language of the trade secrets provision, increasing the possibility that such secrets may be made public with

consequent loss to the owner (page 104, line 15, through page 106,

line 18, and page 107, lines 1 through 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 19 through 26).

This amendment would interfere with proper administration of the

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 to judicial review,

on the basis of the information available to him. For the protection

of the public and as a simple matter of reasonable 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

not burden him with a mass of information for which he has no need.

The Commerce Committee report at page 20 describes the portion

of its amendment discussed above as follows.
The amendment modifies section 3 of the Agricultural Committee bill by requiring, first of all, that each applicant will submit a full description of any test offered in support of an application and the results thereof. As specified in paragraph 2 of subsection

(c), the Administrator will publish guidelines specifying the

kinds of information which will be required to support the regis- tration. What the amendment will do is require that this test data,

whether favorable or unfavorable to the 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 if requested by any person. (italics added)

The last sentence just quoted (disregarding the last 19 words, which

appear garbled probably through typographical error) is a complete distortion of fact. There is nothing in the Agriculture bill which would

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 the Commerce 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 if he finds he needs additional information. Paragraph (2) is based on the right of the Administrator to 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 held back because the Administrator would not be given the power to obtain all data.

As pointed out above, this amendment appears to be 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 20 pests on 17 kinds of trees. Research has been conducted over a period of many years by government agencies, universities, and

others. The registrant has conducted many tests and all tests show
that Pesticide X is one of the safest pesticides registered and has no 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 pest or tree and applies for registration to cover the new use as well as the existing use. The Administrator has all data on the previous tests. He is interested only in determining 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 of reproduction. 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 this report of Commerce Committee Amendment No. 12.

Another way in which the amendment would hamper effective ad- ministration would be to subject each communication between the 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 that committee provides for adminis- trative and judicial review at the initiative of any person adversely affected bv the Administrator's decisions as to whether or not to regis- ter. cancel or suspend registration, change the use classification, or impose additional restrictions on the use of a pesticide. It also provides that all data called for in the registration statement and all other scientific information relevant to the Administrator's decision to register a pesticide must be made available to the public within 30 days after reg- istration. This provides adequate public surveillance of the Adminis- trator's action, but gives the Administrator an opportunity to carry out

his responsibilities in a reasonable way without constant harassment from people who desire a copy of each telephone call or letter from the

Administrator to any manufacturer or from any manufacturer to the 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 of citizens thought to be more or less honest than another

group ?

With respect to disclosure of trade secrets, the amendment of the

Committee on Agriculture and Forestry would permit such disclosure "when necessary to carry out the provisions of" the Act (page 104, lines
19 and 20). The amendment of the Committee on Commerce would

greatly broaden the grounds for disclosure of trade 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 10 through 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 for disclosure.

The amendment of the Committee on Commerce would require every

communication from any person to any employee of the Environmental Protection Agency concerning a matter "presently under consideration" in a rulemaking or adjudicative proceeding to be made a 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,

in connection with the consideration of the pending 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 of the request. If "presently under con- sideration" is construed 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,

and Rodenticide Act," this part of the amendment would probably be a nullity.

It should be noted that portions of the 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 and rejected by

the Committee on Agriculture and Forestry) are as follows:

2. AMENDMENT NO. 1003

The amendment would make submission to the Administrator of safety and effectiveness test data by every registration

applicant mandatory; permit public access to non-trade secret

data in support of a registration application once it has been

submitted to the Administrator (and before he has made his

determination) and could be interpreted to leave the determination of what constitutes a trade-secret with the applicant rather than with the judgment of the Administrator. The

amendment also specifies those persons to whom a trade secret

may be revealed.

As drafted, this amendment would also require the holder

of a registration to submit his entire file with a new applica- tion, even if his only point were to seek approval to use a registered product on a related crop or pest.
38

Requiring the submission of test data with every registra- tion application is unnecessary since this agency in many cases already has sufficient information to make a judgment con- sistent with the purposes of the act. We therefore do not rec- ommend enactment of this provision, and endorse retention of

the present concept in section 3 (c) (1) (D).

We also do not concur with the amendment which would

provide public access to registration application information

before a registration decision by the Administrator. Since access could lead to interminable delay of the entire registra- tion process. We are promulgating new rules which establish procedures under which an interested person can seek review of a registra- tion if new evidence bears on it or 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 to regis- tration decisions.

We believe the language in section 10 of H.R. 10729 with regard to the protection of trade secrets and other informa- tion is preferable to that proposed by amendment No. 1003. The provisions of H.R. 10729 provide that in submitting data required by the act, the applicant may mark any portions of it which he believes are trade secrets or confidential commer- cial or financial information. It is treated as such if the Ad- ministrator in his judgment concurs with the opinion of the

applicant. The last part of amendment No. 1003 states the terms and conditions under which trade secrets may be disclosed. While

data which is determined to be a trade secret may not be re- vealed on request, this amendment establishes six instances where trade secret information may be opened to public scrutiny. As drafted, we feel the amendment is too broad. We suggest the following language in lieu of the pertinent pro- vision of the proposed 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 of the title 18 of the 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 camera in any judicial proceedings if ordered

by a court; "(4) in camera if relevant in any proceeding under

this Act to carry out the purposes of this 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 through 122) provides

for citizens' suits in certain cases for injunctive relief, attorney and

expert witness fees, and other costs of litigation. Suich costs could be

awarded to any party whenever the court deemed appropriate without

regard to whether ,tch party prevailed in the suit. Misuse of registered

pesticides would not be enjoinable, although the Commerce Committee

report would indicate that it teas intended to be enjoinable.

This amendment may encourage suits by professional litigants and

interfere with the orderly administration of the law. The Constitution

provides that the executive power should be vested in the President.

The courts are already overburdened with judicial 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 of the 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 through threats of such suits.

The Committee on Agriculture and Forestry believes that only very

bad administration will result if every communication between the Administrator and a manufacturer must be immediately made public and

if every citizen can harass the Administrator with suits for injunctions. The Agriculture Committee bill already permits any citizen to initiate cancellation proceedings, obtain judicial review of every action or inaction lie disagrees with, and intervene in every 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 its complexity and

the problems involved, the bill would be made effective 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 by the 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 act or duty under the act.

While there was no provision for citizen suits in the 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 of Amendment 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 the Federal Insecticide,

Fungicide, and Rodenticide Act, and for other purposes, viz.:

On page 50, between lines 15 and 16, insert a new section as follows:

"SEc. 17. CITIZENS CvIL ACTIONS.

"(a) Except as provided 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 any producer or applicator of a pesticide (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 be in violation of any regulation, order, condition of registration, or other requirement

under this Act 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 action under paragraph (a) (1) of this subsection

shall be brought in the district court for the district court for the district in which the alleged violation occurred

any action brought under paragraph (a) (2) of this subsection shall be brought in the district court of the

District of Columbia.

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties,

over suits brought under this section.

"(b) No civil action may be commenced-

"(1) under subsection (a) (1)-
41

"(A) prior to sixty days after the plaintiff has

given notice of the violation (i) to the Administrator

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 of the United States to require 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 the Administrator shall prescribe by regulation. "(c) In any action under this section, to which the United

States is [the Administrator, if] not a party, the Attorney

General, at the request of the Ad'oinistrator, may intervene

on behalf of the United States as a matter of right.

"(d) The court, in issuing any final order in any action

brought pursuant to subsection (a) of this 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 order or to seek any other relief.

"(f) For purposes of this section, the term 'person' means

any individual, corporation, partnership, association, State,

municipality, or political subdivision of a State."

" (g) When any actions brought under this subsection involvring the same defendant and the same issues of violations

are pending in two or norc jurisdictions, such peuding proceedings, upon application of the defendant seasonably made

to the court of one such jurisdiction, shall be consolidated for

trial b order of such court, and tried in (1) any district selected Iby the defendant where one of such proceedings is

pending, or (2) a district agreed upon by stipulation between

the parties. If no order for consolidation is so made within a

reasonable time, the defendant may apply to the court of one

such jurisdiction, and such court (after gieig all parties

reasonable notice and opportunity to be heard) shall by order,

unless good cause to the contrary is shown, specify a district

of reasonable proximity to the applicant's principal place of

business, in which all such pending proceedings shall be consolidated for trial and tried. Such order of consolidation shall

not apply so as to require the removal of any case the date

for trial of which has been fixed. The court granting such order shall give prompt notification thereof to the other courts

having jurisdiction of the cases covered thereby."

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 Administrator unbarranted authority to deny a registrant the opportunity for a full hearing prior to cancellation of his registration.

There does not appear to be 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 following comments of EPA.

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 that any 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 of intervenors.

The deletion by Amendment No. 1006 of the provision authorizing the Administrator to determine sua sponte 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 the resolution of issues involviiig pesticides. One further aspect of this amendment is undesirable. As drafted it might compel a hearing on any flndivg 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

AMENCM I.NT No. 9 OF TIlE CO-MMITTEE ON COacrSIFRCE (INCLUSION O

FARMIWOwRERS IN TERM "lIAN")

At best, this amendment is meaningless surplusage making it clear

that farmers, farntcor'kers. and others coining into contact with pesticides and pesticides residues are included within the term "man". At

worst, it would (1) prohibit reliance on certain test data to deny registration of dangerous pesticides, and (2) weight registration decisions

in favoi of DDT as opposed to methyl parathion.

This amendment would specifically require pesticide labeling to 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) ; prohibit use of test data unless the tests

were legal and the 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 of the bill is to protect man and the

environment. There is no question but that farmers and others coming

in contact with pesticides or residues fall within the category man. The

Committee on Agriculture and Forestry, at page 14 of Report No.

92-838, took occasion to eniphasize that the bill 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 of witnesses recommended amendments to specifically require the labeling to bear directions and warnings

to protect 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 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 to protect 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 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 environmentt" to include all men, 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 and
classification of pesticides be such as to protect farmers, farmworkers, and others coming in contact with pesticides or pesticide residues.

The Committee on Commerce agrees with the Committee on Agriculture and Forestry that this amendment is surplusage when it says

in its report at page 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 might indeed not be 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 the Agriculture Committee amendment farmworkers will be protected. The fact that there was testimony they

might not be protected under existing law is no 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 of the family of man and the Commerce Committee report suggests at page 27 that this is the case when it says, "In adopting the proposed amendment, the committee intends to stress the health of farmworkers as a vital criterion in 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 of the Commerce Committee report as its authority for this

amendment tells us what this means at page 318 of the hearings before

the Committee on Agriculture as follows:

It is imperative that no pesticide be certified by the Environnntal Protection Agency unles" it is absolutely safe for

a-se by those who niust work with or around it. (Italics

added.)

In looking for an example to see what the effect of making the farmworker's health a vital criterion might 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 to build up in man. It is not known

whether it is injurious to man or not. The Administrator has canceled

the registration of DDT effective 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 of methyl parathion to farmers and farmworkers. If the health of farmworkers is now to be made a vital criterion,

that w ould appear to weight the scale in favor of registration of DDT

in preference to registration of methyl parathion.
Further recognizing that this amendment is generally surplusage, the Commerce Committee report states at page 27:

The Committee amendment makes one substantive change. The amendment provides that EPA shall not rely on any test

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 test was the result of a free,

voluntary, and informed choice by each 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 of accidental involuntary tests, resulting from climatic conditions, spillage, other accident, improper calibration of equipment, and otherwise. Thus, studies

of hospital admissions for pesticide poisoning might contribute to the Administrator's knowledge of pesticide 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 of the pesticide. This amendment was proposed to the Committee on Agriculture and

Forestry, but no evidence was presented of any need therefor or to

indicate that any involuntary tests had ever been 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 for each blood test they took and also that they were instructed that they had to participate in all the tests to qualify for

the blood bonus money." These statements appear at pages 318 and 319

of this committee's hearing on H.R. 10729. The same witness, Mr. A. V.

Krebs, who is cited by the Commerce Committee report on page 27 as their authority on this amendment, inserted the following, at page 325,

to show what is meant by "free, voluntary, and informed choice":

2. Potential participants should be free from even the hint

of coercion, direct or implied, real or imagined. To the extent

that subjects in the studies to 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 of Mexican descent. But it be- 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 of all when this lay interpreter

stands in an employer-employee relationship with the potential participants.

It should be understood-although it is usually not understood-that the relationship of growers, contractors, foremen,

and supervisors to Spanish-speaking farmworkers is not like
that 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 of the patron are not to be

questioned. It is widely assumed among these workers that if

one displeases the crew leader in even 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 the boss is in favor of * * *," some of the members

of the crew are going to assume that it is something they had

better do if they wish to continue 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 of these officials stated at page 346,

"we voluntarily canceled our registrations of all ethion wetable powder products in California following our study because of the drop in

pseudocholinesterase activity following their use." It would have been

unfortunate if he had not been able to rely on these tests.

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 because the tests were conducted on Sunday or were otherwise conducted

in violation of local law.

COIIENTS OF TIE COMMITTEE ON AGRICULTURE AND FORESTRY ON AMENDMTENT NO, 10 OF THE CO)IflITrEE ON COM_1_MERCE (AUTHORITY OF LOCAL

GOVERN MENTS TO REGULATE TIE USE OF PESTICIDES)

In brief, this amaendnent (page 129, lines 14, 15, 16, and 18) would

give local qor oern/s the authority to regulate the sale or u.se of a

pestn-ide. It. purpose is to vitiate the language contained in the report
of the Committee on Agriculture and Forestry, Report No. 92-838, at

page 16 as 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 of the 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 with that provided by the State and Federal Governments.

On this basis and on the basis that permitting such regulation

would be an extreme burden on interstate commerce, it is the

intent that section 24, by not providing any authority topolitical subdivisions and other local authorities of or in 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) provide for judicial review in appellate

courts even where there had been no prior administrative hearing,

and (2) preclude the registrant from presenting auy evidence in his

own behalf in certain eases.

This amendment would-

(1) deprive a registrant of the right to an administrative

hearing before suspension of registration 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 3 through 7, and page

92, lines 17 through 21) ;

(3) provide in all cases for judicial review by an appellate

court, even though there has been no prior hearing to determine the 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 been no 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, the Administrator 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 as follows at page 28:

"The amendment gives EPA the authority, if necessary to

prevent an imminent hazard, to suspend without a hearing

or after an expedited hearing if more information needs to be

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 of a given

pesticide registration is reduced from three to two."

This statement is not correct and is apparently based on misunderstanding by the Commerce Committee of its 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 either the Agriculture Committee bill or the Commerce Committee amendment the Administrator could proceed to a hearing to determine whether suspension was appropriate. If, as a result of that hearing, the Administrator decided to suspend registration then under

either the Agriculture Committee bill or the Commerce Committee

amendment the registrant could obtain judicial 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 the Commerce 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 Agriculture bill provides in the case of judicial review of a suspension order

entered without a hearing as follows: "The effect of any order of

the court will be only to stay the effectiveness of the suspension order,

pending hearingbefore the Administrator." This provision would be

stricken by the ommerce Committee amendment so that innumerable

reviews are possible under the Commerce Committee amendment but not under 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. The
Agriculture 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 subject required

the full deliberation of the full committee. It therefore passed this

question, along with three other amendments, to the full 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

described the situation as follows at page 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 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 intiated 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

of an agenc 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.

and at page 12:

"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 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 the benefit of more information before lie 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 hearing; 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

considered all of the numerous amendments submitted to

clarify the procedure for judicial review, third-party partici- pation in the administrative decision-making process, and the

grounds which permit the Administrator to cancel a registra- tion 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 pres- ent 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 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 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 the Administrator to initiate formal review without

placing a stigma on a product when he is not convinced that

the registration should be cancelled. It also permits the Administrator to proceed without automatically cancelling if no specific request for a hearing is received.

"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 has determined no substantial ques- tion of safety exists which warrants formal review, and thus

has refused to hold 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 on questions of suspension so that the procedure 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

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 court of appeals."

In short, the Committee on Agriculture and Forestry believes that

matters which have not been heard before should go to courts of 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 of this bill in jeopardy.

COMMNTS OF THE COMMITTEE ON AGRICULTTURE AND FORESTRY ON AMENDWENT NO. 12 OF THE COMMITTEE ON COMMERCE (AUTHORITY OF STATES

TO REGISTER PESTICIDES)

In effect, this amendment would deny States the right to register

pesticides (with EPA approval) to meet peculiar State needs. Hawaii,

Michigan, and Washington authorities hove d ised the Committee on

Agriculture and Forestry of the "serious economic problem" they will

be faced with if this amendment is adopted.

This amendment strikes out a provision (page 129, line 22 through

page 130, line 6) of the Agriculture Committee bill which would permit

a State to register pesticides formulated for distribution and use within

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

canceled by 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 of the act. In lieu of this 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 is no restriction on the use of pesticides. 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 is inconsistent with the labeling. The Committee on Agriculture and Forestry worked with the Environmental

Protection Agency over a period of some weeks to see if there was not

a better word than "inconsistent" but was unable to solve this problem. The original report of the 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 his environment and it expresses the hope that by proper administration of the labeling requirements

and administrative interpretations of the 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 industry
within 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 of Dr. Donald R. Isleib, scientific adviser to the 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 of American Pesticide Officials) :

EXECUTiVE CHAMBERS,

Hon. Honolulu, July 13,1972. HIRAM L. FONo,

U.S. Senate, New Senate Office Building, Washington, D.C. DEAR HIA AM: 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 been made.

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 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 canceled by the Administrator. Such

registration shall be deemed registration under section 3 for all purposes of this act, but shall authorize distribution and use only within such State and shall not be effective for more than 90 days if disapproved by the Administrator within that period." 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 are tempted 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 of illegal residues on crops could lead to legal action and losses where no such problem would result from application
53

of pesticides on major crops with similar characteristics. We recognize

unwarranted and unapproved uses of pesticides can have adverse

effects on the environment 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 for use in ethnic dishes. Loss of

these crops would necessitate resorting to costly alternatives of importing from the Orient or Polynesia similar crops with unknown or questionable history of pesticide usage.

Presently, very few pesticides are cleared for use on such minor

crops because manufacturers will not expend the large stuns of money

required to register a pesticide for a limited-scale specific crop use. Therefore, States should be given the authority to register pesticides

for use on minor vegetable and fruit 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 of pesticides based on data supplied by applicant and re- 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

yours always.

Sincerely, JOHN A. BURNS.

FEDERATED PECAN GROWERS' AssocITioNs OF THE UNITED STATES, Albany, Ga., January 18,1972.

Hon. HERMAN TALMADGE,

U.S. Senator,

Senate Office Building,

Washington, D.C.

DEAR SENATOR TALMADGE: In a recent meeting of plant pathologists

at the University of Georgia, the proposed pesticide bill, which is bill

H.R. 10729, was generally outlined. The effects of this law might be

disastrous for pecans, or any other small economic crop today.

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

for peaches, apples, citrus, and other major agricultural crops. Many of

the chemical companies will not take the time even to try to get their

product cleared for pecans, 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 this area. We would have to let them revert back to what they were 10 years ago, and this would be economically catastrophic. For example,

certain pesticides on the surface of an apple or peach could present
a much greater danger potential than on a pecan shuck, since the nut

is never in contact with the pesticide itself.

I would certainly appreciate hearing from you on this, and what

this industry might expect in the future. I realize this is controversial, and the ecologists are not very agribusiness minded. The whole farming

community is indebted to you for your understanding of agriculture, and itsplace in Georgia as well as the United States.

Sincerely yours,

HENRY M. GooDYEAR, Jr.,

Director.

Dr. Isleib (at p. 17 of the hearings of the 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 we have

collective resources in our various State departments, the

service of the State university, our health, natural resources, and water resources agencies which can adequately and well

identify and judge the unanticipated or unique needs for pest

control which occur in Michigan. We feel the authority as- sumed by the Federal Government in H.R. 10729 as proposed, is too 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 having had an opportunity to review the Senate committee staff mark up, to see that a provision has been

made to provide for the States for registrations of uses which are unique to their needs. My testimony includes a suggestion, to accomplish State registration but I am sure that 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 of unique situations which I think describe the point 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 lamprey with 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 a vigorous 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 of this pest to

neighboring States as far west as Illinois and as far east as

the Atlantic coast. The control program we used did not introduce 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 in the future.

Subsequent to the Commission's approval of that language,

I have had a chance to study the language in the Committee

print. If it means what I think it means, I prefer the language

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 of the swimmers' itch and the

lamprey eel. Let me give you some examples of why we believe

the Federal Government should not completely preempt the

registration and regulation of restricted use pesticides.

Two unique situations of special interest come to mind. Our

Great Lakes fishery is being 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 of Interior, 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 of this undertaking is now 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 solutions and decisions are best found in State technical

resources:
56

Cereal leaf beetle control on small grains. The cereal leaf l

beetle, Oulema melanopa, was found in Michigan in 1962. A

vigorous chemical control program under the authority of the

Michigan Department of Agriculture delayed the spread of

this pest while Michigan plant breeders embarked on an effort

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 pest beetle. However, termination of the chemical control program a few years ago was accompanied by rapid spread of this 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 and uses of existing, registered pesticides to a new and sinister problem pecu- liar to Michigan at the time. With the advantage of hindsight, we feel that our response was correct by all standards, and we feel that we should continue to use the 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 of root collar weevil on Christmas trees. There is no national need for our local registration, but in Michigan-the No. 1 Christmas 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 use to a new or unique problem. Other examples of pests in Michigan on farm or forests

crops per, climbing include the strawberry sap beetle, the strawberry clip- 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 have lost up to 50 percent of their crops, at a cost of $2 to $5 million annually, due to ravages of insects for which 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 by FDA and EPA, but can do so only if we are given the authority.

We wouldn't seek to perform registrations at variance philosophically, environmentally, or in terms of human health

with those imposed by EPA and in the case at point, and I

think it is typical 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 a very local problem- and we have a number of these local problems-is restrictive.

Some additional examples are included in my testimony.
Mr. Deck at page 285:

(4) Such local or minor uses as the control of mud shrimp

for development of oyster beds in Washington, the control

of an aquatic pest for swimmers in Michigan lakes, the control of honeybees infesting some buildings, the control of rattle 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 of pests 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 90 days. The amendment of the 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 the tremendous work load the bill will impose

on EPA over the next four years. Citizen interest in administration,

hearings, and judicial review can also be expected to slow up the registration process and increase the backlog.

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, lines 13 through 16) authorizes

the Admini.strator to require farmers, farmworkers and other private

applicator' to mninttin record. and file reports or other documents.

The Commerce Committee amendment strikes out section 11 (a) of the

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 is classified for restricted use for purposes

of producing any agricultural commodity on property owned

or rented by him or his employer or (if applied without compensation other than trading of personal services between producers of agricultural commodities) on the property of

another person.
58

In 1970 there were 2.9 million farms in the United States with an

average realized net income of only $5,374, and there were 1.8 million

farms with realized net of less than $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 or the making of such reports or the filing of such documents the requirement that they be kept and filed would be a burden

beyond the capacity of most of the farmers and not commensurate with

any slight benefit that might obtain.

COMMENTS OF THE COMMrrrEE ON AGRICULTURE AND FORESTRY ON AMENDMENT NO. 14 OF THE COMMIrEE ON COMMERCE (RIGHT OF ENTRY)

In brief, this amendment (page 100, line 25, and page 101, lines 2,3,

and 8) is unconstitutional, since it would authorize officers or employees of the Esvironmetal Protection Agency to enter private

dwellings and other places where pesticides or devices are held or

used, whereas the Agriculture Commnittee bill restricted such entry to

places where pesticides or devices are held for distribution or sale.

This amendment would further authorize such employees to inspect

and obtain samples of any pesticides or devices, whereas the Agriculture Coomnittee bill limited such inspection to pesticides or devices

packagedd, labeled, ad releas-ed for shipment."

Since pesticides are held or used in most homes, this amendment

would authorize Federal agents to enter almost any home in the coun- try without a warrant and without even a suspicion that there has been a violation of any law. The Committee on Agriculture and Forestry

opposes the existence of such authority even though it were never used.

Section 9(a) of the 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

is suspected. Section 9(b) provides additional authority for entry 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 entry into homes and other places.

With respect to the second part of this amendment, the Committee on Agriculture and Forestry felt that 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

the bill prohibits the distribution, sale, offer for 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 of the law. Thus, for example,

let us suppose that a registered pesticide consists of one part chemical x and two parts chemical y. The fact that chemical x is found in the

pure state in the plant or in some other combination with chemical y than that for the registered pesticide is of no interest in connection

with the administration of this law. But when it is packed and labeled

with the name of the registered pesticide, then the composition of the

mixture becomes one that is of interest under the law.
VIEWS OF SENATOR SAM J. ERVIN, JR., AMERICAN CIVIL LIERTIES

UNION, AND THE CONGRESSIONAL RESEARCH SERVICE

The Ccmnmittee obtained the following views on the 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,

Hon. Washington, D.C., July 26,1972. JAMES B. ALLEN,

U.S. Senate,

Washington, D.C.

DEAR JIM: This is in response to your letter of July 20 on the amend- 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 and unreasonable searches.

The constitutional infirmities of the Commerce Committee provision are strongly determined by the regulatory scheme contemplated by the

remainder of the legislation. Under existing Supreme Court decisions,

the most significant Fourth Amendment problems arise where a criminal sanction is part of the regulatory scheme and related to the search.

For example, in the case of Camara v. Municipal Court, 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 is required. In another case handed down

the same day, See v. City of Seattle, 87 S. Ct. 1737 (1967), the court held that even in an inspection of a commercial establishment, when

the inspection moves into private areas of the establishment a warrant is necessary if failure to allow entry will result in a criminal sanction.

Therefore, if failure to allow entry of Environmental 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 to consent 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 to the search under

H.R. 10729 then the Commerce Committee amendment may be

constitutional.
60

However, even if all of these 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 would be 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 of help to you and the committee.

With kindest wishes,

Sincerely yours,

SAM J. EnwN, Jr.,

Chairman.

AIERICAN CIVIL LIBERTIES UNION,

Washington, D.C., July 26,1972. Hon. JTAMEs 13. ALLEN,

New Senate Office Building,

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, Collanade Catering Corp. v. United States, 397 U.S. 72 (1970) (liquor dealers), United States v. Biswell. 82 S.Ct.

1593 (1972) (gun dealers). But warrantless searches of private dwellings have not been sanctioned.

In 0amara v. Municipal Court, 387 U.S. 523 (1967), the Supreme Court upheld the citizen's Fourth Amendment right to resist a war- rantless search of his 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 as is here the 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 of the privacy rights of private citizens

and we oppose it. We do not by specifically mentioning the amendment

wish to intimate that we approve of the practice of uouwarrant inspections of business premises.

Sincerely,

CIHARLES MORGAN, Jr.,

Director.
61

THE LIBRARY OF CONGRESS,

CONGRESSIONAL RESEARCH SERVICE,

Washingtan, D.C., July 27,1972.

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- tions Authorized 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 or 9."

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 does not require the agent to first obtain 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 for all inspections. There are two lines of cases 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. City of Seattle, 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 made for

inspections of liquor establishments run by federally licensed dealers

(Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970)), and

for inspections of the premises of firearms dealers, United States v. Biswell, No. 71-81, May 15, 1972.

The Camara decision overruled the Court's earlier decision in Frank v. Maryland, 359 U.S. 560 (1959). In Camara, the Court held that a homeowner could not be held criminally liable for refusing 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, the Court held that the owner of commercial property-in See a locked warehouse-could also refuse to open his property for a rou- tine fire inspection by an inspector not holding a search warrant. Both

decisions excepted emergency searches from the warrant requirement. The Court derived the Camara and See holdings from its view of
"the basic purpose" of the Fourth Amendment "to safeguard the privacy and security of individuals against arbitrary invasions by government officials." Protection of that privacy and security requires

that, "except in certain carefully defined classes of cases," the decision

that privacy must yield to the right of search must be decided "by a

judicial officer, not by a policeman or government enforcement agent."

"Under the present system, when the inspector demands entry, the

occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of

knowing whether the inspector himself is acting under proper authorization. These are questions which may be reviewed by a neutral magistrate without any reassessment of the basic agency decision to canvass

an area." Camara, 387 U.S. at 532.

Because there was no indication that "the burden of obtaining a warrant is likely to frustrate the government 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 of a crime. The need for inspection, "weighed in terms of ...(the) reasonable goals of code enforcement" of "city-wide compliance with minimum physical standards

for private property," (387 U.S. at 535) might justify 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 "the inspections are neither personal in nature nor aimed at the discovery of evidence of crime." 387 U.S. at 537.

In See v. City of Seattle. supra, the Court relied on the 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, without consent, upon the portions 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 Court reserved judgment on whether

warrantless searches could be authorized as part of a licensing scheme.

In Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), the Court held that federal excise tax regulation of retail 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 Colonnade was probably less significant, however, than dictum indicating that See is inapplicable to federal regulation

of the liquor industry.

"We deal 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 United States 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, IS U.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 of places where pesticides are held or used 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 to the 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 in such searches.

"When a dealer chooses to engage in this pervasively regulated busi- ness and to accept a federal license, he does so with the knowledge that

his business records, firearms and ammunition will be subject to effective inspection. Each licensee is annually furnished with a revised

compilation of ordinances which describe his obligations and define

the inspector's authority. 18 tJ.S.C. Sec. 921 (a) (19). The dealer is not

left to wonder about the purposes of the inspector or the limits of

his task." Slip opinion, 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

firearms to fall within the Colon nce-Biswell rule permitting warrantless searches of producers' places of business. As the Court indicated in

See, "challenge to such programs can only be resolved ...on a case- 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 if such inspections were to extend to private homes and unregis- tered commercial establishments, we see no support in the case 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

would not be liable for prosecution under section 12 for failing to per- mit inspection of his home for pesticides, since that section applies only to records and establishments.

Copies of the decisions of the four cases discussed above are enclosed.

GEORGE COSTELLO, Legislative A attorney.
COMMENTS OF THE 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 carry out the Act.

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, and not to exceed $35

million for the fiscal year ending June 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 of this committee and Report

No. 92-970 of the Commerce Committee, that the 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 the bill are

added to the costs already required to carry out the existing 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 on Agricultural Research and General Legislation, Committee on Agriculture and Forestry, Washington,

D.C.

DEAR MR. CHAIRMAN: We are pleased to respond to your request for

five year cost estimates for the implementation of the current Federal

Insecticide, Fungicide and Rodenticide Act, and the amendments to

that act proposed by the Committee 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

would be required by the proposed amendments.

The enclosures provide the estimated costs for these new legislative

alternatives for Fiscal Years 1973 through 1977, assuming that the bill

being estimated were to be enacted early in Fiscal Year 1973. The costs

shown for the implementation of the current Federal Insecticide, Fungicide and Rodenticide Act are consistent with the Agency's Fiscal

Year 1973 budget request, which is currently under consideration. It

should be noted that the funds which would be authorized by Section
27 of the Comsmerce Committee version are less than the amount already

committed in Fiscal Year 1972, and budgeted in Fiscal Year 1973, and

only slightly larger than the estimated requirements for our current program in Fiscal Year 1974. This dollar limitation would not permit

adequate expansion of our efforts to take on the new responsibilities

imposed by the legislation. (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 of the costs which might be incurred

by other Federal Agencies, or the costs of related efforts currently

being carried out under existing 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 in future years will have to be 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 Fiscal Projection of Costs-Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) (Current Law) I

[In millions of dollars]

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 of them are performed under other authorities such as the 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 of Enforcement 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 of the bills,

and do not include the costs of continuing our basic efforts. Therefore,

they should be added to the figures shown above in determining the

total funding estimate for EPA's Pesticide programs under the various

authorities.
66

5-YEAR FISCAL PROJECTION OF COSTS FOR IMPLEMENTING THE FEDERAL ENVIRONMENTAL PESTICIDE

CONTROL ACT (S. REPT. NO. 92-838, AGRICULTURE AND FORESTRY COMMITTEE)

in millions of dollars]

Fiscal year1973 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)

New Activities Required by the Act

5-YEAR FISCAL PROJECTION OF COSTS FOR IMPLEMENTING THE FEDERAL ENVIRONMENTAL PESTICIDE CONTROL

ACT (S. REPT. NO. 92-970. COMMERCE COMMITTEE)

[in millions of dollars)

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 Activities Required by the Act

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 for the application of pesticides when sold separately therefrom. It now appears that

this ommission was not intentional and was not favored by EPA.

To restore this exemption, there should be inserted on page 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, the words "or device" shouldbe stricken

since this provision applies to a 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 of this 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 to the general public.

As soon as the committee print had been completed, the Chairman of this Committee wrote to the Chairman of the Committee on Commerce as follows:
U.S. SENATE,

Cosr3aIyreEE ON AGRII'ULTVRE AND FORESTRY,

Washington, D.C., July 27, 1972. Hon. WARREN G. MAGnUS ON,

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 to carry out this law to an amount clearly below what is needed.

(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 to cripple its enforcement.

I am sure that when you wrote to me on December 16, 1971, it was

not your intention to invade the jurisdiction of the 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

of the witnesses who asked to be beard in opposition to the 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 of the Committee 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 the Committee 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 sorry that the Senate finds itself in this situation on this impor- tant legislation. All of the 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 hope that you will study this matter and that together we may find some way out of this dilemma. Please let me have your views on this matter.

Sincerely,

HERM AN E. TALMADGE,

Chairman.

On August 1, the Chairman of this Committee received the following letter from the Chairman of the Commerce Committee and on the same day gave the following reply.

U.S. SENATE,

COMMITTEE ON COMMERCE,

Hon. HERMIAN E. Washington. D.C., July £8, 197£. 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 us on the pesticide bill, and while I cannot concur with

many of the statements in your 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 our conflicts 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. VARrmN G. hlACTSON, At (.UST 1, 1972.

Chairman, Camoni/trc on, (oniimerre.

lvash i/sq/ton. J).C. n, If oais,,: Thank you for Vour letter of .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 find a way of agreeing 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 staffs began meeting on August 1 and 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 this report, was agreed ulOn.

EXPLANATION OF CO3uPROMISE AMENDMENT IN THE NATURE OF A

SUBSTITUTE

The substitute consists of the 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 of interest witli

respect to any matter considered by such committee. This appears

to be in accord with existing general 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 to section 8 (which authorize the prescription of books

and records requirements), and

(B) prohibit the exportation of pesticides prepared for

export in accordance with the foreign purchaser's directions
70

if such export would result in adverse effects on the environment of the 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 of pesticides banned in the United States; provides a penalty for exportation contrary to its provisions; would require the Administrator, inl determining 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 the pesticide 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 in adverse effects" would be subject to judicial 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 the Administrator;

(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 of information 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 that registration 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 of that 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 in paragraph (E) below.

The Commerce Committee amendment on this point would

have required oral communications to have been made public, would have been limited to communications between the Administrator and "manufact urers". 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 of trade secrets, confidential financial information, or commercial information the disclosure of
which 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 to release

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 against the 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

of registration.

(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 the Commerce

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 of the agreement with respect to a substitute it was agreed

that the following should be included in the legislative history of the

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 of the 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 shall b 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 in conduct of a l)usiness, it would confer

a competitive advantage on said owner: (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 respect to 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

all relevant tests and their results aid

(2) To prevent unnecessary repetitive testing by subsequent ap- plicants.

Thus, all data either voluntarily submitted hereunder or required to be submitted by the Administrator may be used by the Administrator

in making 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 of the originator

)f the test data, liowver, it is recognized that in certain circumstances

it iight be unfair or 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 would wg represent a wasteful, time-consuming, aii costly process resulting in a sulistantial misallocation of

resources. Thus it was decided that fairness and equity require a shar-
73

ing of the governmentally required cost of producing the test data used

in support of an 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 upon requests for

use of such data by additional applicants.

0