THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Statutes and Legislative History
Executive Orders
Regulations
Guidelines and Reports
3J
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SEZ
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IU
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Supplement I
Volume IV
Pesticides
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THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Statutes and Legislative History
Executive Orders
Regulations
Guidelines and Reports
Supplement I
Volume IV
Pesticides
3J
4
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JANUARY 1973
WILLIAM D. RUCKELSHAUS
Administrator
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 - Price $16.65 per 5 vol. set. Sold in sets only
Stock Number 5500-00086
U.S. Environmental Protection Agency
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FOREWORD
No nation in the history of the world has ex^er developed as fast as
the United States. Starting virtually from scratch, we created in one
century the world's first industrial society on a continental scale. Since
we derived such great benefits from the exploitation of natural re-
sources, it is not surprising that we equated all forms of growth with
progress.
Today, however, there is a new mood in this country. We are dis-
posed to look more carefully at our past assumptions, including those
which brought us wealth, comfort, and convenience. We have learned
a great deal, especially in the last decade. We have acquired a more
comprehensive perception of the problems of modern society and how
persistent and intractable they can be. But these problems are not be-
yond solution. They give way before ingenuity, perseverance, and
mutual cooperation.
I think this nation is well on its way to a new era of environmental
stewardship. We are beginning to realize that the earth itself, the
whole biosphere, is an environment from which we cannot insulate
ourselves. We are learning that while we may alter that environment,
we must also be prepared to protect it and to foresee the full effects of
our actions on tomorrow's world.
When future historians look back on this period, they should say
it was an age of enlightenment when man first understood that his
limitless capacity to innovate always takes place within nature, not
outside it, and that preserving the life systems of the earth is his most
sacred task.
It will take decades of heavy investment, generations of strenuous
effort, and many hard years of learning to live with new habits and
imperatives. But in the end we shall restore the earth—not perhaps
to what it was in the past, for the past is unrecoverable— but to a new
condition of wholeness, where man may live in peace.
Such a world is ours for the making.
WILLIAM D. RTJCKELSHATTS
Administrator
U.8. Environmental Protection Agency
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PREFACE
Eeorganization Plan No. 3 of 1970 transferred 15 governmental
units with their functions and legal authority to create the U.S. En-
vironmental Protection Agency. Since only the major laws were cited
in the Plan, the Administrator, William D. Ruckelshaus, requested
that a compilation of EPA legal authority be researched and pub-
lished.
The publication has the primary function of providing a working
document for the Agency itself. Secondarily, it will serve as a research
tool for the public.
This particular volume, which constitutes the first supplement, is a
product of a permanent office in the Office of Legislation, established
to perform the updating function.
It is the hope of EPA that this set will assist in the awesome task of
developing a better environment.
MARY LANE REED WARD GENTRY, J.D.
Assistant Director, Office of Field Operations
Office of Legislation
U.S. Environmental Protection Agency
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2-EPA
INSTRUCTIONS
This new publication is intended to do two things. It is designed
first to update the EPA Legal Compilation, which first appeared in
1973. But it is also intended to stand alone as a collection and
presentation in one document of the text and legislative history of
the major environmental legislation enacted during the Second Ses-
sion of the 92d Congress.
In the first instance, for those using this publication in conjunction
with the Compilation, the point system employed there will be con-
tinued here. Although in that work at each solely numerical point
(1.1, 1.2, etc.) the complete then current text of the pertinent statutes
was provided, in this publication ONLY the public law text of the
latest amendment will be used because the new legislation has not yet
been codified. The public law texts appear at the appropriate numeri-
cal-alphabetical point (1.32a, 1.2r, etc.) of the legislative history.
For those using this publication as an independent document, the
Table of Contents has a listing of the materials included by specific
environmental area.
Finally, this work is intended for general legal reference and in-
formation, not as one which may be formally cited in the legal sense,
and the author disclaims responsibility for liability arising from its
use. In this connection, it should be noted that the many quotations
from the Congressional Record for the 92nd Congress were taken
from the "unofficial" daily version which is subject to subsequent
modification by the Members prior to the publication of the final of-
ficial record, not available at this time.
From the outset, our concern was to make this important material
available to the public as quickly as possible and we recognized that
in order to accomplish this, we would have to diminish its official
character to some extent. We think that it was a fair trade-off.
------- OCR error (C:\Conversion\JobRoot\00000CRG\tiff\200151W1.tif): Unspecified error
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CONTENTS
Volume I-III
WATER Pafe
1.2 Federal Water Pollution Control Act, as amended, 33
U.S.C. § 1251 etseq 1
1.2p Federal Water Pollution Control Act Amendments of
1972, October 18, 1972, P.L. 92-500, 86 Stat. 816... 1
(1) Senate Committee on Public Works, S. REP. No.
92-414, 92d Cong., 1st Sess. (1971) 90
(2) House Committee on Public Works, H.R. REP.
No. 92-911, 92d Cong., 2d Sess. (1972) 205
(3) Committee of Conference, H.R. REP. No. 92-
1465, 92d Cong., 2d Sess. (1972) 628
(4) Congressional Record:
(a) Vol. 117 (1971), Nov. 2: Considered and
passed Senate, pp. S17396-S17487; 785
(b) Vol. 118 (1972), Mar. 27-29: Considered
and passed House, amended in lieu of H.R.
11896, pp. H2478-H2545, H2584-H2647,
H2718-H2800; 967
(c) Vol. 118 (1972), Oct. 4: House and Senate
agreed to conference report, pp. S16869-
S16895, H9114-H9135; 1395
(d) Vol. 118 (1972), Oct. 17: Senate overrode
veto, pp. S18534-S18535, S18546-S18554;... 1489
(e) Vol. 118 (1972), Oct. 18: House overrode
veto, pp. H10266-H10273 1510
1.32 Marine Protection, Research, and Sanctuaries Act, 33
U.S.C. § 1401e(seg 1525
1.32a Marine Protection, Research, and Sanctuaries Act
of 1972, October 23, 1972, P.L. 92-532, 86 Stat.
1052 1525
ix
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CONTENTS
Page
(1) House Committee on Merchant Marine and
Fisheries, H.R. REP. No. 92-361, 92d Cong.,
IstSess. (1971) 1537
(2) Senate Committee on Commerce, S. REP. No.
92-451, 92d Cong., 1st Sess. (1971) 1609
(3) Committee of Conference, H.R. REP. No. 92-
1546, 92d Cong., 2d Sess. (1972) 1654
(4) Congressional Record, Vol. 117 (1971):
(a) Sept. 8, 9: Considered and passed House,
pp. H8182-H8199, H8225-H8255; 1673
(b) Nov. 24: Considered and passed Senate,
amended, pp. S19629-S19655; 1768
(c) Vol. 118 (1972), Oct. 13: Senate and House
agreed to conference report, pp. S17962-
S17963, H9904-H9908 1823
Volume IV
PESTICIDES
1.1 Federal Insecticide, Fungicide, and Rodenticide Act, as
amended, 7 U.S.C. §§136-136y 1835
l.lk Federal Environmental Pesticide Control Act of 1972,
October 21, 1972, P.L. 92-516, 86 Stat. 973 1835
(1) House Committee on Agriculture, H.R. REP. No.
92-511, 92d Cong., 1st Sess. (1971) 1862
(2) Senate Committee on Agriculture and Forestry,
S. REP. No. 92-838, 92d Cong., 2d Sess (1972).. 1944
(3) Senate Committee on Commerce, S. REP. No.
92-970, 92d Cong., 2d Sess. (1972) 2091
(4) Committee of Conference, S. REP. No. 92-1540,
92d Cong., 2dSess. (1972) 2137
(5) Congressional Record:
(a) Vol. 117 (1971), Nov. 8, 9: Considered and
passed House, pp. H10674-H10680, H10726-
H10774; 2172
(b) Vol. 118 (1972), Sept 26: Considered and
passsed Senate, amended, p. S15885-
S15900; 2281
(c) Vol. 118 (1972), Oct. 5: Senate agreed to con-
ference report, pp. S16977-S16981; 2312
(d) Vol. 118 (1972), Oct. 12: House agreed to
conference report, pp. H9795-H9798 2320
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CONTENTS xi
Volume V
NOISE
Page
1.4 Noise Control Act, 42 U.S.C. § 4901 et seq 2328
1.4a Noise Control Act of 1972, October 27, 1972, P.L. 92-
574, 86 Stat. 1234 2328
(1) House Committee on Interstate and Foreign Com-
merce, H.R. REP. No. 92-842, 92d Cong., 2d
Sess.(1972) 2345
(2) Senate Committee on Public Works, S. REP. No.
92-1160, 92d Cong., 2d Sess. (1972) 2384
(3) Congressional Record, Vol. 118 (1972):
(a) Feb. 29: Considered and passed House, pp.
H1508-H1539 2345
(b) Oct. 12: Considered in Senate, pp. S17743-
S17764, S17774-S17785; 2499
(c) Oct. 13: Considered and passed Senate,
amended, pp. S17988-S18014; 2567
(d) Oct. 18: House concurred in Senate amend-
ment, with an amendment, pp. H10261-
H10262, H10287-H10300; 2621
(e) Oct. 18. Senate concurred in House amend-
ment, pp.S18638-S18646 2651
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY
1835
1.1 FEDERAL INSECTICIDE, FUNGICIDE, AND
RODENTICIDE ACT, AS AMENDED
7 U.S.C. §§ 136-136y
(Since the latest amendments have not been codified, see l.lk for text)
1.1k FEDERAL ENVIRONMENTAL PESTICIDE
CONTROL ACT OF 1972
October 21,1972, P.L. 92-516, 86 Stat. 973
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act'may
be cited as the "Federal Environmental Pesticide Control Act of 1972".
AMENDMENTS TO FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
SEC. 2. The Federal Insecticide, Fungicide, and Rodenticide Act
(7 U.S.C. 135 et seq.) is amended to read as follows:
"SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
"(a) SHORT TITLE.—This Act may be cited as the 'Federal Insecti-
cide, Fungicide, and Rodenticide Act.
"(b) TABLE or CONTENTS.—
"Section 1. Short title and table of contents.
"(a) Short title.
" (b) Table of contents.
"Se<-. 2. Definitions.
'(a) Active ingredient.
' (b) Administrator.
'(c) Adulterated.
'(d) Animal.
'(e) Certified applicator, etc.
"(1) Certified applicator.
"(2) Private applicator.
"(3) Commercial applicator.
"(4) Under the direct supervision and control of a
certified applicator.
'(f) Defoliant.
'(g) Desiccant.
'(h) Device.
'(i) District court.
' (j) Environment.
'(k) Fungus.
'(1) Imminent hazard.
'(m) Inert ingredient.
'(n) Ingredient statement.
'(o) 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.
'(x) Protect health and the environment.
'(y) Registrant.
'(z) Registration.
'(aa) State.
'(bb) Unreasonable adverse effects on the environment.
'(cc) Weed.
"(dd) Establishment.
•'Sec. 3. Registration of pesticides.
"(a) Requirement.
"(b) Exemptions.
"(c) Procedure for registration.
'(1) Statement required.
'(2) Data in support of registration.
(3) Time for acting with respect to application.
(4) Notice of application.
'(5) Approval of registration.
'(6) Denial of registration.
1]
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1836 LEGAL COMPILATION—SUPPLEMENT I
"(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 of labeling or formulation.
"(2) Registration not a defense.
" (3) Authority to consult other Federal agencies,
"Sec. 4. line of restricted use pesticide ; certified applicators.
"(a) Certification procedure.
"(1) Federal certification.
"(2) State certification.
"(b) State plana
"Sec. 5. Experimental use permits.
"(a) Issuance.
"(b) Temporary tolerance level.
"(c) Use under permit.
"(d) Studies.
" (e) Revocation.
"Sec. 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.
"Sec. 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.
"Sec. 9. Inspection of establishments, etc.
"(a) In general.
"(b) Warrants.
"(c) Enforcement.
" (1) Certification of facts to Attorney General.
"(2) Notice not required.
"(3) 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) References to Attorney General.
"(b) Criminal penalties.
"(1) In general.
"(2) Private pesticide applicator.
"(3) Disclosure of information.
"(4) Acts of officers, agents, etc.
"Sec. 15. Indemnities.
"(a) Requirement
"(b) Amount of payment.
"(1) In general.
"(2) Special rule, r _,
[p. 2]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1837
"Sec. 16. Administrative procedure; judicial review.
"(a) District court review.
" (b) Review by Court of Appeals.
"(c) Jurisdiction of district courts.
"(d) Notice of judgments.
"Sec. 17. 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. 18. Exemption of Federal agencies.
"Sec. 19. Disposal and transportation.
" (a) Procedures.
"(b) Advice to Secretary of Transportation.
"Sec. 20. Research and monitoring.
"(a) Research.
"(b) National monitoring plan.
"(c) Monitoring.
"Sec. 21. Solicitation of public comments; notice of public hearings.
"Sec. 22. Delegation and cooperation.
"Sec. 23. State cooperation, aid, and training.
"(a) Cooperative agreements.
" (b) Contracts for training.
"Sec. 24. Authority of States.
"Sec. 25. Authority of Administrator.
"(a) Regulations.
"(b) Exemption of pesticides.
"(c) Other authority.
"Sec. 26. Severabillty.
"Sec. 27. Authorization for appropriations.
"SEC. 2. DEFINITIONS.
"For purposes of this Act—
"(a) ACTIVE INGREDIENT.—The term 'active ingredient1 means—
"(1) in the case of a pesticide other than a plant regulator,
defoliant, or desiccant, an ingredient which will prevent, destroy,
repel, or mitigate 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 product thereof;
"(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 artifi-
cially accelerate the drying of plant tissue.
*'(b) ADMINISTRATOR.—The term 'Administrator' means the
Administrator of the Environmental Protection Agency.
"(c) ADULTERATED.—The term 'adulterated' applies to any pesti-
cide if:
"(1) its strength or purity falls below the professed standard
of quality as expressed on its labeling under which it is sold;
"(2) any substance has been substituted wholly or in part for
the pesticide; or
"(3) any valuable constituent of the pesticide has been wholly
or in part abstracted.
"(d) ANIMAL.—The term 'animal' means all vertebrate and inverte-
brate 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 author-
ized 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 applicator who uses or supervises the use of any pesti-
cide which is classified for restricted use for purposes of producing
[p. 3]
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1838 LEGAL COMPILATION—SUPPLEMENT I
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.
"(3) COMMERCIAL APPLICATOR.—The term 'commercial appli-
cator' 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 Dy para-
graph (2).
"(4) UNDER THE DIRECT SUPERVISION OF A CERTIFIED APPLI-
CATOR.—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 appli-
cator is not physically present at the time and place the pesticide
is applied.
*' (f) DEFOLIANT.—The term 'defoliant' means any substance or mix-
ture of substances intended for causing the leaves or fo'iage to drop
from a plant, with or without causing abscission.
" (g) DESICCANT.—The term 'desiccant' means any substance or mix-
ture of substances intended for artificially accelerating the drying
of plant tissue.
"(h) DEVICE.—The term 'device' means any instrument or con-
trivance (other than a firearm) which is intended for trapping,
destroying, repelling, or mitigating any pest or any other form of
plant or animal life (other than man and other than bacteria, virus, or
other microorganism on or in living man or other living animals);
but not including equipment used for the application of pesticides
when sold separately therefrom.
"(i) DISTRICT COURT.—The term 'district court' means a United
States dbtrict 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.
"(k) FUNGUS.—The term 'fungus' means any non-chlorophyll-
bearing thallophyte (that is, any non-chlorophyll-bearing plant of a
lower order than mosses and liverworts), as for example, rust, smut,
mildew, mold, yeast, and bacteria, except those on or in living man
or other animals and those on or in processed food, beverages, or
Pharmaceuticals.
"(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 likelv to result
in unreasonable adverse effects on the environment or will involve
unreasonable hazard to the survival of a species declared endangered
by the Secretary of the Interior under Public Law 91-135.
"(m) INERT INGREDIENT.—The term 'inert ingredient' means an
ingredient which is not active.
"(n) INGREDIENT STATEMENT.—The term 'ingredient statement'
means 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 elementary arsenic.
[P- 4]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1839
"(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 insecta, comprising
six-legged, usually winged forms, as for example, beetles, bugs, bees,
flies, and to other allied classes of arthropods whose members are
wingless and usually have more than six legs, as for example, spiders,
mites, ticks, centipedes, and wood lice.
"(p) LABEL AND LABELING.—
"(1) LABEL.—The term 'label' means the written, printed, or
graphic matter on, or attached to, the pesticide or device or any
of its containers or wrappers.
"(2) LABELING.—The term 'labeling' means all labels and all
other written, printed, or graphic matter-—
"(A) accompanying the pesticide or device at any time; or
"(B) to which reference is made on the label or in litera-
ture accompanying the pesticide or device, except to current
official publications of the Environmental Protection Agency,
the United States Departments of Agriculture and Interior,
the Department of Health, Education, and Welfare, State
experiment stations, State agricultural colleges, and other
similar Federal or State institutions or agencies authorized
by law to conduct research in the field of pesticides.
"(q) MlSBRANDED.
"(1) A pesticide 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;
"(B) it is contained in a package or other container or
wrapping which does not conform to the standards estab-
lished by the Administrator pursuant to section 25 (c) (3);
"(C) it is an imitation of, or is offered for sale under the
name of, another pesticide;
"(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 con-
spicuousness (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 ordi-
nary individual under customary conditions of purchase and
use;
"(F) the labeling accompanying it does not contain direc-
tions 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 to protect hea'th and the
environment;
"(G) 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 protect health and the environment.
"(2) A pesticide is misbranded if—
'"(A) the label does not bear an ingredient statement on
that part of the immediate container (and on the outside con-
tainer or wrapper of the retail package, if there be one,
through which the ingredient statement on the immediate
container1 cannot be clearly read) which is presented or dis-
[p. 5]
525-3U O - 73 - ,
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1840 LEGAL COMPILATION—SUPPLEMENT I
played under customary conditions of purchase, except that
a pesticide is not misbranded under this subparagraph if:
"(i) the size of form of the immediate container, or the
outside'container or wrapper of 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 of the immediate container, or outside container
or wrapper, permitted by the Administrator;
1<(B) the labeling does not contain a statement of the use
classification under which the product is registered;
"(C) there is not affixed to its container, and to the out-
side container or wrapper of the retail package, if there be
one, through which the required information on the immedi-
ate container cannot be clearly read, a label bearing—
"(i) the name and address of 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 reason-
able variations; and
"(v) 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
"(D) the pes^cide contains any substance or substances
in quantities nighly 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 a back-
ground of distinctly contrasting color; and
"(iii) a statement of a practical treatment (first aid
or otherwise) in case of poisoning by the pesticide.
"(r) NEMATODE.—The term 'nematode' means invertebrate animals
f the phylum nemathelminthes and class nematoda, that is, unseg-
mented 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.
''(s) PERSON.—The term 'person' means any individual, partnership,
association, corporation, or any organized group of persons whether
incorporated or not.
"(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)(l).
"(u) PESTICIDE.—The term 'pesticide' means (1) any substance or
mixture of substances intended for preventing, destroying, repelling,
or mitigating any pest, and (2) any substance or mixture of sub-
stances intended for use as a plant regulator, defoliant, or desiccant.
"(v) PLANT REGULATOR.—The term 'plant regulator' means any
substance or mixture of substances intended, through physiological
action, for accelerating or retarding the rate of growth or rate of
maturation, or for otherwise altering the behavior of plants or the
produce thereof, but shall not include substances to the extent that
they are, intended as plant nutrients, trace elements, nutritional
[p. 6]
"(r)
of the
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1841
chemicals, plant inoculants, and soil amendments. Also, the term 'plant
regulator' shall not be required to include any of such of those nutrient
mixtures or soil amendments as are commonlj known as vitamin-
hormone horticultural products, intended for improvement, mainte-
nance, survival, health, and propagation of plants, and as are not for
pest destruction and are nontoxic, nonpoisonous in the undiluted
packaged concentration.
" (w) PRODUCER AND PRODUCE.—The term 'producer' means the per-
son 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 environ-
ment' mean protection against any unreasonable adverse effects on
the environment.
"(y) REGISTRANT.—The term 'registrant' means a person who has
registered any pesticide pursuant to the provisions of this Act.
" (z) REGISTRATION.—The term 'registration' includes reregistration.
"(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.
"(bb) UNREASONABLE ADVERSE EFFECTS ON THE ENVIRONMENT.—
The term 'unreasonable adverse effects on the environment' means any
unreasonable risk to man or the environment, taking into account the
economic, social, and environmental costs and benefits of the use of any
pesticide.
"(cc) WEED.—The term 'weed' means any plant which grows where
not wanted.
"(dd) ESTABLISHMENT.—The term 'establishment' means any place
where a pesticide or device is produced, or held, for distribution or sale.
"SEC. 3. REGISTRATION OF PESTICIDES.
"(a) REQUIREMENT.—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.
"(b) EXEMPTIONS.—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 bv 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 Tvith the
requirements of an experimental use permit.
"(c) PROCEDURE FOR REGISTRATION.—
(1) STATEMENT REQUIRED.—Each applicant for registration of
a pesticide shall file with the Administrator a statement which
includes—
"(A) the name and address of the applicant and of any
other person whose name will appear on the labeling;
" f B) the name of the pesticide;
"(C) a complete copy of the labeling of the pesticide, a
statement of all claims to be made for it, and any directions
for its use;
"(D) if requested by the Administrator, a full description
of the tests made and the results thereof upon which the
[p. 7]
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1842 LEGAL COMPILATION—SUPPLEMENT I
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 unless such other applicant shall
have first offered to pay reasonable compensation for pro-
ducing the test data to be relied upon and such data is not
protected from disclosure by section 10 (b). If the parties can-
not agree on the amount and method of payment, the Admin-
istrator shall make such determination and may fix such other
terms and conditions as may be reasonable under the circum-
stances. The Administrator's determination shall be made on
the record after notice and opportunity for hearing. If the
owner of the test data does not agree with said determination,
he may, within thirty days, take an appeal to the federal
district court for the district in which he resides with respect
to either the amount of the payment or the terms of payment,
or both. In no event shall the amount of payment determined
by the court be less than that determined by the
Administrator;
" (E) the complete formula 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 or REGISTRATION.—The Administrator
shall publish guidelines specifying the kinds of information 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 sufficient 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 applica-
tion 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 pub-
lish in the Federal Register, promptly after receipt of the state-
ment 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
days in which any Federal agency or any other interested person
may comment.
"(5) APPROVAL OF REGISTRATION.—The Administrator shall
register a pesticide if he determines that, when considered with
any restrictions imposed under subsection (d)—
"(A) its composition is such as to warrant the proposed
claims for it;
"(B) its labeling and other material required to be sub-
mitted comply with the requirements of this Act;
"(C) it will perform its intended function without
unreasonable adverse effects on the environment: and
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1843
"(D) when used in accordance with widespread and com-
monly recognized practice it will not generally cause
unreasonable adverse effects on the environment.
The Administrator shall not make any lack of essentiality a cri-
terion for denying registration of any pesticide. Where two
pesticides meet the requirements of this paragraph, one should not
be registered in preference to the other.
''(6) DENIAL OF REGISTRATION.—If the Administrator deter-
mines that the requirements of paragraph (o) for registration are
not satisfied, he shall notify the applicant for registration of 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. 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 notifi-
cation, 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.
"(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, lie 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 packag-
ing and labeling for restricted vises shall be clearly distin-
guishable 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, warn-
ings and cautions and for the uses for which it is registered,
or for one or more of such uses, or in accordance with a wide-
spread and commonly recognized practice, will not generally
cause unreasonable 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,, warn-
ings and cautions and for the uses for which it is registered,
or for one or more of such uses, or in accordance with a wide-
spread and commonly recognized practice, may generally
cause, without additional regulatory restrictions, unreason-
able adverse effects on the environment, including injury to
the applicator, he shall classify the pesticide, or the particular
[p. 9]
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1844 LEGAL COMPILATION—SUPPLEMENT I
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 appli-
cator 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 addi-
tional regulatory restriction may cause unreasonable
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 CLASSIFICATION.—If the Administrator deter-
mines that a change in the classification of any use of a pesticide
from general use to restricted use is necessary to prevent unreason-
able adverse effects on the environment, he shall notify the regis-
trant of such pesticide of such determination at least 30 days
before making the change and shall publish the proposed change.
in the Federal Eegister. The registrant, or other interested person
with the concurrence of the registrant, may seek relief from such
determination under section 6(b).
"(e) PRODUCTS WITH SAME FORMULATION AND CLAIMS.—Products
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 pesti-
cide may be registered as a single pesticide; and additional names and
labels shall be added to the registration by supplemental statements.
"(f) MISCELLANEOUS.—
"(1) EFFECT OF CHANGE OF LABELING OR FORMULATION.—If the
labeling or formulation for a pesticide is changed, the registration
shall bs amended to reflect such change if the Administrator
determines that the change will not violate any provision of this
Act.
"(2) REGISTRATION NOT A DEFENSE.—In no event shall registra-
tion of an article be construed as a defense for the commission
of any offense under this Act: Provided, That as long as no can-
cellation proceedings are in effect registration of a pesticide shall
be prima facie evidence that the pesticide, its labeling and pack-
aging comply with the registration provisions of the Act.
"(3) AUTHORITY TO CONSULT OTHER FEDERAL AGF.NCIEB.—In con-
nection with consideration of any registration or application for
registration under this section, the Administrator may consult
with any other Federal agency.
[p. 10]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1845
"SEC. 4. USE OF RESTRICTED USE PESTICIDES; CERTIFIED APPLI-
CATORS.
"(a) CERTIFICATION PROCEDURE.—
"(1) FEDERAL CERTIFICATION.—Subject to paragraph (2), the
Administrator shall prescribe standards for the certification of
applicators of pesticides. 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 modifica-
tion 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 put 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 information 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 para-
graph (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 Administra-
tor 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 adminis-
tering the certification program in accordance with the plan approved
under this section, he shall so notify the State and provide for a hear-
ing 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 of such plan.
"SEC. 5. EXPERIMENTAL USE PERMITS.
"(a) ISSUANCE.—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 experi-
mental use permit may be filed at the time of or before or after an
application for registration is filed.
"(b) TEMPORARY TOLERANCE LEVEL.—If the Administrator deter-
mines 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 level foy the residue of the pesticide before issuing the
experimental use permit. r_ -Q-J
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1846 LEGAL COMPILATION—SUPPLEMENT I
"(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
unreasonable adverse effects on the environment. All results of such
studies shall be reported to the Administrator before such pesticide
may be registered under section 3.
"(e) REVOCATION.—The Administrator may revoke any experi-
mental 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 unreasonable 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.
"SEC. 6. ADMINISTRATIVE REVIEW; SUSPENSION.
"(a) CANCELLATION AFTER FIVE YEARS—
" (1) PROCEDURE.—The Administrator shall cancel the registra-
tion of any pesticide at the end of 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, before the end of
such period, requests in accordance with regulations prescribed by
the Administrator that 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 can-
celed under this subsection or subsection (b) to such extent, under
such conditions, and for such uses as he may specify if he deter-
mines that such sale or use is not inconsistent with the purposes of
this Act and will not have unreasonable 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 regis-
trant or other interested person with the concurrence of the
registrant does not request that the registration be continued in
effect.
"(2) INFORMATION.—-If at any time after the registration of a
pesticide the registrant has additional factual information regard-
ing unreasonable adverse effects on the environment of the pesti-
cide, he shall submit such information to the Administrator.
"(b) CANCELLATION AND CHANGE IN CLASSIFICATION.—If it appears
to the Administrator that a pesticide or its labeling or other material
required to be submitted does not comply with the provisions of this
Act or, when used in accordance with widespread and commonly
recognized practice, generally causes unreasonable adverse effects on
the environment, the Administrator may issue a notice of his intent
either— r „..
[p. 12]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1847
"(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 registra-
tion should be canceled or its classification changed.
Such notice shall be sent to the registrant and made public. The pro-
posed action shall become final and effective at the end of 30 days from
receipt by the registrant, or publication, of a notice issued under para-
graph (1), whichever occurs later, 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.
"(c) 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 classification proceedings, he may, by
order, suspend the registration of the pesticide immediately. No
order of suspension 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 Administrator shall
notify the registrant prior to issuing any suspension order. Such
notice shall include findings pertaining to the question of 'immi-
nent hazard'. The registrant shall then have an opportunity, in
accordance with the provisions of paragraph (2), for an expe-
dited hearing before the Agency on the question of whether an
imminent hazard exists.
"(2) EXPEDITE HEARING.—If no request for a hearing is sub-
mitted to the Agency within five days of the registrant's receipt
of the notification provided for by paragraph (1), the suspension
order may be issued and shall take effect and shall not be review-
able by a court. 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. The presiding officer shall have ten days from the
conclusion of the presentation of evidence to submit recommended
findings and conclusions to the Administrator, who shall then
have seven days to render a final order on the issue of suspension.
"(3) EMERGENCY ORDER.—Whenever the Administrator deter-
mines 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 (i) the order of suspension shall be
in effect pending the expeditious completion of the remedies pro-
vided by that paragraph and the issuance of a final order on sus-
pension, and (ii) 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. Any
person so filing briefs shall be considered a party to such pro-
ceeding for the purposes of section 16 (b). r jg-i
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1848 LEGAL COMPILATION—SUPPLEMENT I
"(4) JUDICIAL REVIEW.—A final order on the question of sus-
pension 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
docket of the courts of appeals. Any order of suspension entered
prior to a 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 court, solely to determine whether the order of suspension
was arbitrary, capricious or an abuse of discretion, or whether the
order was issued in accordance with the procedures established
by law. The effect of any order of the court will be only to stay
the effectiveness of the suspension order, pending the Administra-
tor's final decision with respect to cancellation or change in classi-
fication. This action may be maintained simultaneously with any
administrative review proceeding under this section. The com-
mencement of proceedings under this paragraph shall not operate
as a stay of order, unless ordered by the court.
"(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 rea-
sonable scope of evidence sought by any party to a public hearing, the
Hearing Examiner shall issue a siibpena to compel testimony or pro-
duction of documents from any person. The Hearing Examiner 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 and when in the Hearing
Examiner's judgment it is necessary or desirable, the Hearing Exam-
iner shall at any time before the hearing record is closed refer to a
Committee of the National Academy of Sciences the relevant questions
of scientific fact involved in the public hearing. No member of any
committee of the National Academy of Sciences established to carry
out the functions of this section shall have a financial or other conflict
of interest with respect to any matter considered by such committee.
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 Adminis-
trator 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 required
by the Administrator for carrying out the purposes of this Act. As
soon as practicable after completion of the 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
[p. 14]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1849
this section, or shall issue an order either canceling the registration,
changing the classification, denying the registration, or requiring mod-
ification of the labeling or packaging of the article. Sucli 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.
"(e) JUDICIAL REVIEW.—Final orders of the Administrator under
this section shall be subject to judicial review pursuant to section 16.
"SEC. 7. REGISTRATION OF ESTABLISHMENTS.
"(a) REQUIREMENT.—No person shall produce any pesticide sub-
ject 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 establishment and of the producer who operates such
establishment.
" (b) REGISTRATION.—Whenever the Administrator receives an appli-
cation 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 Admin-
istrator for the purpose of issuing a stop sale order pursuant to
section 13, 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 informa-
tion submitted to the Administrator pursuant to subsection (c) shall
be considered confidential and shall be subject to the provisions of
section 10.
"SEC. 8. BOOKS AND RECORDS.
" (a) REQUIREMENTS.—The Administrator may prescribe regulations
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 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).
"(b) INSPECTION.—'For the purposes of enforcing the provisions of
this Act, any producer, distributor, carrier, dealer, or any other person
who sells or offers for sale, delivers or offers for delivery any pesticide
or device subject to this Act, shall, upon request of'any officer or
employee of the Environmental Protection Agency or of any State or
political subdivision, duly designated by the 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 pesticide or device, including the quantity, the date of shipment
and receipt, and the name of the consignor and consignee; or (2) in the
event of the inability of any person to produce records containing such
[p. 15]
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1850 LEGAL COMPILATION—SUPPLEMENT I
information, all other records and information relating to such deliv-
ery, movement, or -holding of the pesticide or device. Any inspection
with respect to any records and information referred to in this sub-
section shall not extend to financial data, sales data other than ship-
ment 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).
"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 to enter at reasonable times, any establishment or other
place where pesticides or devices are held for distribution or sale for
the purpose of inspecting and obtaining 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, appropriate 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 suffi-
cient 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 jurisdic-
tion 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 con-
signee of any pesticide or device found in the establishment which
is adulterated, misbranded, not registered (in the case of a pes-
ticide) 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
of this Act.
"(c) ENFORCEMENT.—
"(1) CERTIFICATION or FACTS TO ATTORNEY GENERAL.—The
examination of pesticides or devices shall be made in the Environ-
mental Protection Agency or elsewhere as the Administrator may
designate for the purpose of determining from such examinations
whether they comply with the requirements of this Act. If it
shall appear from any such examination that they fail to comply
with the requirements of this Act, the Administrator shall cause
notice to be given to the person against whom criminal or civil
proceedings are contemplated. Any person so notified shall be
[p. 16]
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PESTICIDES STATUTES AND LEGISLATIVE HISTORY 1851
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 Administrator it appears that the provisions
of this Act have been violated bv such person, then the Adminis-
trator shall certify the facts to the Attorney General, with a copy
of the results of the analysis or the examination of such 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 pro-
ceedings and opportunity to present views set forth in this sub-
section are not prerequisites to the institution of any proceeding
by the Attorney General.
''(3) WARNING NOTICES.—Nothing in this Act shall be con-
strued as requiring the Administrator to institute proceedings
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.
"SEC. 10. PROTECTION OF TRADE SECRETS AND OTHER INFORMATION.
"(a) IN GENERAL.—In submitting data required by this Act, the
applicant 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.
"(b) DISCLOSURE.—Notwithstanding any other provision of this Act,
the Administrator shall not make public information which in his judg-
ment 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 authoriza-
tion 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.
" (c) DISPUTES.—If the Administrator proposes to release for inspec-
tion information which the applicant or registrant believes to be
protected from disclosure under subsection (b), he shall notify the
applicant or registrant, in writing, by certified mail. The Administra-
tor shall not thereafter make available for inspection such data until
thirty days after receipt of the notice by the applicant or registrant.
During this period, the applicant or registrant may institute an action
in an appropriate district court for a declaratory judgment as to
whether such information is subject to protection under subsection (b).
"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 stand-
ards for licensing or certification, the Administrator shall establish
separate standards for commercial and private applicators.
"SEC. 12. UNLAWFUL ACTS.
"(a) IN GENERAL.—
"(1) Except as provided by subsection (b), it shall be unlawful
for any person in any State to distribute, sell, offer for sale, hold
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1852 LEGAL COMPILATION1-SUPPLEMENT I
for sale, ship, deliver for shipment, or receive and (having so
received) deliver or offer to deliver, to any person—
"(A) any pesticide which is not registered under section 3,
except as provided by section 6 (a) (1);
" (B) any registered pesticide if any claims made for it as a
part of its distribution or sale substantially differ from any
claims made for it as a part of the statement, required in
connection with its registration under section 3;
"(C) any registered pesticide the composition of which
differs at the time of its distribution or sale from its compo-
sition as described in the statement required in connection
with its registration under section 3;
" (D) any pesticide which has not been colored or discolored
pursuant to the provisions of section 25(c)(5);
"(E) any pesticide which is adulterated or misbranded; or
"(F) any device which is misbranded.
"(2) It shall be unlawful for any person—
"(A) to detach, alter, deface, or destroy, in whole or in
part, any labeling required under this Act;
"(B) to refuse to keep any records required pursuant to
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;
"(C) to give a guaranty or undertaking provided for in
subsection (b) which is false in any particular, except that
a person who receives and relies upon a guaranty authorized
under 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;
"(D) to use for his own advantage or to reveal, other than
to the Administrator, or officials or employees of the Environ-
mental Protection Agency or other Federal executive agen-
cies, or to the courts, or to physicians, pharmacists, and other
qualified persons, needing such information for the perform-
ance of their duties, in accordance with such directions as
the Administrator may prescribe, any information acquired
by authority 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 assigned 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 regula-
tions thereunder;
"(G) to use any registered pesticide in a manner incon-
sistent 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 pesti-
cide under section 6, except as provided by section 6 (a) (1);
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1853
"(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 filed under this Act, or any informa-
tion marked as confidential and submitted to the Adminis-
trator 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;
"(O) to add any substance to, or take any substance from,
any pesticide in a manner that may defeat the purpose of
this Act; or
"(P) to use any pesticide in tests on human beings unless
such human beings (i) are fully informed of the nature and
purposes of the test and of any physical and mental health
consequences which are reasonably foreseeable therefrom, and
(ii) freely volunteer to participate in the test.
"(b) EXEMPTION'S.—The penalties provided for a violation of para-
graph (1) of subsection (a) shall not 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 or received
in good faith the pesticide in the same unbroken package, to the
effect that the pesticide was lawfully registered at the time of sale
and delivery to him, and that it complies with the other require-
ments of this Act, 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 shipping, transporting, or
delivering for shipment any pesticide or device, if such carrier
upon request of any officer or employee duly designated by the
Administrator shall permit such officer or employee to copy all
of its records concerning such pesticide or device;
"(3) any public official while engaged in the performance of
his official duties;
"(4) 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 sub-
stances being put through tests in which the purpose is only to
determine its value for pesticide purposes or to determine its
toxicity or other properties and from which the user does not
expect to receive any benefit in pest control from its use.
"SEC. 13. STOP SALE, USE, REMOVAL, AND SEIZURE.
"(a) STOP SALE, ETC., ORDERS.—Whenever any pesticide or device
is found by the Administrator in any State and there is reason to
believe on the basis of inspection or tests that such pesticide or device
is in violation of any of the provisions of this Act, or that such pesti-
cide or device has been or is intended to be distributed or sold in viola-
tion of any such provisions, or when the registration of the pesticide
lias been canceled by a final order or has been suspended, the Admin-
istrator 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 no person shall sell, use, or
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1854 LEGAL COMPILATION—SUPPLEMENT I
remove the pesticide or device described in the order except in accord-
ance with the provisions of the order.
" (b) SEIZURE.—Any pesticide or device that is being transported or,
having been transported, remains unsold or in original unbroken
packages, or that is sold or offered for sale in any State, or that is
imported from a foreign country, shall be liable to be proceeded
against in any district court in the district where it is found and
seized for confiscation by a process in rem for condemnation if—
" (1) in the case of a pesticide—
"(A) it is adulterated or misbranded;
"(B) it is not registered pursuant to the provisions of sec-
tion 3;
"(C) its labeling fails to bear the information required by
this Act;
"(D) it is not colored or discolored and such coloring or
discoloring is 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, 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 unreasonable 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.
"(c) DISPOSITION AFTER CONDEMNATION.—If the 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 court costs, shall be paid into the Treasury of the United
States, but the pesticide or device shall not be sold contrary to the
provisions of this Act or the laws of the jurisdiction in which it is
sold: Provided, That upon payment of the costs of the condemnation
proceedings and the execution and delivery of a good and sufficient
bond conditioned that the pesticide or device shall not be sold or
otherwise disposed of contrary to the provisions of the Act or the
laws of any jurisdiction in which sold, the court may direct that
such pesticide or device be delivered to the owner thereof. The pro-
ceedings of such condemnation cases shall conf rom, 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.
"(d) COURT COSTS, ETC.—When a decree of condemnation is
entered against the 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 pesticide or device.
"SEC. 14. PENALTIES.
"(a) CIVIL PENALTIES.—
"(1) Iw 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 $5,000 for each offense.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1855
"(2) PRIVATE 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.
"(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 appro-
priateness 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) KEFERENCES 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 Attor-
ney General, who shall recover such amount by action in the
appropriate United States district court.
"(b) CRIMINAL PENALTIES.—
"(1) IN GENERAL.—Any registrant, commercial applicator,
wholesaler, dealer, retailer, or other distributor who knowingly
violates any provision of this Act shall be guilty of a misdemeanor
and shall on conviction be fined not more than $25,000, or impris-
oned for not more than one year, or both.
"(2) PRIVATE APPLICATOR.—Any private 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 30 days, or both.
"(3) DISCLOSURE OF INFORMATION.—Any person, who, with
intent to defraud, uses or reveals information relative to formulas
of products acquired under the authority of section 3, shall be
fined not more than $10,000, or imprisoned for not more than
three years, or both.
"(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.
"SEC. 15. INDEMNITIES.
"(a) BEQUIREMENT.—If—
"(1) the Administrator notifies a registrant that he has sus-
pended the registration of a pesticide because such action is neces-
sary to prevent an imminent hazard;
" (2) the registration of the pesticide is canceled as a result of a
final determination that the use of such pesticide will create
an imminent hazard; and
"(3) any person who owned any quantity of such pesticide
immediately before the notice to the registrant under paragraph
(1) suffered losses by reason of suspension or cancellation of the
registration,
the Administrator shall make an indemnity payment to such person,
unless the Administrator finds that such person (i) had knowledge of
facts which, in themselves, would have shown that such pesticide did
[p. 21]
525-313 O - 73 - 3
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1856 LEGAL COMPILATION—SUPPLEMENT I
not meet the requirements of section 3(c) (5) for registration, and (ii)
continued thereafter to produce such pesticide without giving timely
notice of such facts to the Administrator.
"(b) AMOUNT OF PAYMENT.—
" (1) IN GENERAL.—The amount of the idemnity payment under
subsection (a) to any person shall be determined on the basis of
the cost of the pesticide owned by such person immediately before
the notice to the registrant referred to in subsection (a)(l);
except that in no event shall an indemnity payment to any person
exceed the fair market value of the pesticide owned by sudi person
immediately before the notice referred to in subsection (a)(l).
"(2) SPECIAL RULE.—Notwithstanding any other provision of
this Act, the Administrator may provide a reasonable time for use
or other disposal of such pesticide. In determining the quantity
of any pesticide for which indemnity shall be paid under this
subsection, proper adjustment shall be made for any pesticide used
or otherwise disposed of by such owner.
"SEC. 16. 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.
"(b) REVIEW BY COURT or APPEALS.—In the case of actual con-
troversy as to the validity of any order issued by the Administrator
following a public hearing, any person who will be adversely affected
by such order and who had been a party to the proceedings may obtain
judicial review by filing in the United States court of appea's for the
circuit wherein such person resides or has a place of business, within 60
days 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 Administrator or any
officer designated by him for that purpose, and thereupon the Adminis-
trator 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 order of
the Administrator shall be sustained if it is supported by substantial
evidence when considered on the record as a whole. 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 certiprari or certification as provided in section
1254 of title 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 cases
filed therein pursuant to this section.
"(c) JURISDICTION or 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.
"(d) NOTICE OF JUDGMENTS.—The Administrator shall, by publica-
tion in such manner as he may prescribe, give notice of all judgments
entered in actions instituted under the authority of this Act. _ ,
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1857
"SEC. 17. IMPORTS AND EXPORTS.
"(a) PESTICIDES AND DEVICES INTENDED FOR EXPORT.—Notwith-
standing any other provision of this Act, no 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, except that pro-
ducers of such pesticides and devices shall be subject to section 8 of this
Act.
(b) CANCELLATION NOTICES FURNISHED TO FOREIGN GOVERN-
MENTS.—Whenever a registration, or a cancellation or suspension of
the registration of a pesticide becomes effective, or ceases to be effective,
the Administrator shall transmit through the State Department
notification thereof to the governments of other countries and to
appropriate international agencies.
"(c) IMPORTATION or PESTICIDES AND DEVICES.—The Secretary of
the Treasury shall notify the Administrator of the arrival of pesti-
cides and devices and shall deliver to the Administrator, upon his
request, samples of pesticides or devices which are being imported
into the United States, giving notice to the owner or consignee, who
may appear before the 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 provisions set
forth in this Act; or is otherwise injurious to health or the environ-
ment, the 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 pesticide or device refused delivery
which shall not be exported by the consignee •within" 90 days from the
date of notice of such refusal under such regulations as the Secretary
of the Treasury may prescribe: Provided, That the Secretary of the
Treasury may deliver to the consignee such pesticide or device pend-
ing examination and decision in the matter on execution of bond for the
amount of the full invoice value of such pesticide or device, together
with the duty thereon, and on refusal to return such 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 said bond: Ana provided further, That all charges for storage, cart-
age, and labor on pesticides or devices which are refused admission or
delivery shall be paid by the owner or consignee, and in default of
?uch payment shall constitute a lien against any future importation
made by such owner or consignee.
"(d) COOPERATION IN INTERNATIONAL EFFORTS.—The Adminis-
trator shall, 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.
" (e) REGULATIONS.—The Secretary of the Treasury, in consultation
with the Administrator, shall prescribe regulations for the enforcement
of subsection (c) of this section.
"SEC. 18. EXEMPTION OP FEDERAL AGENCIES.
"The Administrator may, at his discretion, exempt any Federal or
State agency from any provision of this Act if he determines that
emergency conditions exist which require such exemption.
"SEC 19. DISPOSAL AND TRANSPORTATION.
" (a) PROCEDURES.—The Administrator shall, after consultation with
other interested Federal agencies, establish procedures and regula-
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1858 LEGAL COMPILATION—SUPPLEMENT I
tions for the disposal or storage of packages and containers of pesti-
cides 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 or TRANSPORTATION.—The Administrator
shall provide advice and assistance to the Secretary of Transporta-
tion with respect to his functions relating to the transportation of
hazardous materials under the Department of Transportation Act (49
U.S.C. 1657), the Transportation of Explosives Act (18 U.S.C.
831-835), 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).
"SEC. 20. RESEARCH AND MONITORING.
"(a) BESEARCH.—The Administrator shall undertake research,
including research by grant or contract with other Federal agencies,
universities, or others as may be necessary to carry out the purposes
of this Act, and he shall give priority to research to develop biolog-
ically 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
formulate 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 activities shall be carried out in cooperation with other
Federal, State, and local agencies.
"SEC. 21. SOLICITATION OF COMMENTS; NOTICE OF PUBLIC HEARINGS.
"(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 cancel-
lation 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 per-
sons as he deems proper.
"(c) In connection with all public hearings under this Act the
Administrator shall publish timely notice of such hearings in the
Federal Eegister.
"SEC. 22. DELEGATION AND COOPERATION.
"(a) DELEGATION.—All authority vested in the Administrator by
virtue of the provisions of this Act may with like force and effect be
executed by such employees of the Environmental Protection Agency
as the Administrator mav designate for the purpose.
"(b) COOPERATION.—The Administrator shall cooperate with the
Department of Agriculture, any other Federal agency, and any appro-
priate agency of any State or any political subdivision thereof, in
carrying out the provisions of this Act, and in securing uniformity
of regulations.
"SEC. 23. STATE COOPERATION, AID, AND TRAINING.
"(a) COOPERATIVE AGREEMENTS.—The Administrator is authorized
to enter into cooperative agreements with States—
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1859
"(1) to delegate to any State the authority to cooperate in the
enforcement of the Act through the use of its personnel or facili-
ties, to train personnel of the State to cooperate in the enforce-
ment 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, in cooperation with the Secretary of
Agriculture, utilize the services of the Cooperative State Extension
Services for informing farmers of accepted uses and other regulations
made pursuant to this Act.
"SEC. 24. AUTHORITY OF 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 require-
ments for labeling and packaging in addition to or different from those
required pursuant to this Act; and
"(c) a State may provide registration for pesticides formulated for
distribution and use within that State to meet special local needs if that
State is certified by the Administrator as capable of exercising ade-
quate controls to assure that such registration will be in accord with
the purposes of this Act and if registration for such use has not previ-
ously 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.
"SEC. 25. AUTHORITY OF ADMINISTRATOR.
"(a) REGULATIONS.—The Administrator is authorized to prescribe
regulations to carry out the provisions of this Act. Such regulations
shall take into account the difference in concept and usage between
various classes of pesticides.
"(b) EXEMPTION OF PESTICIDES.—The Administrator mav exempt
from the requirements of this Act by regulation any pesticide which
he 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 Administrator, after notice and
opportunity for hearing, is authorized—
"(1) to declare a pest any form of plant or animal life (other
than man and other than bacteria, virus, and other micro-orga-
nisms on or in living man or other living animals) which is
injurious to health or the environment:
"(2) to determine any pesticide which contains any substance
or substances in quantities highly toxic to man;
" (3) to establish standards (which shall be consistent with those
established under the authority of the Poison Prevention Pack-
aging 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
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1860 LEGAL COMPILATION—SUPPLEMENT I
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;
''(5) to prescribe regulations requiring any pesticide to be col-
ored or discolored if he determines that such requirement is
feasible and is necessary for the protection of health and the
environment; and
''(6) to determine and establish suitable names to be used in
the ingredient statement.
"SEC. 26. SEVERABILITY.
"If any provision of this Act or the application thereof to any
person or circumstance is held invalid, the 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.
"SEC. 27. AUTHORIZATION FOR APPROPRIATIONS.
"There is authorized to be appropriated such sums as may be
necessary to carry out the provisions of this Act for each of the fiscal
years ending 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."
AMENDMENTS TO OTHER ACTS
SEC. 3. The following Acts are amended by striking out the terms
"economic poisons" and "an economic poison" wherever they appear
and inserting in lieu thereof "pesticides" and "a pesticide"
respectively:
(1) The Federal Hazardous Substances Act, as amended (15
U.S.C. 1261 etseq.);
(2) The Poison Prevention Packaging Act, as amended (15
U.S.C. 1471 etseq.); and
(3) The Federal Food, Drug, and Cosmetic Act, as amended
(21 U.S.C. 301 etseq.).
EFFECTIVE DATES OF PROVISIONS OF ACT
SEC. 4. (a) Except as otherwise provided in the Federal Insecticide,
Fungicide, and Eodenticide Act, as amended by this Act, and as other-
wise provided by this section, the amendments made by this Act shall
take effect at the close of the date of the enactment of this Act,
provided if regulations are necessary for the implementation of any
provision that becomes effective on the date of enactment, such regula-
tions shall be promulgated and shall become effective within 90 days
from the date of enactment of this Act.
(b) The provisions of the Federal Insecticido, Fungicide, and
Eodenticide Act and the regulations thereunder as such existed prior
to the enactment of this Act shall remain in effect until superseded by
the amendments made by this Act and regulations thereunder:
Provided, That all provisions made by these amendments and all
regulations thereunder shall be effective within four years after the
enactment of this Act.
(c) (1) Two years after the enactment of this Act the Administrator
shall have promulgated regulations providing for the registration and
[p. 26]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1861
classification of pesticides under the provisions of this Act and there-
after shall register all new applications under such provisions.
(2) After two years but within four years after the enactment of
this Act the Administrator shall register and reclassify pesticides
registered under the provisions of the Federal Insecticide, Fungicide,
and Rodenticide Act prior to the effective date of the regulations
promulgated under subsection (c) (1).
(3) Any requirements that a pesticide be registered for use only
by a certified applicator shall not be effective until four years from
the date of enactment of this Act.
(4) A period of four years from date of enactment shall be provided
for certification of applicators.
(A) One year after the enactment of this Act the Administrator
shall have prescribed the standards for the certification of
applicators.
(B) Within three years after the enactment of this Act each
State desiring to certify applicators shall submit a State plan
to the Administrator for the purpose provided by section 4(b).
(C) As promptly as possible but in no event more than one
year after submission of a State plan, the Administrator shall
approve the State plan or disapprove it and indicate the reasons
for disapproval. Consideration of plans resubmitted by States
shall be expedited.
(5) One year after the enactment of this Act the Administrator shall
have promulgated and shall make effective regulations relating to the
registration of establishments, permits for experimental use, and the
keeping of books and records under the provisions of this Act.
(d) No person shall be subject to any criminal or civil penalty
imposed by the Federal Insecticide. Fungicide, and Rodenticide Act,
as amended by this Act, for any act (or failure to act) occurring before
the expiration of 60 days after the Administrator has published effec-
tive regulations in the Federal Register and taken such other action as
may be necessary to permit compliance with the provisions under which
the penalty is to be imposed.
(e) For purposes of determining any criminal or civil penalty or
liability to any third person in respect of any act or omission occurring
before the expiration of the periods referred to in this section, the
Federal Insecticide, Fungicide, and Rodenticide Act shall be treated
as continuing in effect as if this Act had not been enacted.
Approved October 21, 197Z.
LEGISLATIVE HISTORY;
HOUSE REPORTS: No. 92-511 (Com. on Agriculture) and No. 92-1540
(Com, of Conference).
SENATE REPORT9:No. 92-838 (Comn. on Agriculture and Forestry) and
NO. 92-970 (Conn, on Conmeroe).
CONGRESSIONAL RECORD:
Vol. 117 (1971)J Nov. 8,9, considered and passed House.
Vol. 118 (1972): Sept.26, considered and passed Senate, amended.
Oct. 5, Senate agreed to oonfer-enoe report.
Oct. 12, House agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS:
Vol. 8, No. 44 (1972): Oct. 21, Presidential statement.
[p. 271
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1862 LEGAL COMPILATION—SUPPLEMENT I
l.lk(l) HOUSE COMMITTEE ON AGRICULTURE
H.R. REP. No. 92-511, 92d Cong., 1st Sess. (1971)
FEDERAL ENVIRONMENTAL PESTICIDE CONTROL ACT
OF 1971
SEPTEMBER 25, 1971.—Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. POAGE, from the Committee on Agriculture,
submitted the following
REPORT
together with
ADDITIONAL VIEWS
[To accompany H.B. 10720]
The Committee on Agriculture, to whom was referred the bill
(H.R. 10729) to amend the Federal Insecticide, Fungicide, and
Rodenticide Act, and forfother purposes, having considered the same,
report favorably thereon without amendment and recommend that
the bill do pass.
BRIEF SUMMARY
H.R. 10729 contains four sections.
The first section of the bill cites this legislation as the "Federal En-
vironmental Pesticide Control Act of 1971."
Section 2 of the bill contains a series of amendments to the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA) which com-
pletely rewrite that statute. The thrust of these amendments is to
change FIFRA from a labeling law into a comprehensive regulatory
statute that will henceforth more carefully control the manufacture,
distribution, and use of pesticides.
In so changing old FIFRA the new statute would contain the fol-
lowing main provisions:
1. It establishes a coordinated Federal-State administrative system
to carry out the new program. The States are given prime responsi-
bility for the certification and supervision of pesticide applicators.
The Federal Government sets the program standards the States must
meet. State authority to change Federal labeling and packaging is
[p- 1]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1863
completely preempted, and State authority to further regulate "gen-
eral use" pesticides is partially preempted.
2. The administrative procedures for pesticide registration, cancel-
lation, or suspension are rewritten. Under the new program the Na-
tional Academy of Sciences can be called upon by EPA to render
opinions on relevant scientific issues that arise in the hearing process.
3. Pesticides will be classed into two categories—"General Use"
and the more dangerous "Restricted Use." The latter can be applied
by or under the direct supervision of licensed pesticide applicators
or under other restrictions set by EPA.
4. There will be two types of pesticide applicators—Commercial
and Private. The bulk of the private pesticide applicators are expected
to be farmers. All applicators will be licensed and will be required to
exhibit a satisfactory knowledge of and ability to safely apply
pesticides.
5. The Administrator of EPA is given authority to issue experi-
mental permits for the safe testing of new compounds.
6. EPA is given enforcement powers to (a) issue warnings, (b)
bring court injunctions, (c) seize pesticides or devices, (d) impose
civil penalties, and (e) bring criminal charges when such action is
warranted.
7. The Administrator is given new powers to examine books and
records, inspect the premises, and take samples of pesticides in the
possession of persons covered by the Act.
8. Trade secrets and certain scientific data submitted in support
of registrations are either kept confidential or not made available to
support registration applications by other persons.
9. Indemnities must be paid by EPA under certain circumstances
and the option to turn over certain condemned pesticides to EPA
is provided to pesticide owners.
10. Judicial review of administrative actions guaranteed.
11. New authority concerning the importation or exportation of
pesticides and devices is provided. (The bill does not contain any
restrictions on the importation of commodities from foreign nations
having pesticide programs different than those in the United States.)
12. The President is given limited authority to exempt by Executive
Order Federal agencies from all or any of the provisions of the Act.
13. EPA is given authority to do expanded research and monitoring
in order to find new and better methods and materials for controlling
pests.
14. The bill creates the mechanics for soliciting and evaluating
public comments about the new program.
15. FIFRA is continued as a permanent law, but the authorization
for appropriations will expire on June 30, 1974.
16. General authority is granted to EPA to write regulations to
carry out the Act and recognize the use of specialty chemicals.
Section S of the bill contains conforming amendments to three other
laws changing the term "economic poison" to "pesticide."
Section 4 of the bill sets forth various effective dates in order to put
the new program into operation as quickly and as effectivelv as possible.
[p. 2]
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1864 LEGAL COMPILATION—SUPPLEMENT I
THE NEED FOE LEGISLATION
The Committee is of course aware of criticism in certain circles to
the effect that agriculture is some sort of a major villain on the en-
vironmental pollution scene. There is a clear implication by some that
if farmers would only return to the ways of the "good old days"
many environmental problems would no longer exist.
The Committee realizes that the agricultural community must
shoulder its share of the responsibility for a better environment, but
on the other hand it should be recognized that many farmers and
ranchers have long been in the forefront of the battle for a better
earth.
Common sense dictates that a farmer would be careful in handling
materials which, if improperly used, could injure himself, his family,
and the premises upon which he and his family live and work. Beyond
that obvious observation, though, the record of conservation by farm
people, both through and outside government, should not only be
recognized but applauded.
Some people might better devote increased efforts toward the
abatement of Federal, State, municipal and industrial waste rather
than to idly point a finger at the farmer.
In regard to this point, the recent remarks of the Nobel Prize
winner, Dr. Norman Bourloug, seem appropriate: *
"Today, everybody talks about the environment. This is also
nothing but one more example oj a different aspect of this pop-
ulation problem.
'I am fearful that there are some purists—and I started out
in Forestry and worked in one way or another in ecology from
the whole thing of forest protection and watershed protection and
wildlife, and I feel I know something about this and yet I'm
horrined by what I read and listen to on the radio and television
about some of the theories of the purists—who are suddenly
going to shut off the use of chemical products that we need to
continue the improvement of our agricultural production, and I
say it broadly—fertilizers and pesticides. Sometimes we have
had accidents with pesticides, but think of the good they have
done. Without them where would our agricultural production be
today?
"We need common sense mixed with these things. But common
sense seems to, all too often, go out the window.
"You see in this world of tomorrow, those purists—environ-
mental purists—who would deny the use of chemical fetHizers
because we are contaminating our waters—and God knows we
have done this to our lakes, rivers, and streams—and I'm sure
we can do a lot to correct it.
"But it all doesn't come from chemical fertilizers. What about
the sewaffe and industrial wastes? What about the pollution of
the environment—the smog, industrial and automotive?
"We have to and must do something about it because of the way
this is all evolving, and I'm sure we can, but I refuse to be
stampeded into saying we will discontinue the use oj chemical
fertilizers in the developing world because it is to commit those
1 Remarks at the 9th Federal Reserve District Farm Forum in Minneapolis, Minnesota, on March 3,1971
[p. 3]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1865
hungry people to starvation. Is this the way to build a better
world?"
Even though the Committee recognizes that farmers and ranchers
have not been pollution villains, this legislation has been developed
in an effort to improve the quality of living for all Americans while
recognizing the basic needs of a modern and efficient agricultural
industry in this Nation.
The Committee also recognizes that during recent years there has
been an increasing public concern over the uses and application of
pesticides. This rising concern has reflected expanded interest in en-
vironmental protection by many citizens. This bill is in part a result
of the growing awareness of possible undesirable effects of pesticides
and a realization of the necessity of considering these disadvantages
along with the beneficial effects realized through protection of public
health and enhancement of agricultural productivity.
The basic law presently regulating pesticides—or "economic
poisons" as they are presently known—is the Federal Insecticide,
Fungicide, and Rodenticide Act of 1947, as amended, supplemented by
sections of the Food, Drug, and Cosmetic Act concerning possible
toxic residues left on foodstuffs. The Committee feels that this basic
law regulating pesticides in the United States needs to be thoroughly
overhauled in order to better serve the Nation in the light of these
changing situations.
The machinery for managing these chemical compounds which are
being introduced daily into the environment needs updating to
properly balance all of the many factors interrelated with our current
management of pesticides.
The Committee acknowledges that the wise use of pesticides has
saved millions of lives by controlling insect vectors of diseases such
as malaria and typhus, and the Nation as a whole has benefited
tremendously from the efficiency of insect and weed control made
possible by agricultural applications of pesticides of various sorts.
But on the other hand, there is evidence of diminished effectiveness
of control and increased undesirable effects on non-target and beneficial
organisms resulting from indiscriminate use and abuse of invaluable
pesticides.
The Committee found the greatest need for revision of existing law
to be in the areas of strengthening regulatory controls on the uses
and users of pesticides, speeding up procedures for barring pesticides
found to be undesirable; streamlining procedures for making valuable
new control measures, procedures, and materials broadly available;
strengthening enforcement procedures to protect against misuse of
these biologically effective materials; and creating an administrative
and legal framework under which continued research can produce
more knowledge about better ways to use existing pesticides as well
as developing alternative materials and methods of pest control.
The Committee has worked on each of these problems. H.R. 10729
imposes new controls and sanctions on both the uses and the users of
pesticides. Old FIFRA is changed from a labeling to a regulatory
program. New tools for restricting the introduction and dissemination
of pesticides into the environment are given to the EPA. Continued
and expanded research, both private and public, is encouraged.
[p. 4]
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1866 LEGAL COMPILATION—SUPPLEMENT I
A SEARCH FOR BALANCE
As the Committee labored through the months of hearings and
discussions, one central legislative philosophy developed .... the
theme of a "search for balance."
Expert witness articulated divergent opinions. Individual members
of the Committee expressed and debated diverse views. The Committee
solicited advice from environmentalists, from farm groups, from
State and Federal officials, from the chemical industry, and from the
public. These views too were panoramic.
Sifting through the spectrum of opinion, the search for a reasonable
balance led the Committee to the legislative concepts of H.R. 10729
which recognize both the benefit and risk of these materials in society;
to policies which call for the continued but more carefully controlled
use of pesticides; to programs which will mesh, not clash, with the
States; and to a philosophy which calls for those of divergent view-
points to each try to see the problem of environmental pesticide
control through the eyes of those with whom he may disagree.
In summary H.R. 10729 is not a "farmer's bill." It's not a "man-
ufacturer's bill." Neither is it an "environmentalist's bill." It is
rather a mixture of each, a composite of all, and the manifestation
of a sincere effort by the Committee on Agriculture to meet the need
for reasoned progress in this important area of public concern.
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 supply 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.
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 for export are now produced by
fewer than 5 percent of the population. r -.
[p. oj
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1867
SCOPE OP PRESENT PROGRAM
Under present law more than 60,000 products made from one or more
of 900 chemical compounds are currently registered. Of these, farmers
use pesticides to fight harmful weeds, insects, plant diseases, and other
pests attacking their livestock and food crops; plant regulators to
produce seedless fruits and vegetables and to prevent premature
dropping of fruit; and plant defoliants and desiccants to cause leaves
to drop or plants to mature uniformly so that mechanical harvesting
can be used more efficiently.
Althouth farmers use by far the largest volume of the pesticides
produced in this country, approximately half of the pesticide products
registered by EPA are designed for nonfarm uses around or in homes,
apartment buildings, and industrial plants.
Industrial uses of chemical products registered as pesticides are
quite varied. For example, manufacturers use chemical pesticides
against fungi in literally thousands of products ranging from asphalt,
paint, and plastics to jet fuel. Other pesticides are used by industry to
make such products longer lasting and more attractive to consumers.
All sterilizing, disinfecting, sanitizing, gormicidal, and bacteria
killing chemicals—except those sold exclusively for use on or in the
living body of man or other animals—are classified as "pesticides"
and must be registered. These include products to sterilize and
disinfect surgical and dental instruments, barber shop and beauty
parlor instruments and equipment, dairy equipment, and such
restaurant equipment as dishes and glasses.
Homeowners and apartment dwellers alike use pesticides practically
every day. The housewife fights such insects as roaches and ants with
pesticides; she combats mildew and other fungi in clothing with
fungicides; and she applies detergent-sanitizers in her laundry and
antibacterial sprays in her bathrooms and kitchens to keep them
sanitary and clean smelling.
Homeowners regularly use insecticides on their lawns, rose bushes,
and other ornamentals to protect them against insects. They also
apply fungicides on lawns to control grass diseases and herbicides on
lawns, driveways, and other areas to control weeds. All of these types
of chemicals are registered under present law and will be strictly
regulated under the provisions of H.R. 10729.
PUBLIC HEALTH BENEFITS
In addition to making an invaluable contribution to efficient food
production, pesticides have saved millions of lives as a result of their
widespread use to control or eradicate pest carried diseases such as
malaria, typhus, sleeping sickness and yellow fever. A widely recog-
nized scientist believes that the much maligned pesticide DDT has
saved more lives than all the anti-biotics combined.1
CONSUMER BENEFIT
The great forward strides in production efficiency made possible
by the use of chemical pesticides in combination with other improved
1 See Page 469, Printed Hearings Serial 92-A, Remarks of Prof. Robert White-Stevens, Bureau of Con-
servation and Environmental Science, Rutgeis University, the State University of New Jersey, New
Brunswick, New Jersey, at the 52nd Annual Meeting of the American Farm Bureau Federation, in Houston,
Texas, December 7, 1970. r />n
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1868 LEGAL COMPILATION—SUPPLEMENT I
agricultural practices makes it possible for consumers to obtain their
domestically produced foods with a smaller and smaller share of their
spendable income.
It is commonly reported that consumers, in 1971, are spending 16.5
percent of their disposable income for food. For their production
efforts, farmers receive less than a third of these retail-food expendi-
tures. About 5 percent of consumers' disposable income goes to farmers,
perhaps 2 percent goes for imported food and approximately 9.5
percent is required to pay the processing and marketing charges.
There are few, if any, countries in the world where suoh a small
percentage of consumers' expenditures is required to purchase the farm
supplied fodds. There also are few countries which use as much
chemical pesticides as American farmers.
CURRENT PRODUCTION AND SALES OP PESTICIDES AND RELATED
PRODUCTS
For the purposes of the following Table 1, the term "pesticides and
related products" includes fungicides, herbicides, insecticides, rodenti-
cides, and related products such as plant hormones, seed disinfectants,
soil conditioners, soil fumigants and synergists. The following data
also reflects 100-percent active material and excludes such materials as
diluents, emulsifiers, and wetting agents.
U.S. production of pesticides and related products in 1970 amounted
to 1,034 million pounds—6.4 percent less than the 1,104 million pounds
reported for 1969. Sales in 1970 were 881 million pounds, valued at
$870 million, compared with 929 million pounds, valued at $851
million, in 1969.
The output of cyclic pesticides and related products amounted to
727 million pounds in 1970—about 11.3 percent less than the 819
million pounds produced in 1969. Sales in 1970 were 602 million pounds,
valued at $702 million, compared with 666 million pounds, valued at
$697 million, in 1969. The output of DDT amounted to 59 million
pounds in 1970—the lowest since 1949. Production of acyclic pesticides
and related products, increased in 1970 amounting to 307 million
pounds, compared with the 285 million pounds reported for 1969. Sales
in 1970 were 279 million pounds an increase of about 6.3 percent as
compared with 263 million pounds in 1969; the value of sales increased
to $169 million in 1970, compared with $154 million in 1969—a gain of
9.6 percent.
[p. T]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1869
SYNTHETIC ORGANIC CHEMICALS, 1970
TABLE l.-PESTICIDES AND RELATED PRODUCTS: U.S. PRODUCTION AND SALES, 1970
[Listed below are all pesticides and related products for which any reported data on production or sales may be published
(Leaders are used where the reported data are accepted in confidence and may not be published or where no data
were reported.) Table 2 lists all pesticides and related products for which data on] production or sales were reported
and identifies the manufacturers of each]
Product
Grand total
Benzenotd
Nonbenzenoid
PESTICIDES AND RELATED PRODUCTS. CYCLIC
Total
Fungicides, total .
3,5-Dimethy!-l,3,5-2H-tetrahydrothiadiazme-2-thione(DlVITT)
Mercury fungicides total
Phenylmercuric acetate (PMA)
Other mercury fungicides
Naphthemc acid, copper salt
Pentachlorophenol (PCP).
8-Qmnolmol (8-Hydroxyquinolme), copper salt
All other cyclic fungicides 2 _ _
Herbicidesand plant hormones, total
l,2-Dihydropyridazine-3,6-dione(Maleichydrazide)(MH)
Phenoxyacetic acid derivatives:
2 4-Dichlorophenoxyacetic acid (2,4-D)
1 4-Dichlorophenoxyacetic acid esters and salts, total
2,4-Dichlorophenoxyacetic acid n-butyl ester
2,4-Dichlorophenoxyacetic acid, sec-butyl ester
2,4-Dichlorophenoxyacetic acid, dimethylamine salt
2,4-Dichlorophenoxyaceticacid, iso-octyl ester .
2,4-Dichlorophenoxyacetic acid, isopropyl ester
Alt other (2 4-D) esters and salts
2 4 5-Trichlorophenoxyacetic acid, iso-octy! ester
AH other(2 4 5-T) esters and salts
2-(2,4,5-Trichlorophenoxy) propionicacid(Silvex), and esters ..
aBis (p-chlorophenyl)-/3,(3 & -trichloroethane (DDT)
0 0-Diethyl 0-p-nitrophenyyl phosphorothioate (Parathion) .
0,0-Dimethyl 0-p-mtrophenyl phosphorothioate (Methyl parathion).
All other insecticides and rodenticides6 - -
PESTICIDES AND RELATED PRODUCTS, ACYCLIC
Total...
All other acyclic fungicides *
All other acyclic herbicides10 -
Insecticides, rodenticides, and soil conditioners and fumigants,
total ---
See footnotes at end of table, p. 9.
Production
(1,000
pounds)
1,034,075
579, 414
454, 661
727, 133
95,762
1,218
1,571
457
1,114
1,730
47, 170
71
44, 002
330, 326
3,271
43, 675
878
6,740
19, 499
9,989
1,001
12, 335
2,142 .
10, 193
2,016
231, 021
301,045
88, 641
59,316
77,236
15, 259
41,353
20, 624
75,852
306,942
44,397
39,381
5,016
73, 458
30,454
43, 004
189, 087
Quantity
(1,000
pounds)
880,914
497,365
383, 549
601,755
83,465
1,117
1,625
301
1,324
1,795
45, 832
68
33,028
246, 534
3,096
15, 783
43, 917
1,454
3,931
19, 480
7,387
1,078
10, 587
7,214
7,214
1,407
175, 117
271, 756
84, 225
34,019
75, 055
15,504
39, 869
19,682
78, 457
279, 159
45, 394
40, 013
5,381
61, 578
24, 521
37, 057
172, 187
Sales
Value
(1,000
dollars)
870, 314
513,087
357,227
701,558
39,023
631
5,902
2,003
3,899
529
6,371
120
25, 470
449, 026
5,247
4,136
13, 140
479
1,023
5,350
2,474
324
3,490
5,347
5,347
1,474
419, 682
213, 509
43,159
5,351
78, 204
7,672
19, 173
51,359
86, 795
168, 756
26, 155
18, 998
7,157
48,928
8,028
40,900
93, 673
Unit
value i
(per
pound)
$0.99
1.03
.93
1.17
.47
.56
3.63
6.65
2.94
.29
.14
1.76
.77
1.82
1.69
.26
.30
.33
.26
.27
.33
.30
.33
.74
.74
1.05'
2.40
.79
.51
.16
1.04
.49
.48
2.61
1.11
.60
.58
.47
1.33
.79
.33
1.10
.54
[p. 8]
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1870 LEGAL COMPILATION—SUPPLEMENT I
SYNTHETIC ORGANIC CHEMICALS, 1970-Contmued
TABLE 1.—PESTICIDES AND RELATED PRODUCTS: U.S. PRODUCTION AND SALES, 1970—Continued
[Listed below are all pesticides and related products for which any reported data on production or sales may be published,
(Leaders are used where the reported data are accepted in confidence and may not be published or where no data
were reported.) Table 2 lists all pesticides and related products for which data on production or sales were reported
and identifies the manufacturers of each)
Sales
Unit
Production Quantity Value value1
(1,000 (1,000 (1,000 (per
Product pounds) pounds) dollars) pound)
PESTICIDES AND RELATED PRODUCTS, ACYCLIC—Continued
Methyl bromide (Bromoethane) 21,047 21,790 8,764 $0.40
Organophosphprus insecticides » 55,260 _ __
All other acyclic insecticides (including sales of acyclic organophosphorus
insecticides), rodenticides, and soil conditioners and fumigants 12 is... 112,780 150,397 84,909 .56
1 Calculated from rounded figures.
2 Includes benomyl, captafol, captan, dmocap, folpet, pentachloromtrobenzene, sodium pentachlorophenate, tri- and
tetra-chlorophenols, (including 2,4,5-trichlorophenol and its salts) and others.
3 Includes acetamlide compounds, amiben esters and salts, farban, benefin, bensulide, other 2,4-D esters and salts
(production only), dicamba, dimethylurea compounds, dimtrophenol compounds, endothal, isopropyl phenylcarbamates
(IPC and CIPC), MCPA, mollmate, NPA, picloram, propanil, tnazmes, tnfluralin, uracils, and others.
4 Includes aldrin, chlordan, dieldnn, endrm, heptachlor, and toxaphene.
' Includes azinphosmethyl, carbophenothion, coumaphos, diazmon, dioxatnion, fensulfothion, ronnel, and other phos-
phorothioates and phosphorodithioates, and others.
'' Includes carbofuran, chlorobenzilate, dicofol, endosulfan, methoxychlor, and other chlorinated insecticides, carbaryl,
insect attractants, DEET and other insect repellents, lindane, small amounts of rodenticides, piperonyl butoxide and other
synergists, and others.
7 Includes ferbam, maneb, metham, nabam, and zineb, plus the remaining dithiocarbamates which are used chiefly as
pesticides.
1 Includes dodme, mercury compounds, PETD, and others.
9 Includes the mono- and di-sodium salts, and the dodecyl- and octyl-ammonium salts of methanearsomc acid.
10 Includes cacodylic acid, CDAA, dalapon, thiocarbamate, thiolcarbamate, and organophosphorus herbicides, sodium
TCA, and others.
11 Includes DDVP, dimethoate, disulfpton, ethion, malathion, monocrotopnos, naled, phorate, and other organophos-
phorus insecticides. Sales are included in the data for all other acyclic insecticides.
12 Includes DBCP, soil conditioners and fumigants, methaldehyde (which is a molluscicide), small quantities of rodenti-
cides, and others.
13 Sales of acyclic organophosphorus insecticides are included with "All other acyclic insecticides" in order to establish
an all other acyclic insecticide total without disclosing the operations of individual companies.
Source: U S. Tariff Commission, Preliminary Report on U.S. Production and Sales of Pesticides and Related Products—
1970, issued September 1971.
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 pesti-
cides 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. [p gj
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1871
FIFKA 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 in-
creasingly 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 foodstuffs.
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 amend-
ment 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 Administra-
tion 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. Nemato-
cides 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.
[p. 10]
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1872 LEGAL COMPILATION SUPPLEMENT I
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 Com-
mittee 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. Eequire each pesticide to carry a license number identifica-
tion, and
3. Include fish and wildlife as useful vertebrates and in verte-
brates 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, elimi-
nated 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 regula-
tion 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 hearings, 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 environ-
mental 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.
[p. 11]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1873
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 became the basis for this bill. The Administration
proposal was introduced by Mr. Poage, the Committee Chairman,
and Mr. Belcher, the senior Minority member, as H.R. 4152 on
February 10, 1971.
H.R. 10729 COMPARED TO THE PRESENT ACT
The amendments in H.R. 10729 to the Federal Insecticide, Rodenti-
cide, and Fungicide Act, as amended, which is a registration and
labeling law, would extend the regulation of pesticides to their manu-
facture and use, and Federal regulatory authorities would apply
throughout the States, not just to the interstate commerce of pesticides.
Under H.R. 10729 registration of pesticides producing establish-
ments is required, and registration of a pesticide entails designation
of a use classification carrying concomitant use control requirements.
Two classifications are contemplated, general use and restricted use.
The former is regulated by the registration and labeling process as
under present FIFRA; the latter is also regulated by requiring that
users be certified or licensed, or by applying other restrictions.
When a pesticides establishment is registered, certain production
information must be submitted and kept current. No such registration
is required under the present FIFRA.
Upon initial registration of a pesticide the producer must during the
five-year registration period inform the Administrator of any findings
relating to adverse environmental effects at any time.
Research and monitoring are authorized, including a national
pesticides monitoring plan and program, and provision is made for
permits for the experimental use of unregistered pesticides, results to
be reported to the Administrator prior to registration.
The requirements under present FIFRA for submission of data for
registration and the keeping of books and records available for in-
spection are continued.
Enforcement is strengthened through inspection of establishments
as well as books and records, both routine and under warrant, and the
taking of samples. Under present FIFRA only inspection of books
and records was authorized.
The coverage of unlawful acts is extended beyond present FIFRA
to cover, for example, misuse of a pesticide and failure to register an
establishment.
Civil penalties of $1,000 for private applicators and $5,000 for
others assessed by the Administrator are provided as well as criminal
penalties, which are increased from $1,000 to $25,000 for persons other
than private applicators.
IP- 12 J
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1874 LEGAL COMPILATION—SUPPLEMENT I
"Stop sale, use, or removal" orders are available when the Admin-
istrator believes a violation of tbe Act has occurred, or when a suspen-
sion or final cancellation order has been issued. Present FIFRA has
no such provision, but does authorize seizure, as does H.R. 10729.
Aid to States, for enforcement and applicator certification programs
is available. States are authorized to further restrict the sale or use of
pesticides, and to assist the Administrator in the intrastate registra-
tion of pesticides for local needs. Such authorities are not presently
contained in present FIFRA.
The amendments provide other new authorities. The Administrator
is authorized to solicit public comments on actions taken under the
Act. Indemnities for losses suffered by owners of a pesticide subject to
suspension and cancellation are provided. Disposal of such pesticides
by the Administrator is required upon request. Subpoena of witnesses
to a public hearing is authorized.
Referral to a scientific review committee of issues of scientific fact
arising during an administrative action hearing is provided; in present
FIFRA such referral could be separate from and in addition to the
public hearing.
The term "pesticide" replaces "economic poison," and has the same
coverage.
COMMITTEE CONSIDERATION
The Committee held 17 public hearings on H.R. 4152 and similar
bills beginning on February 10 and ending on March 25, 1971.
Thereafter the Committee prepared and considered three separate
Committee Prints and, after holding 19 closed business meetings,
ordered H.R. 10729 reported to the House in the presence of a
quorum by a division vote of 13-6 on September 17, 1971.
In its consideration of this legislation, the Committee discussed
several matters relating to the construction and intent of certain
language in the bill as follows:
1. Committee jurisdiction
In the early discussions of this legislation there was some question
raised about the jurisdiction of the Committee on Agriculture to
consider legislation of this nature. The Committee feels strongly that
Rule XI of the House and prior precedent clearly vests this Committee
with legislative jurisdiction over all pesticides. Accordingly, the
Committee has reasserted its clear jurisdictional mandate by con-
ducting hearings on H.R. 4152 which proposed to repeal the Federal
Insecticide, Fungicide, and Rodenticide Act and by reporting H.R.
10729 which will be cited as the "Federal Environmental Pesticide
Control Act of 1971" and which substantially rewrites, but does not
repeal, FIFRA.
2. Statement of findings
The Committee did not include in H.R. 10729 the statement of
legislative findings as originally proposed in H.R. 4152. The Com-
mittee did not take this action in derogation of the basic intent of
H.R. 4152, but did so to avoid cluttering the final statute with
language which the Committee feels is interpretive of the other
provisions of this legislation. It is therefore the Committee's intent
that: [p. 13]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1875
The Congress hereby finds that pesticides are valuable to our
Nation's agricultural production and to the protection of man and
the environment from insects, rodents, weeds, and other forms of life
which may be pests; but it is essential to the public health and welfare
that they be regulated closely to prevent adverse effects on human
life and the environment, including pollution of interstate and navi-
gable waters; that pesticides are used throughout the Nation and the
major portion thereof moves in interstate or foreign commerce; that
it is essential in the public interest to protect the public health and
welfare from adverse effects of pesticide residues on food which is
consumed throughout the Nation and which moves in interstate or
foreign commerce; and that regulation by the Administrator and co-
operation by the States and other jurisdictions as contemplated by
this Act are appropriate to prevent and eliminate burdens upon
interstate or foreign commerce, to effectively regulate such commerce,
and to protect the public health and welfare and the environment.
3. Benefit Risk Concept
In the consideration of this legislation the Committee labored for
many days over the term "Substantial Adverse Effects on the En-
vironment." In adopting the definition set forth in section 2(bb),
the Committee seeks to articulate the concept that the benefits of
using pesticides should be balanced against the risk of using them.
The Committee considered, but rejected, language which would
have required the consideration of "alternative means of control."
In rejecting this language, the Committee felt that the economic and
practical realities of alternative means of control would be a natural
consideration of the Administrator and therefore it was not necessary
to include this specific phrase.
4- Essentiality
In the course of considering this legislation the Committee ques-
tioned a criterion that had been adopted by EPA for limiting per-
sistent pesticides. This procedure limited pesticides, shown to be
persistent, for "essential uses" only. This "essential use doctrine"
was referred to in the Jensen and Mrak studies and eventually was
incorporated in a series of communications within the Departments of
the Federal Executive Branch and was actually used as a criterion in
determining whether or not the pesticide may retain its registration.
The growth of this doctrine assumed a plateau of importance.
However, EPA, when testifying during the Committee's hearings,
did not raise the criterion of limiting pesticides for essential uses
only. In researching the criterion, the Committee found no legislative
or regulatory authority for the application of the doctrine.
The Committee felt that continued use of this disputed procedure
would place all interested parties involved at a disadvantage. The
Agency agreed, and the Committee therefore adopted the language
of the last sentence of section 3(c)(5).
5. Scientific review
One main purpose of the langua^. in section 6(d) is to avoid frivolous
and non-germane issues from burdening the hearing and review process.
While the language gives the hearing examiner discretion, that dis-
cretion is tempered by the intent of this language to require all relevant
[p. 14]
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1876 LEGAL COMPILATION—SUPPLEMENT I
and material scientific issues to be referred to and resolved by the
National Academy of Sciences.
6. Seaweed and other organic materials
The Committee noted with interest the testimony regarding seaweed
and the extensive research conducted on the Norwegian variety, par-
ticularly at Clemson University, South Carolina. It is not the Com-
mittee's intent that natural, organic products of a non-toxic and non-
poisonous nature normally be required to be registered. It is, however,
conceivable that certain claims made in the labeling and advertisement
may be such as to technically require registration under the Act. In
such cases, the Committee emphasizes the need to apply the rules of
common sense. The Committee urges the Administrator to consider the
scientific data concerning a product which has been extensively re-
searched (for example, Norwegian Ascophyllum Nodosum at Clemson's
College of Agriculture and Biological Sciences for some 10 years) as
being sufficient to constitute the back-up research which may be
required by the Administrator in the registration application.
7. Removal of "Use by Permit" category
H. K. 4152, the Administration's legislative proposal, requested
authority to designate a pesticide in one of three classifications namely
"for general use", "for restricted use", or "for use by permit only".
Pesticides designated for "use by permit only" would have required
"approval in writing for the amount and type of article for each par-
ticular application" of an "approved pest management consultant"
licensed by a State. The Committee gave this proposal of a third classi-
fication and requirement for pest management consultant very careful
consideration. The Committee found this proposal would place on the
Administrator and users an unworkable and costly burden far in excess
of need or benefits gained by such regulatory machinery.
H. E. 10729 requires the Administrator to designate registered
pesticides "for general use" or "for restricted use". The legislation
grants no authority for a third classification nor does it grant any
authority to the Administrator to establish by regulation or agreement
with a State the position or similar function of a licensed or approved
pest management consultant.
The bill also makes provisions for certifying pesticide applicators
as competent to safely and properly use the pesticides they will
apply. The Committee intends that EPA, by regulation, establish
fair hearing procedures for the suspension or revocation of licenses
as well.
The bill also makes provision for requiring restricted use pesticides
to be applied only by such a certified pesticide applicator (or a person
under his direct supervision) or subject to such other restrictions as
the Administrator may determine as 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 similar forms of approval may be required.
[p. 15]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1877
Among other advantages, this system may permit certain pesticides
to be used during the first years after enactment of the bill when a
sufficient number of certified pesticide applicators will not be availabe.
8. Import restrictions on agricultural commodities
The Committee considered at length a proposal (originally intro-
duced as H.R. 26) to apply pesticide restrictions similar to those
applicable to U.S. farmers and ranchers to foreign producers. After
thorough consideration of this matter the Committee decided to
handle this provision as separate and distinct from this bill.
9. Research
There has existed for years collaborative research between manu-
facturers of pesticides and public and private research institutions.
However, initial experimental formulations have largely originated in
the laboratories of the manufacturers. The Committee believes this
vital research base to be extremely important in the development of
new and better materials to meet the environmental and productive
needs of the future. This objective is also sought in this legislation.
10. State authority
In dividing the responsibility between the States and the Federal
Government for the management of an effective pesticide program,
the Committee has adopted language which is intended to com-
pletely preempt State authority in regard to labeling and packaging.
With regard to this Federal preemption of labeling and packaging,
EPA may, where appropriate, in setting labeling and packaging
requirements, give consideration to regional, State, and local needs.
The Committee also intends for the Federal law to preempt the States
from restricting or licensing any "general use" pesticide. The States
would also be precluded from adopting programs which are less
stringent than the Federal standards. In the case of "restricted use"
pesticides the States are left free to impose whatever restrictions they
may wish (other than labeling and packaging). The States could also
completely prohibit the use of these "restricted use" pesticides within
their jurisdictions.
The Committee rejected a proposal which would have permitted
political subdivisions to further regulate pesticides on the grounds
that the 50 States and the Federal Government should provide an
adequate number of regulatory jurisdictions.
Nor is the language in section 24 (c) intended to derogate the
language in section 24(a). Thus the Administrator would not have
authority to delegate to the States authority to set aside the pre-
emption provisions of section 24(a).
11. Inconsistent with label
It is the intent of this definition that articles designated for general
or restricted use may be used by a pesticide applicator at a lower
dilution than that specified on the label. While it would obviously be
dangerous to permit more concentrated solutions to be used, the Com-
mittee recognizes the need to apply the standard of use "inconsistent"
with respect to labeling in a common sense manner. Thus, for example,
the use of pesticide solutions in lower amounts for aerial spraying, when
otherwise determined to be safe, should be permitted. r ,
[p. 16J
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1878 LEGAL COMPILATION—SUPPLEMENT I
12. "Produce" and "producer"
It is also the intent of the Committee that the persons who dilute
pesticides for further use should not, under ordinary circumstances, be
considered "producers" or as "producing" pesticides.
TYPOGRAPHICAL ERRORS IN H.K. 10729
The bill contains several typographical and technical errors which
the committee intends to correct when the bill reaches the Floor of
the House. The most serious printing errors occur at page 27, line 7
where the wrong line was inserted and should read, "of his intention
and of whether he intends to cancel the"; and on page 28, lines 20
through 23 should be deleted.
ADMINISTRATION POSITION
The Administration supports the enactment of H.K. 10729 as
indicated in the following letter from the Environmental Protection
Agency:
ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.C., September 24, 1971.
Hon. W. R. POAGE,
Chairman, Committee on Agriculture,
House of Representatives,
Washington, D.C.
DEAR MR. CHAIRMAN: I am pleased to learn that your Committee
has ordered reported H.R. 10729, the "Federal Environmental
Pesticide Control Act of 1971." I am well aware of the great amount
of time and effort your Committee has devoted to this important
legislation.
The bill provides significant new authorities to enable EPA, in
cooperation with the States and those concerned with the use of
pesticides, to protect the environment and the health of the Nation
against the misuse and overuse of pesticides. While the bill does not
accomplish these objectives in the exact manner proposed in H.R.
4152, the Administration's bill, it will provide essentially the same
protection to the public and the same opportunities for continued
beneficial use of pesticides. I believe that all will agree that the sweep-
ing and highly desirable new authorities of the bill will permit a great
advance in our efforts to protect health and the environment.
I congratulate you and your Committee on the development of this
legislation. I therefore support the enactment of H.R. 10729 and urge
its favorable consideration by the House of Representatives. My staff
and I look forward to continuing to work with you and your Com-
mittee.
Sincerely yours,
WILLIAM D. RUCKELSHAUS,
Administrator.
CURRENT AND FIVE SUBSEQUENT FISCAL YEAR COST ESTIMATE
Pursuant to Clause 7 of Rule XIII of the Rules of the House of
Representatives, the Committee estimates the cost to be incurred by
[p. 17]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1879
the Federal Government during the current and the five subsequent
fiscal years as a result of the enactment of this legislation would be as
follows:
The Committee assumes that H.R. 10729 will be enacted into law
during the current fiscal year (FY 1972) but that appropriations to
carry out the new program will not be made until fiscal year 1973.
The Committee concurs with the following gross cost estimates for
fiscal years 1973-77 as submitted by the Environmental Protection
Agency:
Gross costs: Millions
Fiscal year 1973 $15. 7
Fiscal year 1974 . 33.3
Fiscal year 1975. _.. . 42.0
Fiscal year 1976 _. 43.8
Fiscal year 1977 43. 3
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.
The following exceptions to immediate effectiveness of amendments
enacted are made:
t(l) All new registrations of pesticides 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 fiom
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.
[p. 18]
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1880 LEGAL COMPILATION—SUPPLEMENT I
(5) One year from enactment the Administrator is to have in effect
regulations governing the legistration 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 publication of the final regulations.
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 of any act
or omission occurring before the expiration of the periods referred to
in this section.
FEDERAL INSECTICIDE, FUNGICIDE, AND EODENTICIDE ACT
Section 2 oj H.E. 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.
A "certified pesticide applicator" is one certified by the State or
Federal government according to standards prescribed by the Adminis-
trator to use restricted use pesticides.
A "private pesticide applicator" is » certified applicator who uses
restricted use pesticides only on his own property, or on the property
of another without compensation.
A "commercial pesticide applicator" is any certified applicator
other than a private applicator.
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 3. 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 must be so registered.
Subsection (b) exempts from registration pesticides which are
transferred from one establishment to another operated by the same
pesticides producer, and pesticides transferred in accordance with an
experimental 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.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1881
Research data originated and submitted by an applicant for registra-
tion are not to be considered by the Administrator without permission
of the applicant, in support of any other application for registration.
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
st tement together with such other scientific information as he deems
relevant to his decision except for test data as provided under section
3(c) (1) (Dj and for trade secrets as provided under section 10. However,
the Administrator is not prohibited from making public the data
under section 3(c)(l)(D) but is prohibited as to trade secrets and
other information as provided by section 10.
Under the subsection, the Administrator is required to approve or
deny registration as expeditiously as possible. He is to publish in the
Federal Eegister notice of applications received for the registration
of those pesticides containing a new active ingredient or for which a
changed use pattern is proposed. While no specific time limit is placed
upon the Administrator with respect to how quickly he must act upon
an application for registration he is required to act within a reasonable
time and such period of time should not normally exceed three months.
Where, however, there are extremely unusual mitigating circum-
stances, a slightly longer period of time could be necessary. The
Administrator is similarly authorized to request additional kinds of
information and while in some rare instances such additional kinds of
information may be necessary prior to registration, requests for such
additional kinds of information are not to be utilized as a device to
delay registration.
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 ad-
verse effects on the environment when properly used. If such deter-
mination 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 Administrator is required to refuse to register the pesticide if the
corrections are not made. The applicant then has recourse to the ad-
ministrative remedies in Section 6.
The burden of proof remains Avith the applicant (as in present
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
Administrator has reviewed all of the test data and any other informa-
tion he may require to support a registration and has found that its
composition is such as to warrant the proposed claims for it, that the
labeling and other material required to be submitted comply with the
Act, and that it will perform its intended function without substantial
adverse affects on the environment that he must register a pesticide.
If the applicant cannot satisfy the Administrator on the above re-
quirements 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
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1882 LEGAL COMPILATION—SUPPLEMENT I
pesticide registered for both general and restricted use the bill requires
that directions 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 direc-
tions for use and warning or caution statements.
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.
The 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 pesticide applicator or be sub-
ject to other regulatory restrictions.
The foregoing classification and restriction provisions are not con-
tained in present law and constitute entry of Federal regulation into
a significantly unregulated area. General use pesticides will be regu-
lated as all pesticides under Federal jurisdiction aro regulated at
present. Eegistration 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. The
provisions of the bill for classifying pesticides for restricted use and in
some cases requiring that they be applied by or under the supervision
of a certified pesticide applicator or in other cases 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.
Paragraph (2) requires the Administrator to notify the registrant
30 days before changing the classification of a pesticide, and to publish
the proposed changes in the Federal Register. Remedies for such a
registrant are contained in Sec. 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. j
The term "factual basis", as utilized in sections 3 and 6 of the Aft,
is intended to require the Administrator to set forth the specific
manner in which the pesticide, its labeling, or other material concerned
with the pesticide fails to comply with the Act, and to also set forth
the scientific basis for his determination. Mere reference to statutory
language is not to be construed as a statement of the "factual basis",
but rather a statement of conclusions and therefore would not be in
compliance with the intent of this provision.
Section 4- Use of restricted use pesticides; certified applicators
This section provides for Federal or State certification of pesticide
applicators according to standards prescribed by the Administrate r.
A State ms.y certify applicators if a plan submitted by the Governor
is approved which designates a State agency to administer the pLn;
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1883
assures legal authority, adequate funds, and qualified personnel to
execute the plan; provides for reports to the Administrator; and con-
tains applicator certification standards at least equal to those pre-
scribed by the Administrator. A State must be given due notice and
opportunity for hearing if the Administrator rejects a pesticide appli-
cator certification plan.
The provisions for certification of applicators comprise new and
important authorities for regulating pesticides use. Many restricted
use pesticides would be restricted to use by certified pesticide appli-
cators whose misuse of pesticides could result in withdrawal of certi-
fication. In the case of commercial applicators, such action would be
extremely serious. In the case of private pesticide 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 estab-
lished by him, experimental use permits if an applicant needs such
permit in order to accumulate information necessary to register a
pesticide. Such permit may be revoked if its terms or conditions are
violated or are inadequate to avoid substantial adverse effects on the
environment.
Section 6. Administrative review; Suspension
Section 6 provides for the cancellation of a registered pesticide at the
end of each five year period unless the registrant requests that the
registration be continued. If a pesticide is otherwise cancelled for
cause or the classification is changed the registrant may make correc-
tions or file objections and request a public hearing.
In order to prevent an imminent hazard during the time required
for cancellation proceedings the registration of a pesticide may be
suspended. When an order of suspension is issued, a cancellation order
must also be issued and the registrant is entitled to the hearing and
review remedies available under a cancellation order. An order of
suspension is also subject to immediate limited judicial review solely
to determine whether the order was arbitrary, capricious or an abuse
of discretion, or whether the order was issued in accordance with legal
procedures.
When an applicant requests a public hearing in the course 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 admin-
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1884 LEGAL COMPILATION—SUPPLEMENT I
istrative 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. If questions of scientific fact
have been referred to a Committee, the 90 days would not, of course,
begin until the Committee submits its report for the hearing record or
otherwise until after the completion of the hearing. 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 16 of the Act.
Section 7. Registration of establishments
Products subject to 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
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.
Section 8. Books and records
The Administrator may prescribe regulations requiring producers to
maintain such records with respect to their operations and the prod-
ucts 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 desig-
nated by the Administrator are authorized to enter any establish-
ments at reasonable times to inspect and obtain samples of any pesti-
cides or devices, 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 presented. If no violation is suspected other sufficient reason
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1885
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. 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 any criminal proceedings are contemplated and
provide an opportunity for him to present his views with regarc' to the
contemplated proceedings. If, thereafter, the Administrator believes
the Act has been violated he shall certify the facts to the Attorney
General for the institution of criminal proceedings pursuant to section
16 if he believes that such action will be sufficient to effectuate the pur-
poses of the Act. However, this notice and opportunity to present views
are not prerequisites to the institution of any proceedings by the
Attorney General. Warning notices may be issued in lieu of a prosecu-
tion for minor violations if the Administrator believes the public
interest will be served.
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 sepaiately from the other material required.
The Administrator would not make public any such information
which in his judgment contains or relates to trade secrets or commercial
or financial information obtained from a person and privileged or
confidential. However, if necessary to carry out provisions of the
Act, information relating to formulas of products acquired by authori-
zation of the Act may be revealed to any Federal agency consulted
and may be levealed at a public hearing or in findings of fact issued
by the Administrator.
Section 11. Standards applicable to pesticide applicators
This section exempts private pesticide applicators from any record-
keeping or report filing regulations prescribed by the Administrator
under the Act, and provides that the Administrator shall establish
separate 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;
advertisment of a restricted use product not containing such classi-
fication; 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 record-keeping and establishment registration provi-
sions is also prohibited.
The section also provides exemption for certain persons dealing with
pesticides.
The purpose of Section 12 (a) (2) (F) is to make it unlawful for
any person to make available for or to use a pesticide, classified for
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1886 LEGAL COMPILATION—SUPPLEMENT I
restricted use for some or all purposes, for its restricted uses without
complying with the restrictions imposed under this Act. If, however,
a pesticide in accordance with Section 3 (d) is also classified for general
use for some purposes the restrictions imposed for its restricted uses
are not applicable to its general uses under either this Section or
Section 3 (d).
Section 18. 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 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.
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
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 FIFK.A. Persons 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 pesticide applicator 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 dispensed with if warranted.
The reported bill also provides that any person 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
mere than one year or both, except that a private pesticide applicator
c( uld be fined not more than $1,000 or imprisoned more than 30 days,
or both.
Section 15. Indemnities
Subsection (a) provides that if the Administrator notified a regis-
trant that he has suspended the registration of a pesticide because
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1887
such action is necessary to prevent an imminent hazard and such
registration is cancelled as a result of a final determination that the
use of such pesticide will create an imminent hazard, any person
owning any such pesticide before the suspension notice and who
suffered losses because of suspension and ensuing cancellation would
be entitled to an indemnity payment.
Subsection (b) provides that the amount of the indemnity payment
would be determined on the basis of the cost of the pesticide owned by
such person immediately before the notice of suspension, except that
no indemnity payment to any person could exceed the fair market
value of the pesticide owned by such person immediately before such
notice.
The provisions relating to indemnity payments provide for in-
demnification for pesticide losses where a registration has been sus-
pended to prevent an imminent hazard and a final cancellation order
has subsequently been issued. Therefore such payments should not
occur frequently as the provisions do not apply to the numerous
routine pesticide registration cancellations. Further, because of the
more flexible regulatory program which the bill provides, there should
be fewer occasions to suspend registrations under the new legislation.
Section 16. Administrative review; judicial review
Except as otherwise provided by this section, chapter 5 of title 5 of
the U.S. Code relating to administrative procedure and chapter 7
of title 5 of the U.S. Code relating to judicial review apply in respect
of rules, rule making, orders, adjudication, licensing, sanctions, agency
proceedings,and agency actions under the Act.
Section 16 also provides that in the case of actual controversy as
to the validity of any order issued by the Administrator following a
public hearing, any party at interest may obtain judicial review by
riling 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 Ad-
ministrator 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.
The district courts of the U.S. are vested with jurisdiction to
enforce, and to prevent and restrain violations of the Act.
The Administrator must give notice by publication or otherwise
of all judgments entered in actions under the Act.
Section 17. 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
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1888 LEGAL COMPILATION SUPPLEMENT I
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 payments
of expenses incurred by such finding and refusal of admission.
Subsection (d) requires the Administrator to participate in inter-
national efforts to develop improved pesticide research and regulations,
and subsection (e) requires the Secretary of the Treasury to prescribe
regulations under this section.
Section 18. Exemption of Federal agencies
This section authorizes the President to exempt a Federal agency
from the provisions of the Act if emergency conditions so require. In
this regard the President, is authorized to establish procedures to
require EPA to promptly consult with other Federal Agencies in order to
facilitate temporary registration of restricted use pesticides for meeting
emergency outbreaks of plant or animal diseases. Using this authority
the President can enable farmers and ranchers to cope with emergency
conditions before they spread to other areas, even though in some
instances EPA might not possess the fully detailed information nor-
mally required. Such a temporary registration should, however, be
granted only if EPA has determined that the proposed emergency use
will not endanger man or adversely affect the environment.
Section 19. Disposal and transportation
Section 19 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 this
requirement to accept for disposal is keyed to suspensions under sec-
tion 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 19
to advise the Secretary of Transportation with respect to the trans-
portation in light of the Secretary's responsibilities regarding hazard-
ous materials.
Section 20. 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.
[p. 27]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1889
Section 21. Solicitation of public comments
Section 21 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 22. Delegation and cooperation
This section authorizes the delegation of authorities vested in the
Administrator under the Act to his designees, and provides for coopera-
tion by the Administrator with other Federal agencies and with agencies
of State and local governments in carrying out the Act.
Section 28. State cooperation, aid, and training
This section authorizes the Administrator to enter into cooperative
agreements with States for purposes of enforcement of the Act, in-
cluding 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.
Section 24- 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, and does not restrict further the use
of a general use pesticide by requiring a license or permit.
Subsection (b) preempts any State labeling or packaging require-
ments differing from such requirements under the Act.
Subsection (c) 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. The purpose of this
subsection is to give States the opportunity to meet expeditiously and
with less cost and administrative burden on the registrant the problem
of registering for limited local use a pesticide needed to treat sudden
pest infestation.
Section 25. 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 oppor-
tunity for hearing, to declare as pests certain forms of life, determine
which pesticides are highly toxic to man, establish packaging stand-
ards, specify classes of devices subject to the Act, prescribe regulations
for the discoloration or coloring of pesticides, and determine and
establish suitable names to be used in ingredient statements.
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1890 LEGAL COMPILATION—SUPPLEMENT I
Section 26. SeverabUity
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 27. 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 1972,
1973, and 1974. Thereafter new legislation will be necessary to deter-
mine authorized appropriations.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
In compliance with clause 3 of Rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as re-
ported, are shown as follows (existing law proposed to be omitted is
enclosed in black brackets, new matter is printed in italics, existing
law in which no change is proposed is shown in roman):l
FEDERAL INSECTICIDE, FUNGICIDE, AND
RODENTICIDE ACT2
AN ACT
To regulate the marketing of economic poisons and devices, and for other purposes.
Be it enacted by the Senate and House of Representatives oj the United
States of America in Congress assembled,
[TITLE
[SECTION 1. This Act may be cited as the "Federal Insecticide,
Fungicide, and Rodenticide Act."
[DEFINITIONS
[SEC. 2. For the purposes of this Act—
[a. The term "economic poison" means (1) any substance or mixture
of substances intended for preventing, destroying, repelling, or miti-
gating 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. The term "device" means any instrument or contrivance in-
tended 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,1 but not in-
cluding equipment used for the application of economic poisons when
sold separately therefrom.
1 The changes in existing law shown herein reflect the correction of various typographical and clerical
errors in H.R. 10729, as reported to the House.
! Section 4 of H. R. 10729 provides effective dates for various provisions of this Act.
3 The functions of the Secretary of Agriculture and the Department of Agriculture were transferred to the
Administrator of the Environmental Protection Agency pursuant to Reorganization Plan No. 3 of 1970,
effective December 2, 1970. therefore the reference to the word "Secretary" in this statute should be con-
strued as being the "Administrator" of EPA _
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1891
[c. The term "insecticide" means any substance or mixture of sub-
stances intended for preventing, destroying, repelling, or mitigating
any insects which may be present in any environment whatsoever.
£d. The term "fungicide" means any substance or mixture of sub-
stances intended for preventing, destroying, repelling, or mitigating
any fungi.
[e. The term "rodenticide" means any substance or mixture of sub-
stances intended for preventing, destroying, repelling, or mitigating
rodents or any other vertebrate animal which the Secretary1 shall
declare to be a pest.
[f. 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 sub-
stances intended for preventing, destroying, repelling, or mitigating
nematodes.
[h. The term "plant regulator" means any substance or mixture of
substances, 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.
[i. The term "defoliant" means any substance or mixture of sub-
stances intended for causing the leaves or foliage to drop from a plant,
with or without causing abscission.
[j. The term "desiccant" means any substance or mixture of sub-
stances intended for artificially accelerating the drying of plant tissue.
[k. The term "nematode" means invertebrate animals of the phylum
nemathelminth.es 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. The term "weed" means any plant which grows where not
wanted.
[m. The term "insect" means any of the numerous small inverte-
brate animals generally having the body more or less obviously seg-
mented, for the most part belonging to the class insecta, comprising
six-legged, usually winged forms, as, for example, beetles, bugs, bees,
flies, and to other allied classes of arthropods whose members are wing-
less and usually have more than six legs, as, for example, spiders, mites,
ticks, centipedes, and wood lice.
[n. The term "fungi" means all non-chlorophyll-bearing thallo-
phytes (that is, all non-chlorophyll-bearing plants of a lower order than
mosses and liverworts) as, for example, rusts, smuts, mildews, molds,
yeasts, and bacteria, except those on or in living man or other animals.
[o. The term "ingredient statement" means either—
[(1) a statement of the name and percentage of each active in-
gredient, together with the total percentage of the inert ingre-
dients, 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 ingre-
dients, if any there be, in the economic poison (except option 1
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1892 LEGAL COMPILATION—SUPPLEMENT I
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.
[p. The term "active ingredient" means—
[(1) in the case of an economic poison other than a plant
regulator, defoliant or desiccant, an ingredient which will pre-
vent, destroy, repel, or mitigate insects, nematodes, fungi,
rodents, weeds, or other pests;
£(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 thereof;
[q. 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 treatment.
£s. The term "person" means any individual, partnership, associa-
tion, corporation, or any organized group of persons whether incor-
porated or not.
[t. The term "Territory" means any Territory or possession of the
United States, excluding the Canal Zone.
[u. The term "Secretary" means the Secretary of Agriculture.
[v. The term "registrant" means the person registering any econom-
ic poison pursuant to the provisions of this Act.
[w. The term "label" means the written, printed, or graphic matter
on, or attached to, the economic poison 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.
[x. 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) accompanying the economic poison or device at any time;
[(3) to which reference is made on the label or in literature
accompanying the economic poison or device, except to current
official publications of the United States Departments of Agri-
culture and Interior, the United States Public Health Service,
State experiment stations. State agricultural colleges, and other
similar Federal or State institutions or agencies authorized by
law to conduct research in the field of economic poisons;
[y. The term "adulterated" shall apply to any economic poison if
its strength or purity falls below the professed standard or quality as
expressed on its labeling or under which it is sold, or if any substance
has been substituted wholly or in part for the article, or if any valuable
constituent of the article has been wholly or in part abstracted.
[z. The term "misbranded" shall apply—
[(1) to any economic poison or device if 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—
[(a) if it is an imitation of or is offered for sale under
the name of another economic poison;
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1893
[(b) if its labeling bears any reference to registration
under this Act other than the registration number assigned
to the economic poison;
[(c) if the labeling accompanying it does not contain
directions for use which are necessary and if complied with
adequate for the protection of the public;
[(d) if the label does not contain a warning or caution
statement which may be necessary and if complied with
adequate to prevent injury to living man and other vertebrate
animals, vegetation, and useful invertebrate animals;
[(e) 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 Secretary1 may permit the ingredient statement
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 customary conditions of purchase;
[(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 con-
spicuousness (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 com-
monly 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 desic-
cant 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 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 desic-
cant was applied, in accordance with the label claims and
recommendations; or
[(i) if its packaging or labeling is in violation of an appli-
cable regulation issued pursuant to section 3 or 4 of the
Poison Prevention Packaging Act of 1970.
[PROHIBITED ACTS
[SEC. 3. (a) It shall be unlawful for any person to distribute, sell,
or offer for sale in any Territory or in the District of Columbia, or to
ship or deliver for shipment from any State, Territory, or the District
of Columbia to any other State, Territory, or the District of Colum-
[p. 32]
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1894 LEGAL COMPILATION—SUPPLEMENT I
tia, or to any foreign country, or to receive in any State, Territory, or
the District of Columbia from any other State, Territory, or the Dis-
trict 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:
[(1) Any economic poison which is not registered pursuant to
the provisions of section 4 of this Act, or any economic poison if 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 regis-
tration, or if the composition of an economic poison differs from its
composition as represented in connection with its registration: Pro-
vided, 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.
[(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 pack-
age, if there be one through which the required information on the
immediate container cannot be clearly read, a label bearing—
[(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.
[(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 back-
ground of distinctly contrasting color; and
[(c) a statement of an antidote for the economic poison.
[(4) 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 dis-
colored 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 dis-
colored: 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.
[(5) Any economic poison which is adulterated or misbranded or
any device which is misbranded
[p. 33]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1895
[b. Notwithstanding any other provision of this Act, no article shall1
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.
[c. It shall be unlawful—
[(1) for any person to detach, alter, deface, or destroy, in whole
or in part, any label or labeling provided for in this Act or the
rules and regulations promulgated hereunder, or to add any
substance to, or take any substance from, an economic poison in a
manner that may defeat the purpose of this Act;
[(2) 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;
[(3) for any person to give a guaranty or undertaking provided
for in section 7 which is false in any particular, except that a
person who receives and relies upon a guaranty authorized under
section 7 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) for any person to use for his own advantage or to reveal,
other than to the Secretary, or officials or employees of the United
States Department of Agriculture, or other Federal agencies, or
to the courts in response to a subpena, or to physicians, and in
emergencies to pharmacists and other qualified persons, for use
in the preparation of antidotes, in accordance with such directions
as the Secretary may prescribe, any information relative to for-
mulas of products acquired by authority of section 4 of this Act.
[REGISTRATION
[SEC. 4. a. Every economic poision which is 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: 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 desig-
nation 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 supplement statements; the applicant for
registration shall file with the Secretary a statement including—
[(1) the name and address of the applicant for registration and
the name and address of the person whose name will appear on the
label, if other than the applicant for registration;
[(2) the name of the economic poison;
[(3) a complete copy of the labeling accompanying the eco-
nomic poison and a statement of all claims to be made for it,,
including the directions for use; and
[p. 34]
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1896 LEGAL COMPILATION—SUPPLEMENT I
[(4) if requested by the Secretary, a full description of the
tests made and the results thereof upon which the claims are
based.
[b. The Secretary, whenever he deems it necessary for the effective
administration of this Act, may require the submission of the com-
plete formula of the economic poison. If it appears to the Secretary
that the composition of the article is such as to warrant the pro-
posed claims for it and if the article and its labeling and other mate-
rial required to be submitted comply with the requirements of section
3 of this Act, he shall register it.
[c. If it does not appear to the Secretary 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, 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 appli-
cant for registration an opportunity to make the corrections necessary.
If, upon receipt of such notice, the applicant for registration does
not make the corrections, the Secretary shall refuse to register the
article. 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
canceled, 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) Ues objections and requests a public
hearing. Each advisory committee shall be composed of experts, qual-
ified 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 by the Secretary. Members
of an advisory committee shall receive as compensation for their serv-
ices 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 and 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 Secretarv shall forthwith submit to such committee
[p- 35]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1897
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 Secre-
tary shall, within ninety days after receipt of the report and recom-
mendations 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 registrant. 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 Administra-
tive 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 recom-
mendations of such committee upon request of the Secretary, the
petitioner, or the officer conducting the hearing: Provided, That thia
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 Secre-
tary shall evaluate the data and reports before him, act upon such
objections and issue an order granting, denying, or canceling the regis-
tration or requiring modification of the claims or the labeling. Such
order shall be based only on substantial evidence of record at 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.
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. Notwithstanding the provisions of section 3(c)(4),
information 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 com-
mittee: Provided, That this provision shall not be construed as pro-
hibiting the use of such data by the committee in connection with its
•consultation with the petitioner or representatives of the United
States Department of Agriculture, as provided for herein, and in
connection with its report and recommendations to the Secretary.
[p- 36]
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1898 LEGAL COMPILATION—SUPPLEMENT I
Notwithstanding any other provision of this section, the Secretary
may, when he finds that such action is necessary to prevent an immi-
nent hazard to the public, by order, suspend the registration of an
economic poison immediately. In such case, he shall give the regis-
trant 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. In no event shall
registration of an article be construed as a defense for the commission.
of any offense prohibited under section 3 of this Act.
[d. In a case of actual controversy as to the validity of any order
under this section, any person who will be adversely affected by such
order may obtain judicial review by filing in the United States court
of appeals for the circuit wherein such person resides or has his princi-
pal place of business, or in the United States Court of Appeals for
the District of Columbia Circuit, within sixty days 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, or any officer designated by him
for that purpose, and thereupon the Secretary shall file hi 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 findings of
the Secretary with respect to questions of fact shall be sustained if
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 affirm-
ing 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 certiprari or certification as provided in section 1254 of
title 18 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 filed therein
pursuant to this section.
[e. 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.
[f. The Secretary is authorized to cancel the registration of any
economic poison at the end of a period of five years following the
registration of such economic poison or at the end of any five-year
period thereafter, unless the registrant, prior to the expiration of each
[p. 37]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1899
such five-year period, requests in accordance with regulations issued
by the Secretary that such registration be continued in effect.
[BOOKS AND RECORDS
[SEC. 5. For the purposes of enforcing the provisions of this Act,
any manufacturer, 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 or device subject to this Act,
shall, upon request of any employee of the United States Department
of Agriculture or any employee of any State, Territory, or political
subdivision, duly designated by the Secretary, furnish or permit such
person at all reasonable times to have access to, and to copy all records
showing the delivery, movement, or holding of such economic poison
or device, including the quantity, the date of shipment and receipt,
and the name of the consignor and consignee; and in the event of the
inability of any person to produce records containing such informa-
tion, all other records and information relating to such delivery,
movement, or holding of the economic poison or device. Notwith-
standing this provision, 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.
[ENFORCEMENT
[SEC. 6. a. The Secretary (except as otherwise provided in this
section) is authorized to make rules and regulations for carrying out
the provisions of this Act, including the collection and examination of
samples of economic poisons and devices subject to this Act and the
determination and establishment of suitable names to be used in the
ingredient statement. The Secretary is, in addition, authorized after
opportunity for hearing—
[(1) to declare a pest any form of plant or animal life or virus
which is injurious to plants, man, domestic animals, articles, or
substances;
[(2) to determine economic poisons, and quantities of sub-
stances contained in economic poisons, which are highly toxic to
man; and
[(3) to determine standards of coloring or discoloring for eco-
nomic poisons, and to subject economic poisons to the require-
ments of section 3a (4) of this Act.
[b. The Secretary of the Treasury and the Secretary of Agriculture
shall jointly prescribe regulations for the enforcement of section 10
of this Act.
[c. The examination of economic poisons or devices shall be made
in the United States Department of Agriculture or elsewhere as the
Secretary may designate for the purpose of determining from such
examination whether they comply with the requirements of this Act,
and if it shall appear from any such examination that they fail to
comply with the requirements of this Act, the Secretary l shall cause
notice to be given to the person against whom criminal proceedings
are contemplated. Any person so notified shall be given an oppor-
tunity to present his views, either orally or in writing, with regard to
such contemplated proceedings, and if in the opinion of the Secretary
[p. 38]
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1900 LEGAL COMPILATION—SUPPLEMENT I
it appears that the provisions of this Act have been violated by such
person, then the Secretary shall certify the facts to the proper United
States attorney, with a copy of the results of the analysis or the exam-
ination of such article: Provided, That nothing in this Act shall be
construed as requiring the Secretary to report for prosecution or for
the institution of libel proceedings minor violations of this Act when-
ever he believes that the public interest win be adequately served by
a suitable written notice of warning.
[d. It shall be the duty of each United States attorney, to whom the
Secretary or his agents shall report any violation of this Act, to
cause appropriate proceedings to be commenced and prosecuted in
the proper courts of the United States without delay.
[e. The Secretary shall, by publication in such manner as he may
prescribe, give notice of all judgments entered in actions instituted
under the authority of this Act.
[EXEMPTIONS
[SEC. 7. a. The penalties provided for a violation of section 3a of
this Act shall not 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
received in good faith the article in the same unbroken package,
to the effect that the article 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 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 or device if such carrier upon request by a
person duly designated by the Secretary shall permit such person
to copy all records showing the transactions in and movement
of the articles;
[(3) to public officials while engaged in the performance of
their 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 promulgated by
the Secretary.
[PENALTIES
[SEC. 8. a. Any person violating section 3a (1) of this Act shall be
guiltv of a misdemeanor and shall on conviction be fined not more
than"$l,000.
[b. Any person violating any provision other than section 3a (1) of
this Act shall be guilty of a misdemeanor and shall upon 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 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
[p. 39]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1QQ1
the registration of which has been terminated may not again be reg-
istered unless the article, its labeling, and other material required
to be submitted appear to the Secretary to comply with all the re-
quirements of this Act.
[c. Notwithstanding any other provision of this section, in case any
person, with intent to defraud, uses or reveals information relative
to formulas of products acquired under the authority of section 4 of
this Act, he shall be fined not more than $10,000 or imprisoned for
not more than three years, or both such fine and imprisonment.
[d. 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.
[SEIZURES
[SEC. 9. a. Any economic poison or device that is being transported
from one State, Territory, or District to another, or, having been
transported, remains unsold or in original unbroken packages, or that
is sold or offered for sale in the District of Columbia or any Territory,
or that is imported from a foreign country, shall be liable to be pro-
ceeded 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 for
condemnation—
[(1) in the case of an economic poison—
[(a) if it is adulterated or misbranded;
[(b) if it is not registered pursuant to the provisions of
section 4 of this Act;
[(c) if it fails to bear on its label the information required
by this Act; or
[(d) if it is a white powder economic poison and is not
colored as required under this Act; or
[(2) in the case of a device if it is misbranded.
[b. If the article 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 costs, shall be paid into the Treasury
of the United States, but the article shall not be sold contrary to the
provisions of this Act or of the laws of the jurisdiction in which it is
sold: Provided, That upon the payment of the costs of the libel pro-
ceedings and the execution and delivery of a good and sufficient bond
conditioned that the article shall not be sold or otherwise disposed of
contrary to the provisions of this Act or the laws of any State, Terri-
tory, or District in which sold, the court may direct that such articles
be delivered to the owner thereof. The proceedings of such libel cases
shall conform, as near as may be, to the proceedings in admiralty,
except that neither 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. When a decree of condemnation is entered against the article,
court costs and fees, storage, and other proper expenses shall be
awarded against the person, if any, intervening as claimant of the-
article. [p ^
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1902 LEGAL COMPILATION—SUPPLEMENT I
[IMPOSTS
[SEC. 10. The Secretary of the Treasury shall notify the Secretary
of Agriculture of the arrival of economic poisons and devices offered
for importation and shall deliver to the Secretary of Agriculture, upon
his request, samples of economic poisons or devices which are being
imported or offered for import into the United States, giving notice
to the owner or consignee, who may appear before the Secretary of
Agriculture 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 set forth in this Act, or is other-
wise 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,
the said article may be refused admission, and the Secretary of the
Treasury shall refuse delivery to the consignee and shall cause the
destruction of any goods refused delivery which shall not be exported
by the consignee within three months from the date of notice of
such refusal under such regulations as the Secretary of the Treasury
may prescribe: Provided, That the Secretary of the Treasury may
deliver to the consignee such goods pending examination and decision
in the matter on execution of a penal bond for the amount of the full
invoice value of such goods, together with the duty thereon, and on
refusal to return such goods for any cause to the custody of the Secre-
tary 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 bond: And provided farther, That all
charges for storage, cartage, and labor on goods 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.
[DELEGATION OF DUTIES
[SEC. 11. All authority vested in the Secretary by virtue of the pro-
visions of this Act may with like force and effect be executed by such
employees of the United States Department of Agriculture 1 as the
Secretary may designate for the purpose.
[AUTHORIZATION FOR APPROPRIATIONS AND EXPENDITURES
[SEC. 12. a. There is hereby authorized to be appropriated, out of
any moneys in the Treasury not otherwise appropriated, such sums as
may be necessary for the purposes and administration of 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. r »-,-\
[p. 41]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1903
[COOPERATION
[Sec. 13. The Secretary is authorized to cooperate with any 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, or any political subdivision thereof, in
carrying out the provisions of this Act, and in securing uniformity of
regulations.
[SEPARABILITY
[SEC. 14. If any provision of this Act is declared unconstitutional,
or the applicability thereof to any person or 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.
[EFFECTIVE DATE
[SEC. 15. All provisions of this Act, except section 3, "Prohibited
Acts"; section 8, "Penalties"; section 9, "Seizures"; and section 10,
"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
economic actions, 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 ana 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 provision
of the Insecticide Act of 1910.
[REPEALS
[SEC. 16. The Insecticide Act of 1910, approved April 26, 1910
(36 Stat. 331, 7 U.S.C. 121-134), is hereby repealed one year after
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 l 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 in-
secticides and fungicides exempted bv the Secretarv under section
' ' "
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1904 LEGAL COMPILATION—SUPPLEMENT I
SEC. 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the "Federal Insecticide,
Fungicide, and Rodenticide Act".
(b) TABLE OF CONTENTS.—
Section 1. Short title and table of contents.
(a) Short title.
(b) Table of contents.
Sec. 2. Definitions.
(a) Active ingredient.
(b) Administrator.
(c) Adulterated.
(d) Animal.
(e) Certified pesticide applicator, etc.
(1) Certified pesticide applicator.
(2) Private pesticide applicator.
(3) Commercial pesticide applicator.
(/) Defoliant.
(g) Desiccant.
(h) Device.
(i) District court.
(j) Environment.
(k) Fungus.
(I) Imminent hazard.
(m) Inert ingredient.
(n) Ingredient statement.
(o) Insect.
(p) Label and labeling.
(1) Label.
(2) Labeling.
(g) Misbranded.
(r) Nematode.
(s) Person.
(t) Pest.
(u) Pesticide.
(v) Plant regulator.
(w) Producer and produce.
(x) Protect health and the environment.
(y} Registrant.
(2) Registration.
(aa) State.
(66) Substantial adverse effects on the environment.
(cc) Weed.
Sec. 3. Registration of pesticides.
(d) Requirement.
(6) Exemptions.
(c) Procedure for registration.
(1) Statement required.
(#) Data in support of registration.
(3) 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.
(/) Miscellaneous.
(1) Effect of change of labeling or formulation.
(2) Registration not a defense.
(3) Authority to consult other Federal agencies.
Sec. 4- Use of restricted use pesticide; certified applicators.
(o) Certification procedure.
(1) Federal certification.
(2) State certification.
(6) State plans. ~ .„-,
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1905
Sec. 5. Experimental use permits.
(a) Issuance.
(6) Temporary tolerance level.
(c) Use under permit.
(d) Studies.
(e) Revocation.
Sec. 6. Administrative review; suspension.
(a) Cancellation after five years.
(1) Procedure.
(&) Information.
(b) Cancellation and change in classification.
(c) Suspension.
(1) Order.
(#) Duration of order.
(S) Judicial review.
(d) Public hearings and scientific review.
(e) Judicial review.
Sec. 7. Registration of establishments.
(a) Requirement.
(b) Registration.
(c) Information required.
(d) Confidential records and information.
Sec. 8. Books and records.
(a) Requirement.
(fc) Inspection.
Sec. 9. Inspection of establishments, etc.
(a) In general.
(6) Warrants.
(c) Enforcement.
(1) Certification of facts to Attorney General.
(2} Notice not required.
(3) 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. 18. 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.
(%) Private pesticide applicator.
(3) Hearing.
(4) References to Attorney General.
(b) Criminal penalties.
(I) In general.
(#) Private pesticide applicator.
(3) Disclosure of information.
(4) Act of officers, agents, etc.
Sec. 16. Indemnities.
(a) Requirement.
(b) Amount of payment.
(1) In general.
(2) Special rule.
Sec. 16. Administrative procedure; judicial review.
(a) Application of Administrative Procedure Act.
(b) Judicial review.
(c) Jurisdiction of district courts.
(d) Notice of judgments.
[p. 44]
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1906 LEGAL COMPILATION—SUPPLEMENT I
Sec. 17. 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. 18. Exemption of Federal agencies.
Sec. 19. Disposal and transportation.
(a) Procedures.
(b) Advice to Secretary of Transportation.
Sec. SO. Research and monitoring.
(a) Research.
(b) National monitoring plan.
(c) Monitoring.
Sec. HI. Solicitation of public comments.
Sec. 2%. Delegation and cooperation.
Sec. 23. State cooperation, aid, and training.
Sec. 24- Authority of States and political subdivisions.
(a) Cooperative agreements.
(b) Contracts and training.
Sec. 25. Authority of Administrator.
(a) Regulations.
(b) Exemption of pesticides.
(c) Other authority.
Sec. S3. Severability.
Sec. #7. Authorization for appropriations.
SEC, 2. DEFINITIONS.
For purposes of this Act—
(a) ACTIVE INGREDIENT.—The term "active ingredient" means—
(1) in the case oj a pesticide other than a plant regulator, defoliant,
or desiccant, an ingredient which mil prevent, destroy, repel, or
mitigate 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 product thereof;
(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 oj a desiccant, an ingredient which will artificially
accelerate the drying of plant tissue.
(b) ADMINISTRATOR.—The term "Administrator" means the Admin-
istrator oj the Environmental Protection Agency.
(c) ADULTERATED.—The term "adulterated" applies to any pesticide
if:
(1) its strength or purity jails below the professed standard or quality
as expressed on its labeling under which it is sold;
(2) any substance has been substituted wholly or in part for the pesticide;
or
(8) any valuable constituent oj the pesticide has been wholly or '.: ?irt
abstracted.
(d) ANIMAL.—The term "animal" means all veitebrate and inverte-
brate species, including but not limited to man and other mammals, birds,
Ash, and shettjish.
(e) CERTIFIED PESTICIDE APPLICATOR, ETC.—
(1) CERTIFIED PESTICIDE APPLICATOR.—The term "certified
pesticide applicator" means any individual who is certified under
section 4 o>s authorised to use or supervise the use oj any pesticide
which is classified for restricted use.
[p. 45]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1907
(2) PRIVATE PESTICIDE APPLICATOR.—The term "private
pesticide 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 prop-
erty owned or rented by him or (if applied without compensation other
than trading of personal services between producers of agricultural
commodities) on the property of another person.
(8) COMMERCIAL PESTICIDE APPLICATOR.—The term "commercial
pesticide applicator" means a certified pesticide applicator (whether
or not he is a private pesticide 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).
(/) DEFOLIANT.—The term "defoliant" means any substance or
mixture of substances intended for causing the leaves or foliage to drop
rom a plant, with or without causing abscission.
(g) DESICCANT.—The term "desiccant" means any substance or
mixture of substances intended for artificially accelerating the drying of
plant tissue.
(h) DEVICE.—The term "device" means any instrument or contrivance
(other than a firearm) which (1) is intended for trapping, destroying,
repelling, or mitigating 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), and (2) is within a class
of devices in respect of which the Administrator has made the determination
referred to in section 25 (c) (4)-
(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.
(k) FUNGUS.—The term "fungus" means any non-chlorophyll-bearing
thallophyte (that is, any non-chlorophyll-bearing plant of a lower order
than mosses and liverworts), as for example, rust, smut, mildew, mold,
yeast, and bacteria, except those on or in living man or other animals and
those on or in processed food, beverages, or pharmaceuticals.
(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 likely result in substantial
adverse effects on the environment.
(m) INERT INGREDIENT.—The term "inert ingredient" means an
ingredient which is not active.
(n) INGREDIENT STATEMENT.—The term "ingredient statement"
means a statement which contains—
(1) the name of each active ingredient in the pesticide;
(2) if all the uses of the pesticide are classified for general use,
then either—
(i) the total percentage of all inert ingredients, and of all
active ingredients, in the pesticide; or
(ii) the percentage of each active ingredient, and the total
percentage of all inert ingredients, in the pesticide; and if all
the uses of the pesticide are not classified for general use, then
the information required under (ii); and >
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1908 LEGAL COMPILATION—SUPPLEMENT I
(3) if the pesticide contains arsenic in any form, a statement of
the percentages of total and water soluble arsenic, calculated as
elemental arsenic.
(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 insecta, comprising
six-legged, usually winged forms, as for example, beetles, bugs, bees, flies,
•and to other allied classes of arthropods whose members are wingless and
usually haw more than six legs, as for example, spiders, mites, ticks,
centipedes, and wood lice.
(p~) LABEL AND LABELING.—
(1) LABEL.—The term "label" means the written, printed, or
graphic matter on, or attached to, the pesticide or device or any of its
containers or wrappers.
(2) LABELING.—The term "labeling" means all labels and all
other written, printed, or graphic matter—
(A) accompanying the pesticide or device at any time; or
(B) to which reference is made on the label or in literature
accompanying the pesticide or device, except to current official
publications of the Environmental Protection Agency, the United
States Departments of Agriculture and Interior, the Department
of Health, Education, and Welfare, State experiment stations,
State agricultural colleges, and other similar Federal or State
institutions or agencies authorized by law to conduct research in
the field of pesticides.
(g) MlSBRANDED.
(1) A pesticide or device 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;
(B) it is contained in a package or other container or wrap-
ping which does not conform to the standards established by
the Administrator pursuant to section 25 (c) (3);
(O) it is an imitation of, or is offered for sale under the
name of, another pesticide or device;
(D~) its labeling 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;
(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, is adequate
to protect health and the environment; or
(G) if the label does not contain a warning or caution statement
which may be necessary and if complied with, together with any
requirements imposed under section S(d) of this Act, is ade-
quate to protect health and the environment.
[p. 47]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1909
(2) A pesticide is misbranded if—
(A) 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, 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 of 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 of the immediate container, or outside container or wrapper f
permitted by the Administrator;
(B) the labeling does not contain a statement of the use
classification under which the product is registered;
(O) there is not affixed to its container, and to the outside
container or wrapper of the retail package, i/ there be onef
through which the required information on the immediate con~
tainer cannot be clearly read, a label bearing—
(i) the name and address of the producer, registrant, or
person for whom produced;
(ii) the name, brand, or trademark under which the
pesticide is sold;
(Hi) 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 classi-
fication; and
(if) 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 a back-
ground of distinctly contrasting color; and
(Hi) a statement of a practical treatment (first aid or
otherwise) in case of poisoning by the pesticide.
(r) NEMATODE.—The term "nematode" means invertebrate animals of
the phylum nemathelminthes and class nematoda, that is, unsegemented
round worms with elongated, fusiform, or saclike bodies covered with
cuticle, and inhabiting soil, water, plants, or plant parts; may also\be
catted nemos or eelworms.
(s) PERSON.—The term "person" means any individual, partnership,
association, corporation, or any organized group of persons whether
incorporated or not.
(t) PEST.—The term "pest" means (1) any insect, rodent, nematoder
fungus, weed, or (2) any other form of terrestrial or aquatic plant or ani-
mal 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
[p. 48]
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1910 LEGAL COMPILATION—SUPPLEMENT I
(u) PESTICIDE.—The term "pesticide" means (1) any substance or
•mixture of substances intended for preventing, destroying^ repelling,
•or mitigating any pest, and (2) any substance or mixture of substances
intended for use as a plant regulator, defoliant, or desiccant.
(v) PLANT REGULATOR.—The term "plant regulator" means any sub-
stance or mixture of substances, intended through physiological action, for
•accelerating or retarding the rate of growth or rate of maturation, or for
otherwise altering the behavior of plants or the produce thereof, but shall
not include substances to the extent that they are intended as plant nutri-
ents, trace elements, nutritional chemicals, plant inoculants, and soil
amendments.
(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, pre-
pare, 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 environ-
ment" 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.
(y) REGISTRANT.—The term "registrant" means a person who has
registered any pesticide pursuant to the provisions of this Act.
(Q) REGISTRATION.—The term "registration" includes reregistration.
(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.
(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 public interest, including benefits from the use of the
pesticide.
(cc) WEED.— The term "weed" means any plant which grows where
not wanted.
SEC. 3. REGISTRATION OF PESTICIDES.
(a) REQUIREMENT.—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.
(6) EXEMPTIONS.—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 require-
ments of an experimental use permit.
(c) PROCEDURE FOR REGISTRATION.—
(1) STATEMENT REQUIRED.-—Each applicant for registration of a
pesticide shall file with the Administrator^ a statement which in-
cludes—
[p. 49]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1911
(A) the name and address oj the applicant and of any other-
person whose name will appear on the labeling;
(B) the name of the pesticide;
(C) a complete copy oj the labeling oj the pesticide, a state-
ment oj all claims to be made for it, and any directions for its-
use;
(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;
(E) the complete formula 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 REGISTRATION.—The Administrator
shall publish guidelines specifying the kinds of information 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 sufficient time for
applicants to obtain such additional information. Except as provided
by subsection (c)(l)(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) TlME 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 deter-
mination 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 SO days in which any Federal
agency or any other interested person may comment.
(5) APPROVAL OF REGISTRATION.— The Administrator shall
register a pesticide if he determines that, when considered with any
restrictions imposed under subsection (d)—
(A) its composition is such as to warrant the proposed
claims for it;
(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.
(6) DENIAL OF REGISTRATION.—If the Administrator determines
that the requirements of paragraph (5) for registration are not satis-
fied, he shall notify the applicant for registration of his determination
and of his reasons (including the factual basis') therefor, and that,
[p. 50]
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1912 LEGAL COMPILATION—SUPPLEMENT I
unless the applicant corrects the conditions and notifies the Adminis-
trator thereof during the 30-day period beginning with the day after
the date on which the applicant receives the notice, the Administrator
will refuse to register the pesticide. 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.
Upon such notification, the applicant for registration shall have the
same remedies as provided for the registrant in section 6.
(d) CLASSIFICATION OF PESTICIDES.—
(1) CLASSIFICATION FOB GENERAL USE, RESTRICTED USE, OB
BOTH.—
(A) As a part of the registration of a pesticide the Adminis-
trator 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 re-
stricted 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.
(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, will not cause substantial adverse effects
on the environment, he will classify the pesticide, or the par-
ticular use or uses of the pesticide to which the determination
applies for general use.
(<7) 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, may cause, without additional regula-
tory 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 its acute dermal or inhalation toxicity of
the pesticide presents a hazard to the applicator or other per-
sons, the pesticide shall be applied for any use to which
the restricted classification applies only by or under the
direct supervision of a certified pesticide 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 effect 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 pesticide applicator, or subject
to such other restrictions as the Administrator may de--
termine. r „_,!
[p. 51]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1913
(#) CHANGE IN CLASSIFICATION.—If the Administrator deter-
mines that a change in the classification of any use of a pesticide
from general use to restricted use is necessary to prevent substantial
adverse effects on the environment, he shatt notify the registrant
of such pesticide of such determination at least 30 days before making
the change and shatt publish the proposed change in the Federal
Register.
(e) PRODUCTS WITH SAME FORMULATION AND CLAIMS.—Products
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 by supplemental statements.
(f) MISCELLANEOUS.—
(1) EFFECT OF CHANGE OF LABELING OR FORMULATION.—If the
labeling or formulation 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.
(2) REGISTRATION NOT A DEFENSE.—In no event shall registra-
tion of an article be construed as a defense for the commission of any
offense under this Act.
(8) 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.
SEC. 4. USE OF RESTRICTED USE PESTICIDE; CERTIFIED
APPLICATORS.
(a) CERTIFICATION PROCEDURE.—
(1) FEDERAL CERTIFICATION.—Subject to paragraph (2], the
Administrator shall prescribe standards for the certification of
pesticide applicators. 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 of 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 pesticide applicators, 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;
(<7) 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 information
as the Administrator may from time to time require; and
(E) contains satisfactory assurances that State standards for
the certification of pesticide applicators conform with those
standards prescribed by the Administrator under paragraph (1).
(6) STATE PLANS.—If the Administrator rejects a plan submitted
•under this paragraph, he shall afford the State submitting the plan due
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1914 LEGAL COMPILATION—SUPPLEMENT I
notice and opportunity for hearing before so doing. If the Administrator
approves a plan submitted under this paragraph, then such State shall
certify pesticide applicators with respect to such State.
SEC. 5. EXPERIMENTAL USE PERMITS.
(a) ISSUANCE.—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 is filed.
(b) TEMPORARY TOLERANCE LEVEL.—If the Administrator deter-
mines that the use of a pesticide may reasonably be expected to result in
any resudue on or in food or feed, he may establish a temporary tolerance
level for the residue of the pesticide before issuing the experimental use
permit.
(c) USE UNDER PERMIT.—Use of a pesticide undw 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 Admin-
istrator 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 Admin-
istrator 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.
SEC. 6. ADMINISTRATIVE REVIEW; SUSPENSION.
(a) CANCELLATION AFTER FIVE YEARS.—
(1) PROCEDURE.—The Administrator shall cancel the registration
of any pesticide at the end of 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, before the end of such period,
requests in accordance with regulations prescribed by the Admin-
istrator that the registration be continued in effect.
(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 CHANGE IN CLASSIFICATION.—If the
Administrator determines that registration of a pesticide should be can-
celed or that the classification of a pesticide should be changed, he shall
notify the registrant of his intention and of whether he intends to cancel
the registration or change the classification and of his reasons (includ-
ing the factual basis) therefor in writing. Upon receipt of such notice,
the registrant may, within SO days (A) make the necessary corrections
and so notify the Administrator, or (B) file objections and request a pub-
lic hearing. If the registrant does not take any such action, the notice
shall, at the end of 30 days from its receipt by the registrant, constitute
a final order of cancellation or change in classification. If the registrant
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1915
files objections and requests a public hearing, the order of cancellation or
change in classification may only be issued after completion of such
proceeding.
(c) SUSPENSION.—
(1) ORDER.—If the Administrator determines that such action is
necessary to prevent an imminent hazard during the time required
for cancellation proceedings, he may, by order, suspend the registra-
tion of the pesticide immediately. No order of suspension may be
issued unless at the same time the Administrator issues notices of
his intention to cancel the registration of the pesticide. Any remedy
elected by the registrant under section 6(a) shall be held as expedi-
tiously as possible.
(2) DURATION OF ORDER.—Any suspension order shall remain in
effect only until 90 days after the completion of the administrative
remedies provided for under section 6 (a) or until the Administrator
issues his final order either canceling or denying cancellation of the
registration, whichever is sooner.'
(3) JUDICIAL REVIEW.—Any order of suspension shall be
subject to immediate review in all actions by the registrant in an
appropriate district court, solely to determine whether the order of
suspension was arbitrary, capricious or an abuse of discretion, or
whether the order was issued in accordance with the procedures
established by law. This action may be maintained simultaneously
with any administrative review proceeding under section 6.
(d) PUBLIC HEARINGS AND SCIENTIFIC REVIEW.—In the event a
hearing is requested pursuant to subsection (a) or (d) or determined upon
by the Administrator pursuant to subsection (d), 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 show-
ing 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 from any person. Upon the request of any party or when in the
hearing officer's judgment it is necessary or desirable, the hearing officer
shall refer to a Committee of the National Academy of Sciences all relevant
questions of scientific fact arising in the course of the public hearing. The
Committee of the National Academy of Sciences shall report in writing to
the officer within 60 days 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 required by
the Administrator for carrying out the purposes of this Act. The Hearing
Examiner shall be guided by the principles of the Federal Rules of Civil
Procedure in making any order for the protection of the witness and shall
order the payment of reasonable fees and expenses as a condition to re-
quiring his testimony. On contest, the subpena may be enforced by an
appropriate United States District Court in accordance with the principles
stated herein and the Administrative Procedure Act. As soon as practicable
after completion of the hearing 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 sec-
tion, or shall issue an order either cancelling the registration, changing the
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1916 LEGAL COMPILATION—SUPPLEMENT I
classification, denying the registration, or requiring modification of the
labeling or packaging of the article. Such order shall be based only on sub-
stantial evidence of record of such hearing and shall set forth detailed
findings of fact upon which the order is based.
(e) JUDICIAL REVIEW.—Final orders of the Administrator under this
section shall be subject to judicial review pursuant to section 16.
SEC. 7. REGISTRATION OF ESTABLISHMENTS.
(a) REQUIREMENT.—No person shall produce any pesticide or device
subject to this Act in any State unless the establishment in which it is
produced is registered with the Administrator. The application for registra-
tion of any establishment shall include the name and address of the estab-
lishment 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 and devices—
(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 IS,
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.
SEC. 8. BOOKS AND RECORDS.
(a) REQUIREMENT.—The Administrator may prescribe regulations
requiring producers to maintain such records with respect to their opera-
tions 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 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).
(6) INSPECTION.—For the purposes of enforcing the provisions oj this
Act, any producer, distributor, carrier, dealer, or any other person who
setts or ofjersfor sale, delivers or offers for delivery any pesticide or device
subject to this Act, shall, upon request of any officer or employee of the
Environmental Protection Agency or of any State or political subdivision,
duly designated by the 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 pesticide or device, including the
quantity, the date of shipment and receipt, and the name of the consignor
and consignee; or (2) in the event oj the inability oj any person to produce
records containing such information, all other records and information re-
lating to such delivery, movement, or holding of the pesticide or devices.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1917
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 jar which an ap-
plication for registration has been filed).
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; 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, appropriate
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 re-
tained. 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 jurisdication 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 authorising—
(/) entry j'or the purpose of this section;
(2) inspection and, reproduction of all records showing the quan-
tity, date of shipment, and the name of consignor and consignee of
any illegal pesticide or device found in the establishment 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 of
this Act.
(c) ENFORCEMENT.—
(1) CERTIFICATION OF FACTS TO ATTORNEY GENERAL.—The
examination of pesticides or devices shall be made in the Environ-
mental Protection Agency or elsewhere as the Administrator may
designate for the purpose of determining from such examinations
whether they comply with the requirements of this Act. If it shall
appear from any such examination that they fail to comply with the
requirements of this Act, the Administrator shall cause notice to be
given to the person against whom criminal proceedings are contem-
plated. 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 Administrator
itfappearslthat the provisions of this Act have been violated by such
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1918 LEGAL COMPILATION SUPPLEMENT I
person, then the Administrator shall certify the facts to the Attorney
General, with a copy of the results of the analysis or the examination
of such pesticide for the institution of a criminal proceeding pursuant
to section 16, when the Administrator determines that such action
will be sufficient to effectuate the purposes of this Act.
(2) NOTICE NOT REQUIRES.—The notice of contemplated pro-
ceedings 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.—Nothing in this Act shall be construed
as requiring the Administrator to institute proceedings 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.
SEC. 10. PROTECTION OF TRADE SECRETS AND OTHER
INFORMATION.
(a) IN GENERAL.—In submitting data required by this Act, the
applicant 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 sub-
mitted under this Act.
(6) DISCLOSURE.—Notwithstanding any other provision of this Act,
the Administrator shall not make public information which in his judg-
ment contains or relates to trade secrets or commercial or financial infor-
mation obtained from a person and privileged or confidential, except that,
when necessary to carry out the provisions of this Act, information re-
lating to formulas of products acquired by authorisation 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.
SEC. 11. STANDARDS APPLICABLE TO PESTICIDE APPLI-
CATORS.
(a) IN GENERAL.—No regulations prescribed by the Administrator for
carrying out the provisions of this Act shall require any private pesticide
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.
SEC. 12. UNLAWFUL ACTS.
(a) IN GENERAL.—
(1) Except as provided by subsection (b), it shall be unlawful for
any person in any State to 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—
(A) any pesticide which is not registered under section 3;
(B) any registered pesticide if any claims made for it as a
part of its distribution or sale substantially differ from any
claims made for it as a part of the statement required in connec-
tion with its registration under section 3;
(G) 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; r ^,
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1919
(Z?) any pesticide which has not been colored or discolored
pursuant to the provisions of section 25 (c) (5);
(E) any pesticide which is adulterated or misbranded; or
(F) any device which is misbranded.
(2) It shall be unlawful jor any person—
(A) to detach, alter, deface, or destroy, in whole or in part, any
labeling required under this Act;
(B) to refuse to keep any records required pursuant to section
8, or to refuse to allow the inspection of any records or establish-
ment 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;
(C) to give a guaranty or undertaking provided for in sub-
section (b) which is false in any particular, except that a person
who receives and relies upon a guaranty authorized under sub-
section (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;
(D) to use for his own advantage or to reveal, other than to the
the Administrator, or officials or employees of the Environmental
Protection Agency or other Federal executive agencies, or to the
courts, or to physicians, pharmacists, and other qualified persons,
needing such information for the performance of their duties, in
accordance with such directions as the Administrator may pre-
scribe, any information acquired by authority 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
assigned 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;
(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 in-
formation submitted to the Administrator pursuant to section 7,
any records required to be maintained pursuant to section 8,
any report filed under this Apt, 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
(0) to add any substance to, or take any substance from any
pesticide in a manner that may defeat the purpose of this Act.
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1920 LEGAL COMPILATION—SUPPLEMENT I
(b) EXEMPTIONS.—The penalties provided for a violation of paragraph
(1) of subsection (a) shall not apply to—
(1) any person who establishes a guaranty signed by, and con-
taining the name and address of, the registrant or person residing in
the United States from whom he purchased and received in good
faith the pesticide in the same unbroken package, to the effect that the
pesticide was lawfully registered at the time of sale and delivery to
him, and that it complies with the other requirements of this Act,
and in such case the guarantor shall be subject to the penalties
which would otherwise attach to the person holding the guaranty
under the provision of this Act;
(2) any carrier while lawfully shipping, transporting, or deliver-
ing for shipment any pesticide or device, if such carrier upon request
of any officer or employee duly designated by the Administrator shall
permit such officer or employee to copy all of its records concerning
such pesticide or device;
(3) any public official while engaged in the performance of his
official duties; •.
(4) 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
properties and from which the user does not expect to receive any
benefit in pest control from its use.
SEC. 13. STOP SALE, USE, REMOVAL AND SEIZURE.
(a) STOP SALE, ETC., ORDERS.—Whenever any pesticide or device is
found by the Administrator in any State and there is reason to believe
on the basis of inspection or tests that such pesticide or device is in vio-
lation of any of the provisions of this Act, or that such pesticide 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 device has been
canceled by a final 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 no person shall sell, use, or remove the
pesticide or device described in the order except in accordance with the
provisions of the order.
(b) SEIZURE.—Any pesticide or device that is being transported or,
having been transported, remains unsold or in original unbroken pack-
ages, or that is sold or offered for sale in any State, or that is imported
from a foreign country, shaU be liable to be proceeded against in any
district court in the district where it is found and seized for confiscation
by a process in r em for condemnation if—
(1) in the case of a pesticide—
(A) it is adulterated or misbranded;
(B) it is not registered pursuant to the provisions of section
3'
(O) its labeling fails to bear the information required by
this Act;
(D) it is not colored or discolored and such coloring or dis-
coloring is required under this Act; or
[p. 59]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1921
(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, 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.
(c) DISPOSITION AFTER CONDEMNATION.—If the 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 court
costs, shall be paid into the Treasury of the United States, but the pesticide
or device shall not be sold contrary to the provisions of this Act or the laws
of the jurisdiction in which it is sold: Provided, That upon the payments
of the costs of the condemnation proceedings and the execution and
delivery of a good and sufficient bond conditioned that the pesticide or
device shall not be sold or otherwise disposed of contrary to the provisions
of the Act or the laws of any State in which sold, the court may direct that
such pesticide or device be delivered to the owner thereof. The proceedings
of such 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.
(d) COURT COSTS, ETC.—When a decree of condemnation is entered
against the 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 pesticide or device.
SEC. U. PENALTIES.
(a) CIVIL PENALTIES.—
(1} IN GENERAL.—Any registrant, commercial pesticide applica-
tor, wholesaler, dealer, retailer, or other distributor who violates any
provision of this Act may be assessed a civil penalty by the Adminis-
trator of not more than $5,000 for each offense.
(#) PRIVATE PESTICIDE APPLICATOR.—Any private pesticide
applicator 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.
(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
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1922 LEGAL COMPILATION—SUPPLEMENT I
shall recover such amount by action in the appropriate United
States district court.
(b) CRIMINAL PENALTIES.—
(1) IN GENERAL.—Any registrant, commercial pesticide applica-
tor, wholesaler, dealer, retailer, or other distributor who knowingly
violates any provision of this Act shall be guilty of a misdemeanor
and shall on conviction be fined not more than $25,000, or imprisoned
for not more than one year, or both.
(#) PRIVATE PESTICIDE APPLICATOR.—Any private pesticide
applicator who knowingly violates any provision of this Act shall
be guilty of a misdemeanor and shall on conviction be jined not
more than $1,000, or imprisoned for not more than SO days, or both.
(3) DISCLOSURE OF INFORMATION.—Any person, who, with intent
to defraud, uses or reveals information relative to formulas of products
acquired under the authority of section 3, shall be jined not more
than $10,000, or imprisoned for not more than three years, or both.
(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.
SEC 15. INDEMNITIES.
(a) REQUIREMENT.—Ij—
(1) the Administrator notifies a registrant that he has suspended
the registration of a pesticide because such action is necessary to
prevent an imminent hazard;
(2) the registration of the pesticide is canceled as a result of a
final determination that the use of such pesticide will create an immi-
nent hazard; and
(3) any person who owned any quantity of such pesticide immed-
iately before the notice to the registrant under paragraph (1) suffered
losses by reason of suspension or cancellation of the registration,
the Administrator shall make an indemnity payment to such person.
(b) AMOUNT OF PAYMENT.—
(1) IN GENERAL.—The amount of the indemnity payment under
subsection (a) to any person shall be determined on the basis of the
cost of the pesticide owned by such person immediately before the
notice to the registrant referred to in subsection (a) (1); except that
in no event shall an indemnity payment to any person exceed the
fair market value of the pesticide owned by such person immediately
before the notice referred to in subsection (a)(l).
(2) SPECIAL RULE.—Notwithstanding any other provision of this
Act, the Administrator may provide a reasonable time for use or
other disposal of such pesticide. In determining the quantity of any
pesticide for which indemnity shall be paid under this subsection,
proper adjustment shall be made for any pesticide used or otherwise
disposed of by such owner.
SEC. 16. ADMINISTRATIVE PROCEDURE; JUDICIAL RE-
VIEW.
(a) APPLICATION OF ADMINISTRATIVE PROCEDURE ACT.—Except as
provided by subsection (b), subchapter II of chapter 5 of title 5 of the
United States Code (sec. 551 and following, relating to administrative
procedure) and chapter 7 of title 5 of the United States Code (sec. 701
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1923
and following, relating to judicial review) apply in respect oj rules, rule
making, orders, adjudication, licensing, sanctions, agency proceedings,
and agency actions (as such terms are used in subchapter II of chapter
5 and in chapter 7 of title 5 of the United States Code).
(b) JUDICIAL REVIEW.—In the case of actual controversy as to the
validity of any order issued by the Administrator following a public
hearing, any party at interest may obtain judicial review by filing in the
United States court of appeals for the circuit wherein such person resides
or IMS a place of business, within 60 days 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 Administrator or any officer designated by him for that purpose, and
thereupon the Administrator shall file in the court the record of the pro-
ceedings on which he based his order, as provided in section 2112 oj 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
order of the Administrator shall be sustained if it is supported by sub-
stantial evidence when considered on the record as a whole. 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 28 oj 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 cases filed therein pursuant to
this section.
(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.
(d) NOTICE OF JUDGMENTS.—The Administrator shall, by publication
in such manner as he may prescribe, give notice of all judgments entered
in actions instituted under the authority of this Act.
SEC. 17. IMPORTS AND EXPORTS.
(a) PESTICIDES AND DEVICES INTENDED FOR EXPORT.—Notwith-
standing any other provision of this Act, no 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.
(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.—The Secretary of the
Treasury shall notify the Administrator of the arrival of pesticides and
devices and shall deliver to the Administrator, upon his request, samples
of pesticides or devices which are being imported into the United States,
giving notice to the owner or consignee, who may appear before the
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 provisions set forth in this Act, or is otherwise
injurious to health or the environment, the pesticide or device may be
refused admission, and the Secretary of the Treasury shall refuse delivery
[p. 62]
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1924 LEGAL COMPILATION—SUPPLEMENT I
to the consignee and shall cause the destruction of any pesticide or device
refused delivery which shall not be exported by the consignee within 90
days from the date of notice of such refusal under such regulations as
the Secretary of the Treasury may prescribe: Provided, That the Secretary
of the Treasury may deliver to the consignee such pesticide or device
pending examination and decision in the matter on execution of bond for
the amount of the full invoice value of such pesticide or device, together
with the duty thereon, and on refusal to return such 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 said bond: And
provided further, That all charges for storage, cartage, and labor on
pesticide or device 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
shall, in cooperation with the Department of State and any other appro-
priate Federal agency, participate and cooperate in any international
efforts to develop improved pesticide research and regulations.
(e) REGULATIONS.—-The Secretary of the Treasury, in consultation
with the Administrator, shall prescribe regulations for the enforcement of
this section.
SEC. 18. EXEMPTION OF FEDERAL AGENCIES.
The President by executive order may exempt any Federal agency from
any provision or all provisions of this Act if he determines that emergency
conditions exist which require such exemption.
SEC. 19. 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 Administrator
shall -provide advice and assistance to the Secretary of Transportation with
respect to his functions relating to the transportation of hazardous ma-
terials under the Department of Transportation Act (49 U.S.C. 1657)
the Transportation of Explosives Act (18 U.S.C. 831-835), the Federal
Aviation Act of 1958 (49 U.S. C. 1421-1430,1472 H), and the Hazardous
Cargo Act (46 U.S.C. 170, 875, 416).
SEC. 20. RESEARCH AND MONITORING.
(a) RESEARCH.—The Administrator shall undertake research, includ-
ing research by grant or contract with other Federal agencies, universities,
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,
[p. 63]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1925
plants, and animals, as may be necessary for the implementation oj this
Act and of the national pesticide monitoring plan. Such activities shall be
carried out in cooperation with other Federal, State, and local agencies.
SEC. 21. SOLICITATION OF PUBLIC COMMENTS.
In addition to any other authority relating to public hearings and
solicitation of mews, in connection with the suspension or cancellation
of a pesticide registration or any other actions authorised 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.
SEC. 22. DELEGATION AND COOPERATION.
(a) DELEGATION.—All authority vested in the Administrator by virtue
of the provisions of this Act may with like force and effect be executed by
such employees of the Environmental Protection Agency as the Adminis-
trator may designate for the purpose.
(b) COOPERATION.—The Administrator shall cooperate with the
Department of Agriculture, any other 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.
SEC. 23. 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 pesticide applicators con-
sistent with the standards which he prescribes.
(b) CONTRACTS FOR TRAINING.—In addition, the Administrator is
authorised to enter into contracts with Federal or State agencies for the
purpose of encouraging the training of certified pesticide applicators.
SEC. 24. AUTHORITY OF 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 or restrict by license or permit the use
of a pesticide registered for general use;
(6) 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
(c) a State may assist the Administrator in the registration of pesticides
formulated for intrastate distribution to meet specific local needs ij that
State is certified by the Administrator as capable of exercising adequate
controls.
SEC. 25. AUTHORITY OF ADMINISTRATOR.
(a) REGULATIONS.—The Administrator is authorized to prescribe
regulations to carry out the provisions of this Act. Such regulations shall
take into account the difference in concept and usage between various
classes of pesticides. r „. -,
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1926 LEGAL COMPILATION—SUPPLEMENT I
(6) EXEMPTION OF PESTICIDES.—The Administrator may exempt
from the requirements of this Act by regulation any pesticide which he
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 Administrator, after notice and oppor-
tunity for hearing, is authorized—
(1) to declare a pest any form of plant or animal life (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 health
or the environment;
(2) to determine any pesticide which contains any substance or
substances in quantities highly toxic to man;
(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 adulte 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 that any class of devices shall be subject to this Act
if he determines that the application of this Act in respect of such
class is necessary to effectuate the purposes of this Act;
(5) to prescribe regulations requiring any pesticide to be colored
or discolored if he determines that such requirement is feasible and is
necessary for the protection of health and the environment; and
(6) to determine and establish suitable names to be used in the
ingredient statement.
SEC. 26. SEVERAB1L1TY.
If any provision of this Act or the application thereof to any person or
circumstance is held invalid, the 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 sever able.
SEC. 27. AUTHORIZATION FOR APPROPRIATIONS.
There is authorized to be appropriated such sums as may be necessary to
carry out the provisions of this Act for each fiscal year ending June 30,
1972, June 30, 1973, and'June 30, 1974. The amounts authorized to be
appropriated for any fiscal year ending after June SO, 1974, shall be the
sums hereafter provided by law. .
FEDERAL HAZARDOUS SUBSTANCES ACT
*******
DEFINITIONS
SEC. 2. For the purposes of this Act—
(a) * * *
*******
[p. 65]
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PESTICIDES — STATUTES AND LEGISLATIVE HISTORY 1927
(f) The term "hazardous substance" means:
* * *
2. The term "hazardous substance" shall not apply to [eco-
nomic poisons] pesticides subject to the Federal Insecticide,
Fungicide, and Rodenticide Act, nor to foods, drugs, and cos-
metics 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 aiticle 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
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 denned in section
2(f) of the Federal Hazardous Substances Act (15 U.S.C. 1261 (f));
(B) [an economic poison] a pesticide as that term is denned in
section 2a of the Federal Insecticide, Fungicide, and Rodenticide
Act (7 U.S.C. 135(a));
FEDERAL FOOD, DRUG, AND COSMETIC ACT
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., sees. 135-135&) as now in force or as hereafter amended,
and which is used in the production, storage, or transportation of raw
agricultural commodities.
* * * * * * *
[p. 66]
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1928 LEGAL COMPILATION—SUPPLEMENT I
CHAPTER IV—FOOD
TOLERANCES FOR PESTICIDE CHEMICALS IN OR ON RAW AGRICULTURAL
COMMODITIES
SEC. 408. (a) * * *
* * * * * * *
(d)(l) 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 Eodenticide 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; * * *
*******
(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 exempt-
ing it from the necessity of a tolerance. Thirty days alter publication
of 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 pro-
posal, 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 under-
lying data and a statement of the reasons or basis for the recommenda-
tions. 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 certi-
fication, 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 registra-
[p. 67]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1929
tion 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)(l)
with respect to a pesticide chemical which constitutes, or is an ingredi-
ent of, such [economic poison] pesticide, shall, within thirty days or
within sixty days if tipon 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.
In the event that the Secretary of Agriculture takes the action de-
scribed in clause (2) of the preceding sentence, the person requesting
the certification, within one week after receiving the proposed certifi-
cation, 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 certifica-
tion or the parts thereof objected to; or (C) request both such certifica-
tion 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.
****** *
[p. 68]
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1930 LEGAL COMPILATION—SUPPLEMENT I
ADDITIONAL VIEWS OF CONGRESSMAN THOMAS S. FOLEY
Many of the amendments to the FIFRA which the committee has
reported in H.R. 10729 are needed and salutory. In my judgment,
however, the bill is so defective in several significant aspects that I
find it difficult to support the proposed legislation in its present form.
Indemnities, Section 15, page 47—A key element of the committee
bill to which I object is a far-reaching extension of indemnities to
manufacturers, retailers, and users for the cost of pesticides and de-
vices when registrations are suspended or cancelled. In addition to
the burden of paying indemnity holders of materials on which registra-
tion is suspended or cancelled, the Administrator is required to
arrange for the disposal of the material at the option of the holder.
I do not believe that it is wise to undertake so broad and farreaching
a policy of indemnity for the imposition of government prohibitions on
hazardous substances. I find it particularly difficult to support this
section of the bill when the committee rejected what seemed to me to
be an eminently reasonable limitation on the amount of pesticides
or devices indemnity might be claimed; namely, no more than a
12-month supply.
Restriction on Research Data, Section 3(c)(I)(d) page 17 provides
that data support of an application shall not, without permission of
the applicant, be considered by the Administrator in support of any
other application for registration. The effect of this provision is to
enable an applicant to restrict the use of research and other data
provided by him to the Administrator as a means of slowing or blocking
subsequent registrations of other products. It is argued by the pro-
ponents of this section that some reward should be given to research
investment in order to stimulate and encourage such investment.
While I do not quarrel with the need to maintain continued research
in pesticides and other agricultural chemicals, it seems to me that
this is a clumsy, inefficient, and expensive way in which to provide
such stimulation. The Administrator, in effect, is asked to ignore
perhaps clearly defined and established data and, at the very least,
necessitate an expensive re-invention of the wheel through duplicative
research or data gathering efforts which are totally wasteful and other-
wise unnecessary. I am concerned that this technique may be a prece-
dent for other efforts to establish quasi-patents on licenses for manu-
factured products when Congress has decided not to grant more
direct protection.
Judicial Review, Section 16(b)—I agree with the objection of my
colleague, John Dow, that the committee has undoubtedly sought to
restrict the access of parties to judicial review following a public hear-
ing on the refusal to register, or the cancellation or suspension of
pesticides or devices. It seems to me this is directed against the inter-
vention of environmental groups or public interest parties in the judi-
cial review process. Considering the obvious national interest in
appropriate regulation of pesticides and materials potentially hazard-
[p. 69]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1931
ous to man or to the environment, I see no justification for this effort
to so restrict access to judicial review.
Record-keeping, Section 11 (a)—In an overly enthusiastic effort to
avoid burdendome restrictions on farmers, the committee adopted an
amendment which prohibits the Administrator from requiring the
maintenance or filing of records by private pesticide users, even when
restricted use pesticides are involved. This amendment is typical of
many adopted by the committee circumscribing the authority of the
Administrator so severely that efficient and effective administration of
the Act may be extraordinarily difficult. I fear also that if the Adminis-
trator is barred from imposing even the most minimal record-keeping
requirements on private pesticide users, it will be more difficult to
obtain registration in some cases, or the conditions under which
restricted use of pesticides or devices may be applied will be controlled
by regulation in other and more burdensome ways. Despite the com-
mittee's good intentions toward farmers, I feel that it will be the
farmer users who suffer if this provision remains in the bill.
Authority of States—Section 24—The committee accepted an amend-
ment which authorizes the States to regulate the sale or use of any
pesticide or device within the State if such State regulation does not
permit the sale or use prohibited by the Act. The Amendment also
forbids the State to "restrict by license or permit the use of a pesticide
registered for general use, . . ."
Pesticides are to be classified as "restricted use" under this bill
if they are acutely toxic, either dermally or by inhalation, or if they
may cause substantial adverse effects on the environment. For over 25
year, States have restricted "general use" pesticides which do not fit
the criteria of the two hazards listed above. These restrictions relate
to local conditions such as climate, cropping practices, population
density, soils, and pest populations. Their purpose is to protect sus-
ceptible crops and ornamentals, pollinating insects, animals, and people.
The application of this amendment will apparently preempt the
authority of States to restrict otherwise "general use" pesticides for
this purpose. This amendment will do violence to many effective
State pesticide programs and restrict the ability of States to apply
reasonable restrictions in meeting particular needs created by local
conditions. It sharply restricts needed flexibility of administration in
cooperation between the Federal and State programs and serves no
valid purpose whatsoever.
There are other aspects of this bill with which I find myself in
disagreement. While I recognize the long and difficult task that the
committee undertook in updating Federal law in this critical and
complex area, I believe that there is an urgent need to correct these
and other deficiencies of the bill if an efficient and workable program
is to be developed which can balance the needs of the economy with
the essential protection of our natural environment. I hope that hi
consideration of the bill by the House corrective amendments will
be adopted.
THOMAS S. FOLEY,
Member of Congress.
[p. 70]
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1932 LEGAL COMPILATION—SUPPLEMENT I
ADDITIONAL VIEWS OF HON. JOHN G. DOW
INTRODUCTION
The question that must be asked by the reviewer of the amendments
to the Federal Insecticide, Fungicide, and Eodenticide Act is whether
the changes in H.R. 10729 create a reasonable and effective law. In the
months of testimony before the Agriculture Committee on pesticides
many points of view were heard. Yet we did not have the opportunity
to listen to more than a handful of entomologists tell us that the use of
pesticides may destroy the ecological balance in natitie, that plants
themselves become weakened by successive applications, and that
sprays used in our agricultural fields are dangerous to life. We did not
hear, as the Government Operations Committee did, that some au-
thorities put the number of pesticide poisonings to people in the U.S.
at 50,000 annually.
A report issued on Monday, September 20th, by a group of scientists
chosen by the Environmental Protection Agency said that DDT
presents "a substantial threat to the quality of the human environ-
ment through widespread damage to some nontaiget organisms."
This bill is the Committee's response to the recognized need both to
register the pesticides and to restrict or control their use. In my view
H.R. 10729 (1) fails to establish a balanced approach to the problem
of pesticides, (2) limits disclosure of information about the pesticides,
and (3) requires that the EPA, rather than the manufacturer, assume
the burden of proving the pesticide to have a "substantial adverse
effect", Sec. 3 Registration of Pesticides (c)(5)(C) p. 19.
The present Law, the Federal Insecticide, Fungicide, and Rodenti-
cide Act (FIFRA), either allows or disallows the pesticide sought to be
registered. FIFRA's strength lies in its approach which requires the
manufacturer to label his product with directions for use and with a
warning statement. Under FIFRA the Administrator must be assured
that the article warrants the manufacturer's proposed claims based on
the statement submitted by the applicant. If he is not satisfied, the
Administrator denies registration. When he finds that his action is
necessary to prevent an imminent hazard to the public, the Adminis-
trator may suspend the registration of the pesticide. The Administrator
is not unduly limited in his ability to disclose information surrounding
the registration of the pesticide, but is properly constrained from
releasing data on. the business records and documents which he may
require under the Act (FIFRA).
H.R. 10729 substantially weakens the clear-cut approach incor-
porated in present law without providing adequate safeguards. In
its reluctance to treat pesticides in a manner similar to prescription
drugs, which are controlled over the counter, the bill fails to set up
adequate mechanisms for registration and use, relying on a loosely
drawn procedure for licensing applicators.
[p. 71]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1933
ANALYSIS
H.R. 10729, in my view, effectively reduces the control of the
Environmental Protection Agency (EPA) through several devices
which must be separately analyzed.
1. Information submitted by the applicant is subject to
restrictions imposed by the applicant himself.
Under Sec. 3 Registration of Pesticides. (c)(l)(D) p. 17, "data sub-
mitted in support of an application shall not, without permission of
the applicant (emphasis added), be considered by the Administrator
in support of any other application for registration."
Under sec. 10. Protection of Trade Sections and Other Information,
p. 36, concerning application form, the applicant may "clearly mark
any portions thereof which in his opinion are trade secrets or commer-
cial or financial information."
As a result of these sections the applicant is in a position to make the
original classification on the confidentiality of the information. The
EPA Administrator's decision on which data may be disclosed is in
effect made for him by the applicant.
While it can be argued that the Administrator under the following
sub-section on disclosure, sec. 10(6) p. 36, may exercise his "judge-
ment" on the release of information, the fact is that the applicant's
power to classify is sufficiently strong to limit the flow of information
surrounding the application to a mere trickle and successfully inhibit
access to data which is not subject to patent laws and which should
be available to the public.
2. The burden of proving that a pesticide represents a sub-
stantial environmental impact has been shifted to the Ad-
ministrator.
The registration procedure requires a statement of (A) the name and
address; (B) the name of the pesticide; (C) a complete copy of the
labeling, statement of all claims, directions for use; (D) if requested
(emphasis added), a full description of tests; (E) the complete formula;
and (F) a request that the pesticide be classified for general or re-
stricted use. This procedure fails to sustain the burden of proof which
should rest fully on the applicant to prove that the pesticide will per-
form without substantial adverse effect on the environment. The plac-
ing of this responsibility on the Administrator under sec. 3(c)(5), the
approval mechanism on p. 19 of the bill, gives the EPA the burden
of finding that the product sought to be registered is environmentally
unsound.
The shoe should be on the other foot. The responsibility for the
protection of our environment is as much a burden of the manufacturer
as it is a Federal function of the EPA. Until the requirements are
spelled out in the registration process the burden will not rest on both
parties as it must when such a critical factor as our environmental
health is at stake.
3. Judicial review following a public hearing is narrowly
limited to "any party at interest."
The language "any party at interest," sec. 16, Administrative
Review; Suspension (6), p. 49, was changed during committee pro-
ceedings from the earlier language which read: "any person adversly
[p. 72]
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1934 LEGAL COMPILATION—SUPPLEMENT I
affected." This is an attempt to narrow the scope of review to registra-
tion applicants and preclude the intervention of outside parties who
wish to carry the burden of proving that they are adversly affected. To
attempt by statute to eliminate this avenue for a class action aftei the
case of Environmental Defense Fund v. Hardin, 428 F. 2d 1093, should
not be allowed by the House when this bill is considered.
Nowhere in the bill are there provisions which would allow any
party the opportunity to request public hearings unless they are appli-
cants for registration of pesticides. This effectively excludes such
parties not only from public hearings but also court appeals.
4. Judicial Review of orders of suspensions may be main-
tained simultaneously with any administrative review.
Under sec. 6. Administrative Review; Suspension, (c)(3) p. 28, the
district court is empowered to take immediate review of an order of
suspension issued by the Administrator. The court action is limited
under the language of the bill starting on line 13, "solely to determine
whether the order of suspension was arbitrary, capricous or an abuse of
discretion . . ."I submit that the court, which is given the power to
move at the same time that the administrative review is proceeding
will be involved in substantive issues before these issues have been
fully formulated by the administrative review. The provision would
run counter to the established precedent of administrative law which
is that judicial action follows after administrative remedies have been
exhuasted. This provision well exemplifies a strong tendency in H.R.
10729 to place many procedural hurdles in the way of the EPA
Administrator during the course of his regulatory functions.
5. The bill implies that the benefits from the use of a
pesticide can offset its injuriousness.
The definition of "protect health and environment" under Sec. 2.
Definitions, p. 15 is particularly strained when it seeks "to take into
account the public interest, including benefits from the use of the
pesticide."
In another instance, under sec. 3, Registration of Pesticides, (c)(5),
p. 19, the bill provides that the Administrator shafi not make any lack
of essentiality a criterion for denying registration of any pesticide. (Em-
phasis added.) This raises questions about the purpose of pesticides
proposed and also about the purpose of the bill itself.
The foregoing two phrases taken together cannot be construed in
any way to establish a balanced system of control. They are not in
keeping with the National Environmental Policy Act of 1969, Public
Law 91-190. In that act Congress established the policy that the
widest range of beneficial uses of the environment without degradation,
risk to health or safety together must be balanced with population and
resource use. It did not suggest, as the new bill before us does, that
questionable aspects of pesticides are to be given consequence.
I commend the committee for sincerely assuming the difficult task
of weighing the various interests who came before it during considera-
tion of this legislation. In this instance, however, there is no public
interest to be served by requiring the Administrator to recognize
negative factors in the balance of control and disregard a basic con-
cept, essentiality, in his decision on registration.
[p. 73]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1935
6. Additional major areas which are of questionable value
when compared with the present law (FIFRA) are noted
below.
(a) Sec. 15. Indemnities, p. 47. The Administrator is required to
indemnify registrants whose registrations are suspended or canceled
because of action taken to prevent imminent hazards. The section
also applies to persons owning any quantity of the pesticide. The
amount of payment is not limited in time and is based on cost of the
pesticide before notice to the registrant.
I fail to comprehend any basis for compensating any registrant
whose product is determined to create an "imminent hazard." I can
only relate to my earlier argument that the burden of proof is
improperly resting on the Administrator as this bill is written. Any
compensation mechanism which takes care of these producers who
did not anticipate the environmental impact of their pesticide is
insurance for their failure to maintain up-to-date research, and should
be eliminated.
(b) Sec. 6(d). Public Hearings and Scientific Review, p. 28. After
much discussion in the committee the decision was reached to require
all relevant questions of scientific fact arising during a public hearing
to be referred to a committee of the National Academy of Sciences.
This mechanism is to be distinguished from current practice under
FIFRA whereby the Administrator chooses a panel of experts from a
list submitted to him by the National Academy of Sciences. This
adherence to the Academy, which is made exclusive in the new bill,
has been the subject of criticism by environmentalists who sense in it
an excessive institutional restraint.
The new section improves the present procedure somewhat by
requiring the scientific review to be part and parcel of the hearing
record. However, it may still be used as a delaying tactic since it
prevents implementation of the Administrator's order unless an
"imminent hazard" is involved.
(c) Sec. 18. Exemption of Federal Agencies, p. 52. This section would
enable the President to exempt Federal Agencies for any or all of the
provisions of the act if he declared that emergency conditions exist.
FIFRA, the present law, has no such exemption.
The vagueness of the language conceivably permits controversial
emergency situations to be dealt with in spite of their critical effect
on the environment. Such occasions have arisen this year. In New
York State aerial spraying programs with the insecticide carbaryl
or Sevin were extensively carried out this spring without prior sub-
mission of a final environmental impact statement to the Council on
Environmental Quality as required by Public Law 91-190. What
constituted an emergency for some in this instance was a serious
evasion of the provisions of Public Law 91-190 for others. An insecti-
cide was indiscriminately sprayed in spite of substantial evidence
that the insecticide had serious ecological effects. Sec. 18 is a loophole
with every potential for repeated instances of the Sevin expeiience.
At the present time, the President is empowered by law to act in
national emergencies. This provision, which opens new and possibly
unnecessary avenues, should be deleted.
[p- 74]
-------
1936 LEGAL COMPILATION—SUPPLEMENT I
I am prepared to offer amendments to the bill, H.R. 10729, based
on certain of these comments. 1 cannot support the bill as it stands.
It is essentially weaker than the present law and not nearly as pro-
tective of our environment as such a bill ought to be in this enlightened
year of 1971.
JOHN G. Dow,
Member of Congress.
[p. 75]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1937
ADDITIONAL VIEWS OF CONGRESSMAN JOHN MELCHEE
H.R. 10729, the Federal Insecticide Act of 1971, fails to close a
loophole where chemicals on imported foodstuffs are used that may
have harmful effects on consumers. We depend on domestic food
producers, or livestock, not to use chemicals on their products that
science has found to be injurious to the health of consumers. H.R.
10729 continues this requirement for domestic producers, but fails to
apply the same safeguard to food products that are imported into
the U.S.
With the everwidening use of chemicals hi food production, there is
increasing need to protect the wholesomeness of dairy, fruit, vegetable,
cereal, or meat products by avoiding application of chemicals that
would leave residues injurious to health. It is fraudulent to tolerate a
double standard between imported and domestic food supplies.
Chemical pesticides or herbicides banned for use on domestic food
products because their residue would be injurious to consumers,
should not be allowed on imported foodstuffs. In most cases, there is
no way for the consumer to know which products are imported and
which are of domestic origin. But in neither case should we take the
chance with the health of our consuming public.
Testimony before the Committee from Food and Drug Administra-
tion officials outlining surveillance for harmful lesidues was not
reassuring. The testing of chemical residues on ready-to-eat meats,
poultry, and fish was haphazard and raised doubts as tc any effective
control on residues on imported foods. As a result, the Committee
approved a section in the bill requiring producers of imported foods
to follow the same procedures as we do in this country to avoid
contamination with toxic chemicals. (A copy of this section follows
my views.) The State Department objected saying it would interfere
with good relations with countries that export foods to us. The
Department of Agriculture objected, stating it would interfere with
agricultural trade. The Environmental Protection Agency, in sym-
pathy with these two Cabinet Departments, also objected. But obvi-
ously the health of our consumers should be paramount to the specula-
tion conjured by the two Departments which have little basis for
their arguments. Their pale objections based on anemic judgments
should not be allowed to jeopardize the health of American consumers.
Exporting countries are interested in the health of their own consumers
as well as the health of their customers abroad; and when our scientists
determine that a chemical leaves a harmful residue in foodstuffs, this
fact should be noted and observed by all countries. It is of mutual
beneficial interest which is on a level higher than mundane trade
policy or profits.
Nevertheless, the pressure applied by the Administration through
the State Department and the Department of Agriculture caused the
deletion from the bill of what I believe to be 8 very important section
to apply the same standards to imported food products that we apply
to domestic supplies.
[p. 76]
-------
1938 LEGAL COMPILATION—SUPPLEMENT I
The argument is made that consumers have adequate protection
through the surveillance of the Food and Drug Administration and
the Department of Agriculture. That is not the case. Very little
sampling is dene. I am including at the end of my views tables pro-
vided by the Food and Drug Administration and by the Department
of Agriculture. Examination of their tables prompts the following
conclusions:
(1) In the case of meat, fish and poultry, residues for only 13
pesticide compounds in a very few samples are examined. These are
pesticides available in this country, but banned fcr use in production
of these foods or allowed only with strict limitatit ns found to be safe.
(2) The incidence percent end the average parts per million are
greater in the imported food samples than from the domestic products.
Improvement in the presence and amounts of residues found in
domestic food products as compared to imported food products in the
years 1967, 1968 and 1969 was much better on the domestic side as
compared to the imported products. This argues strongly for the
banning or limiting uses of the cbjectionable pesticides as has been
done in the U.S. for our domestic producers with a like extension to all
producers in other countries who wish to sell products in this country.
(3) Residue sampling is decreasing. The bulwark of consumer pro-
tection continues to be reliance on producer compliance not to use
banned or limited use chemicals. Even if sampling were increased a
hundredfold, it would still only be spot checks which without com-
pliance by producers on banned chemicals offer little assurance to
consumers that an adequate job was being done to guard against
harmful residues.
(4) There was very little sampling done in 1970, and rejections of
shipments of imported meat because of residues in excess of tolerance
levels only totaled 23 for the year. However, imports showed the
incidence of benzene hexachloride, DDT, dieldrin, and heptachlor
cpoxide residues are all on the increase indicating a much more
extensive use by the producers of the countries of the imported meat.
Those chemicals are all banned or require strict limitations on use for
livestock in this country.
The only valid conclusion in the face of these facts is that H.R.
10729 can only assure consumers adequate protection from harmful
residues from pesticides or herbicides when every means is taken to
prevent the use of these chemicals on food products consumed by our
people. Not to apply these same standards based on scientific evalua-
tions to imported foods may give us, as our State and Agriculture
Departments have implied, an open door trade policy, but it is an
open door invitation to abuse imported food supplies inviting residues
that may harm the health of untold numbers of our people. There can
be no justification in taking that chance. Decisions to limit chemicals
used by our domestic producers are not decisions lightly made but are
made after long and careful study and evaluation. The results should
not be ignored by any producers anywhere in the world. Their health
and our health is at stake. If the House does not include a section
such as Section 17(e) in the Committee print or similar protection,
H.R. 10729 has a serious, damaging flaw.
JOHN MELCHER,
Member of Congress.
[p- 77]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1939
(Committee Print No. 3, dated July 13, 1971, was used by the com-
mittee in the preparation of H.R. 10729. Section 17(e) of Committee
Print No. 3 is as follows:)
"(e) IMPORTATION OF AGRICULTURAL PRODUCTS.—Notwithstand-
ing any other provision of law, whenever the use of any pesticide in
connection with the producing, processing, or handling of any agri-
cultural commodity is prohibited or limited under any Federal statute,
the President shall prohibit importation of such commodity from any
country if he determines that—
"(1) such country does not have at least equal restrictions with
respect to the use of such pesticide, and
"(2) such commodity is produced in substantial quantities in
the continental United States.
The provisions (including penalties and forfeitures) of section 545 of
title 18, United States Code, shall apply in enforcing the provisions of
this subsection. The President may prescribe rules and regulations to
carry out the purposes of this subsection, including but not limited to,
provisions for the deferral of the effective date thereof with respect to
particular pesticides or agricultural commodities for not more than
three years.
PESTICIDE RESIDUES IN MEATS (FAT BASIS) FISCAL YEARS 1965-69 (BEEF, PORK. ETC.)
[Total diet samples—ready-to-eat food, meat, fish, and poultry (coast beef, ground beef, pork chops, chicken, fish fillets.
eggs, frankfurters, etc.)]
Domestic samples, 12,146 Import samples,' 3.674
Specific compound
DDT2
DDE2
TDE2
Dieldrin
Heptachlor epoxide 3 -
Heptachlors
Lindane
BHC
Aldrin
Endrm _
Methoxychlor
Toxaphene
MCP.. .
Incidence
percent
75 4
31 3
421.6
9,6 '
6 6
7 20 2
1
.4
1 8
1.4
»11.8
Average
p.p.m.
0.33
.05
.02
.01
.01
.02
0)
$
.01
.02
Incidence
percent
83.9
46.7
10.2
1.1
12.4
'63.2
' 1.4
1.0
.6
.1
'45.1
Average
p.p.m.
0.41
.10
.01
&
.01
.15
<">
V>
(5)
.»
Total diet samples
(meat, fish, and poultry),
134 composites
Incidence
percent
88.1
92.5
80.6
61.9
53.7
3.0
19.4
50.0
.7
1.5
1.5
.7
Average
p.p.m.
0.182
.168
.092
.026
.016
.&
.018
(«)
(')
.004
(')
i Import samples for fiscal years 1967, 1968, and 1969 only.
2 DDT includes DDE and TDE.
a Heptachlor includes hepiachlor epoxide except fiscal year 1967 (domestic samples only).
« Fiscal year 1967 only, 3,098 domestic samples, 1,901 import samples.
» Less than 0.005 p.p m.
« Less than 0.001 p.p.m.
' Fiscal year 1968 and 1969 only, 4,012 domestic samples and 1.773 import samples.
s Fiscal year 1965,1966, and 1967 only, 8,134 domestic samples.
Source: Food and Drug Administration.
NUMBER OF SAMPLES
Domestic
Imported
Range (parts per million)
1965 1966 1967 1968 1969 Total 1967 1968 1969 Total
Methyl chlorophenoxy acetic
acid (MCP):
None found 3,200
Trace to 010.
0.11 to 0.50...
0.51 to 1.00—
1.01 to 1.50...
1.51 to 2.00...
2.01 to 3.00—
Above 3.00--.
51
1
0
0
0
0
0
Total.
1,614
134
35
1
0
0
0
0
2,357
621
90
15
6
2
3
4
3,252 1,784 3,098
7,171
806
126
16
6
2
3
4
1,044
564
214
52
14
5
3
5
0 8,134 1,901
1,044
564
214
52
14
5
3
5
1,901
[p. 78]
-------
1940
LEGAL COMPILATION—SUPPLEMENT I
NUMBER OF SAMPLES—Continued
Domestic
Range PPM
Aldrin:
None found
Trace to 0.10
0.11 to 0.50
0.51 to 0.00
1 01 to 1 50
1.51 to 2.00
2.01 to 3.00
Above 3 00
Total
Benzene hexaehloride (BHC):
None found
Trace to 0.10
O.'ll to 0.50
0.51 to 1.00
1.01 to 1.50
1.51 to 2.00.. ..
2 01 to 3 00
Above 3 00
Total
1965
3,252
0
0
0
0
0
0
0
3,252
1966
1,783
0
0
1
0
0
0
0
1,784
1967
3,098
0
0
0
0
0
0
0
3,098
1968
2,709
3
1
0
0
0
0
0
2,713
2,070
576
49
10
4
2
2
0
2,713
1969
1,298
1
0
0
0
0
0
0
1,299
1,130
146
17
3
1
0
1
1
1,299
Total
2,110
4
1
1
0
0
0
0
2,146
3,200
722
66
13
2
3
1
4,012
Domestic
Range PPM
ODT:
None found
Trace to 0.10
Oil to 050
0.51 to 1 00.
1.01 to 1.50
1.51 to 2.00.
2 01 to 3 00
Above 3 00
Total
Dieldrin:
None found
Trace to 0.10
0.11 to 0.50... .... ..
0 51 to 1 00
1.01 to 1.50.. ..
1 51 to 2 00
2.01 to 3 00.. ..
Above 3 00
Total ..
Endrin:
None found
Trace to 0.10. ..
Oil to 050
0 51 to 1 00
1 01 to 1 50
1.51 to 2.00
2.01 to 3.00
Above 3.00
Total .... .... .
Heptachlor:
None found
Trace to 0.10
0.11 to 0.50.
0.51 to 1.00
1.01 to 1.50
1.51 to 2.00.. .... .
2.01 to 3.00
Above 3 00
Total ,.
1965
1,148
1,245
435
203
67
70
41
43
3,252
3,220
30
2
0
0
0
0
0
3,252
3,248
2
2
0
0
0
0
0
3,252
3,241
11
0
0
0
0
0
0
3,252
1966
568
513
386
129
59
38
42
49
1,784
1,713
50
20
0
1
0
0
0
1,784
1,782
0
2
0
0
0
0
0
1,784
1,709
50
25
0
0
0
0
0
1,784
1967
644
925
1,106
241
76
25
38
43
3,098
1,054
827
1,186
13
4
8
2
4
3,098
3,096
1
1
0
0
0
0
0
3,098
3,020
74
4
0
0
0
0
0
3,098
1968
472
728
1,080
253
60
43
37
40
2,713
1,561
963
181
6
1
1
0
0
2,713
2,692
17
4
0
0
0
0
0
2,713
1,970
628
109
5
1
0
0
0
2,713
1969
161
383
572
103
43
13
20
4
1,299
798
434
63
3
0
1
0
0
1,299
1,279
20
0
0
0
0
0
0
1,299
1,044
213
42
0
0
0
0
0
1,299
Total
2,993
3,794
3,579
929
305
189
178
179
12, 146
8,346
2,304
1,452
22
6
10
2
4
12, 146
12, 097
40
9
0
0
0
0
0
12, 146
10,984
976
180
5
1
0
0
0
12, U6
1967
300
522
638
236
78
39
50
38
1,901
1,017
481
366
29
3
3
0
2
1,901
1,886
8
6
1
0
0
0
0
1,901
1,896
5
0
0
0
0
0
0
1,901
Imported
1968
1,264
9
1
0
0
0
0
0
1,274
446
370
382
60
11
0
2
3
1,274
1969
484
13
2
0
0
0
0
0
499
206
178
98
14
3
0
0
0
499
Total
1,748
22
3
0
0
0
0
0
1,773
652
548
480
74
14
0
2
3
1,773
Imported
1968
216
365
499
113
30
22
16
13
1,274
636
267
326
38
4
3
0
0
1,274
1,271
3
0
0
0
0
0
0
1,274
1,243
13
18
0
0
0
0
0
1,274
1969
76
129
201
45
24
6
6
12
499
304
139
52
4
0
0
0
0
499
481
17
1
0
0
0
0
0
499
494
2
3
0
0
0
0
0
499
[P-
Total
592
1,016
1,338
394
132
67
72
63
3,674
1,957
8W
744
71
7
6
0
2
3,674
3,638
28
7
1
0
0
0
0
3,674
3,633
20
21
0
0
0
0
0
3,674
79]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1941
NUMBER OF SAMPLES—Continued
Domestic
Range PPM
Lindane:
None found
Trace to 0.10 .. .
0.11 to 0.50
0.51 to 1.00
1.01 to 1.50
1.51 to 2.00. . ...
2.01 to 3.00
Above 3.00
Total
Toxaphene:
None found.
Trace to 0.10
0.11 to 0.50.
0.51 to 1.00. ...
1.01 to 1.50
1.51 to 2.00
2.01 to 3.00
Above 3.00. .. _
Total
Heptachlorepoxide:
None found-
Trace to 0.10 .
0.11 to 0.50
0.51 to 1 00
1.01 to 1.50
1.51 to 2.00
2.01 to 3.00
Above 3.00. . . -
Total
Methoxychlor:
None found
Trace to 0,10
0.11 to 0.50
0.51 to 1.00
1.0! to 1.50
1.51 to 2.00
2.01 to 3.00
Above 3.00 .
Total
1965
3,202
26
15
6
1
0
2
0
3,252
-- 3,104
56
45
23
5
12
4
3
3,252
3 157
46
21
19
4
3
2
0
3 252
1966
1,680
56
34
6
3
2
3
0
1,784
1,773
3
4
3
0
1
0
0
1,784
1,780
1
1
0
0
2
0
0
1,784
1967
2,831
217
40
5
4
1
0
0
3,098
3,093
0
2
1
0
0
2
0
3,098
2,429
600
60
3
2
0
2
2
3,098
3,076
8
9
4
0
0
1
0
3,098
1968
2,462
202
43
5
1
0
0
0
2,713
2,709
0
0
0
0
0
1
3
2,713
0
0
0
0
0
0
0
0
0
2,658
6
38
10
0
0
0
1
2,713
1969
1,171
106
22
0
0
0
0
0
1,299
1,298
1
0
0
0
0
0
0
1,299
0
0
0
0
0
0
0
0
0
1,260
16
23
0
0
0
0
0
1,299
Total
11,346
607
154
22
9
3
5
0
12,146
11,977
60
51
27
5
13
7
6
12, 146
2,429
600
60
3
2
0
2
2
3,098
11,931
77
92
33
4
5
3
1
12, 146
1967
1,747
116
29
4
4
1
0
0
1,901
1,899
0
0
0
0
0
0
2
1,901
1,714
161
26
0
0
0
0
0
1,901
1,888
8
3
1
1
0
0
0
1,901
Imported
1968
1,091
144
38
1
0
0
0
0
1,274
1,274
0
0
0
0
0
0
0
1,274
1,161
94
19
0
0
0
0
0
1,274
1,271
1
0
2
0
0
0
0
1,274
Source: Food and Drug Administration.
1969
382
104
13
0
0
0
0
0
499
499
0
0
0
0
0
0
0
499
426
60
13
0
0
0
0
0
499
492
3
3
1
0
0
0
0
499
[P-
Total
3,220
364
80
5
4
1
0
0
3,674
3,672
0
0
0
0
0
0
2
3,674
3,301
315
58
0
0
0
0
0
3,674
3,651
12
6
4
1
0
0
0
3,674
80]
-------
1942
LEGAL COMPILATION—SUPPLEMENT I
PESTICIDE RESIDUES IN IMPORTED MEATS, CALENDAR YEARS 1967-70 (BEEF, PORK, SWINE. SHEEP)
[Number of samples!
Range (parts pet million)
DDT
001 to 010
Oil toOSO
051 tol -
1 01 to 1 50
1 51 to2 - - .-
2 01 to 2 50
2 51 to 3
3 01 to 3 50
3 51 to 4
4 01 to 4 50
4 51 to 5
5 01 to 6
6 01 to 7
7 01 to 8
8 01 to 10
10 to 15
Total samples in violation
DIELDRIN
001 to 010
0 11 to 050 -
0 51 to 1
1 01 to 1 50
1 51 to 2
2 oi to 2 50
2 51 to 3
301 to 3 50
3 51 to 4 -.- ---
4 01 to 4 50
4 51 to 5
501 to 6 -
6 01 to 7
7 01 to 8 - - -- -- -
8 01 to 10
100 to 15 - -
BENZENE HEXACHLORIDE
001 to 010 -
Oil to 050
051 to 1
1 01 to 1 50
1 51 to 2
2 01 to 2 50
2 51 to 3
3 01 to 3 50
3 51 to 4
4 01 to 4 50
4 51 to 5
5.01 to 6 . -
6 01 to 7
7 01 to 8 -.
8 01 to 10
100 to 15 . . ---
15 0 and over - -
Total positives . ...
Total samples in violation
1967
1,928
112
413
534
196
86
51
27
19
13
5
6 .. .
1
6
3 ..
2
1 .. .
363
7
302
1,928
112
467
370
29
2
3
1 ...
1
873
174
302
1,928
112
540
290
50
15
6
4
1
1
1
1
2 ....
911
173
302
1968
1,414
23
266
498
116
32
20
9
10
2
5
2
1
961
1
377
1,414
23
334
414
39
4 ...
2 .
793
193
377
1,414
23
508
423
77
12
2
2
2
1
1 ..
1 . .
1,029
263
377
1969
1,033
18
299
438
95
36
9
2
5
3
4
5
3
1 ..
2 ....
2
J
906
7
107
1,033
18
411
95
5 ....
511
11
107
1,033
18
435
188
15
4
1
1
644
64
107
1970
995
26
333
453
85
14
2
4
5
3
1
1
2
903
2
77
995
26
592
42
634
21
77
995
26
523
200
4
1
728
68
77
[p. 81]
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PESTICIDES — STATUTES AND LEGISLATIVE HISTORY
1943
PESTICIDE RESIDUES IN IMPORTED MEATS, CALENDAR YEARS 1967-70 (BEEF, PORK, SWINE, SHEEP)-Continued
[Number of samples)
Range (parts per million)
1967
1968
1969
1970
HEPTACHLOR EPOXIDE
Total samples analyzed.
1,928
1,414
1,033
995
Nonefound 112 23 18 26
O.OltoO.10 137 127 121 203
O.lltoO.50 26 29 28 26
0.51 to 1 1
1.01 to 1.50
1.51 to 2 _
2.01 to 2.50 1
2.51 to 3
3.01 to 3.50 .
3.51 to 4
4.01 to 4.50 --
4.51 to 5
501 to 6
6.01 to 7
7.01 to 8
8.01 to 10
10.0 to 15 .-
15.0andover 1 1
Total positives... 164 157 150 230
Violations of total positives 5282
Total samples in violation 302 377 107 77
Source: U S. Department of Agriculture.
- 82]
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1944 LEGAL COMPILATION—SUPPLEMENT I
l.lk(2) SENATE COMMITTEE ON AGRICULTURE
AND FORESTRY
S. REP. No. 92-838, 92d Cong., 2d Sess. (1972)
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.
SHOKT 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)
[P- 1]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1945
(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 the 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 dis-
tributed 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 in-
spection 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)(l)(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 pesti-
cides intended for local use; and States could impose greater regu-
lation 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.
[p. 2]
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1946 LEGAL COMPILATION—SUPPLEMENT I
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 pro-
duction 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 per-
formed by a Massachusetts naturalist. Extensive Federal-
State efforts confined gypsy moth destruction to New
[p. 3]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1947
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 up in the food chain and accumu-
lated 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 regis-
tered 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; r . n
[P- 4]
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1948 LEGAL COMPILATION—SUPPLEMENT I
(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.
Section 3(d) (1) (C) provides that if the pesticide, when used in accord-
ance 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 registra-
tion 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 lor 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 effective-
ness) 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 hi 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. Regula-
tory 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. r g-i
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1949
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 im-
prove 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 prohibi-
tion 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 short-
comings.
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 supply 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,
[p. 6]
-------
1950 LEGAL COMPILATION—SUPPLEMENT I
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.
FIFEA 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 in-
creasingly 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 foodstuffs.
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. r „-.
[P- 7]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1951
MILLER AMENDMENT
In 1954 pesticide regulations were expanded further by an amend-
ment 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 toricity
of the chemical to warm-blooded animals. It is from these data and
from their own research that the Federal Food and Drug Administra-
tion 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. Nemato-
cides 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 dr}Ting 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 Com-
mittee 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 identifica-
tion, and
3. Include fish and wildlife as useful vertebrates and inverte-
brates under the Federal Pesticide Act.
[p. 8]
-------
1952 LEGAL COMPILATION—SUPPLEMENT I
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, elimi-
nated 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 regula-
tion of new pesticides.
The appropriate use of chemical pesticides and the adequacy of
existing regulations has continued to be widely discussed hi the public
forum. Various committees of both the House and the Senate have held
hearings, studied the problem, and issued reports on pesticides and
public policy and deficiencies in the administration of the Federal
Insecticide, Fungicide and Eodenticide Act.
Two years ago the Department of Health, Education, and Welfare
appointed a commission on pesticides and their relationship to environ-
mental 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.
CBEATION 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 Legisla-
tion 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
[p. 9]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1953
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;
-------
1954 LEGAL COMPILATION—SUPPLEMENT I
(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 Secre-
tary 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)(l) (definition of misbranded) or section 7 (regis-
tration of establishments) shall be applicable to any class of de-
vice;
(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 evi-
dence 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
[p. 11]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1955
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)(l)(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 sub-
committee 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 ad-
ministrative 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 con-
sidered all of the numerous amendments submitted to clarify the
procedure for judicial review, third-party participation in the adminis-
trative 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
[p. 12]
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1956 LEGAL COMPILATION—SUPPLEMENT I
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 ques-
tions of suspension so that the procedure will be analogous to cancel-
lation. Where a suspension action is taken prior to a hearing, a district
court could stay the suspension pending the Administrator's deter-
mination 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 prc^uure in present law requiring review by a scien-
tific 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 Admin-
istrator 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 amend-
ments 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.,
outiming the method to be used by EPA in cancelling registration:
ENVIRONMENTAL PROTECTION AGENCY,
Washington, D.G., May 10, 1972.
Hon. HENRY BELLMON,
U.S. Senate,
Washington, D.C.
DEAR SENATOR BELLMON: You may recall that during our dis-
cussion 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
[p. 13]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1957
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 differ-
ently. 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 for 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 amend-
ments. The Committee felt that by specifically mentioning particular
areas protected by the general provisions, there might be some sug-
gestion 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)(l) (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. [p> M]
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1958 LEGAL COMPILATION—SUPPLEMENT I
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 put 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 pre-
liminary 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.
[p. 15]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1959
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 adminis-
tered 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 instruc-
tions 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 exter-
minate 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 restric-
tion 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
[p. 16]
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1960 LEGAL COMPILATION—SUPPLEMENT I
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 Com-
mittee disapproves of this provision. The review proceedings author-
ized by section 6 are adjudicatory in nature. As such they are subject
to the various statutory and constitutional provisions relating to ad-
judicatory hearings. The purpose of the hearings is to provide a record
of competent scientific evidence for the consideration of the Admin-
istrator 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 neces-
sity 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 in-
clusion 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 8 oj 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. r .„-,
[p. 17J
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1961
The following exceptions to immediate effectiveness of amendments
enacted are made:
(1) All new registrations of pesticides after such regulations are pro-
mulgated 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 enact-
ment.
(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.
[p- 18]
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1962 LEGAL COMPILATION—SUPPLEMENT I
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 pesti-
cides 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 trans-
ferred from one establishment to another operated by the same pesti-
cide 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.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1963
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 pesti-
cide, 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 othei regulatory
restrictions. Explanation: Any such regulatory restriction (other than
[p. 20]
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1964 LEGAL COMPILATION—SUPPLEMENT I
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 jurisdic-
tion 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 provi-
sions 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 Admin-
istrator 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)(l)(C)(ii) establishes a system to assure a full and fair
consideration of alternative or additional restrictions which the Ad-
ministrator 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 consti-
tute open-ended authorization for the Administrator. Specifically, the
authorization to impose such restrictions does not constitute authori-
zation 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
[p. 21]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1965
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 pro-
hibitions through such measures as certification, the signing of regis-
ters, 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 a 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
[p. 22]
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1966 LEGAL COMPILATION SUPPLEMENT I
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 estab-
lished by him, an experimental use permit if an applicant meeds such
a permit in order to accumulate information necessary to register a
p°sticide. Such a permit may be revoked if its terms or conditions are
violated or are 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.
[p. 23]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1967
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 deter-
mine 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 Sub-
section (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 admin-
istrative 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 Admin-
istrator 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 modifi-
cation 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 Administra-
tor. 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),
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1968 LEGAL COMPILATION—SUPPLEMENT I
devices which he is currently producing, produced during the past year,
or which he has sold or distributed during the past year. Such informa-
tion 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-
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 prod-
ucts 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 desig-
nated 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
devi3es 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 th'e
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 suffi-
cient 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.
[p. 25]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1969
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, infor-
mation 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 sub-
section (a) the Committee deleted the phrase "in his judgment"
from subsection (b) of the House passed bill in order that the sub-
section 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 record-
keeping or report regulations prescribed by the Administrator under
the Act, and provides that the Administrator shall establish certifica-
tion 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 classifica-
tion; 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 record-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
[p- 26]
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1970 LEGAL COMPILATION—SUPPLEMENT I
in violation of the Act or if the registration has been suspended or is
subject to a final cancellation order.
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
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 regu-
latory 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 Adminis-
trator 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
[P- 27]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1971
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 Ad-
ministrator 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 EXPOBTS
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 inter-
national 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.
[p. 28]
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1972 LEGAL COMPILATION—SUPPLEMENT I
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 tHc Acquirement 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 trans-
portation 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 tq biologically inte-
grated alternatives to chemicals for pest control; to establish and imple-
ment 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
[p. 29]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1973
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 Exten-
sion Services.
SECTION 23. 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 (c) 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 OP 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, deter-
mine 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.
[p. 30]
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1974
LEGAL COMPILATION—SUPPLEMENT I
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:
See the following section of
For the following section of H.R. 10729: existing law:
Section 1 Section 1.
Section 2 Section 2.
Section 3 Section 4.
Section 3(b) Section 4(e).
Section 4 (New) after Section 4.
Section 5 (New) after Section 4.
Section 6(a)(l) Section 4f.
Section 6(a)(2), 6(b), 6(c), 6(d), Section 4c.
and 6(e).
Section 7 (New) after Section 4.
Section 8 Section 5.
Section 9 (a) and (b) (New) at end of bill.
Section 9(c) Section 6c.
Section 10 (New) at end of bill.
Section 11 (New) at end of bill.
Section 12(a)(l) Section 3.
Section 12(a)(2) Section 3c.
Section 12(b) Section 7.
Section 13 Section 9.
Section 14 Section 8.
Section 15 (New) at end of bill.
Section 15(a) (New) at end of bill.
Section 15(b) Section 4d.
Sections 15(c) and (d) Sections 6d and e.
Section 16(a) Section 3b.
Sections 16(b), (c), and (d) Section 10.
Section 16(e) Section 6b.
Section 17 (New) at end of bill.
Section 18 (New) at end of bill.
Section 19 (New) at end of bill.
Section 20 (New) at end of bill.
Section 21(a) Section 11.
Section 21(b) Section 13.
Section 22 (New) at end of bill.
Section 23 (New) at end of bill.
Section 24 Section 6a.
Section 25 Section 14.
Section 26 Section 12.
[p. 31]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1975
FEDERAL INSECTICIDE, FUNGICIDE, AND
RODENTICIDE ACT
[TITLE]
Sec. 1. Short Title and Table of Contents.
[SECTION l.J (a) Short Title.—This Act may be cited as the "Fed-
eral Insecticide, Fungicide, and Kodenticide Act."
(6) TABLE OF CONTENTS.—
Section 1. Short title and table of contents.
(a) Short title.
(b) Table of contents.
Sec. 2. Definitions.
(a) Active ingredient.
(b) Administrator.
(c) Adulterated.
(d) Animal.
(e) Certified pesticide applicator, etc.
(1) Certified applicator.
(2) Private applicator.
(8) Commercial applicator.
(4) Under the direct supervision and control of a
certified applicator.
(f) Defoliant.
(g) Desiccant.
(ft) Device.
(i) District court.
(f) Environment.
(k) Fungus.
(I) Imminent hazard.
(m) Inert ingredient.
(ri) 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.
(x) Protect health and the environment.
(y) Registrant.
(z) Registration.
(aa) State.
(bb) Substantial adverse effects on the environment.
(cc} Weed.
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1976 LEGAL COMPILATION—SUPPLEMENT I
Sec. 3. Registration of pesticides.
(a) Requirement.
(6) Exemptions.
(e) 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 of 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.
(5) Temporary tolerance level.
(c) Use under permit.
(d) Studies.
(e) Revocation.
Sec. 6. Administrative review; suspension.
(a) Cancellation after Jive 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.
Sec. 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.
[p. 33]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1977
Sec. 9. Inspection of establishments, etc.
(a) In general.
(b) Warrants.
(c) Enforcement.
(1) Certification of facts to Attorney General.
(2~) Notice not required.
(3) Warning notices.
Sec. 10. Protection of trade secrets, etc.
(a) In general.
(b) Disclosure.
Sec. 11. Standards applicable to pesticide applicators.
(a) In general.
(6) 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) References to Attorney General.
(b) Criminal penalties.
(1) In general.
(2) Private pesticide applicator.
(5) Disclosure of information.
(4) Acts of officers, agents, etc.
Sec. 16. Administrative procedure; judicial review.
(a) Administrative Procedures.
(6) Judicial review.
(c) Jurisdiction of district courts.
(d) Notice of judgments.
[p. 34]
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1978 LEGAL COMPILATION—SUPPLEMENT I
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. 19. 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 for training.
Sec. 28. Authority of States.
Sec. 24- Authority of Administrator.
(a) Regulations.
(b) Exemption of pesticides.
(c) Other authority.
Sec. 25. Severability.
Sec. 26. Authorization lor appropriations.
[p. 35]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1979
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) Pest New.
(u) Pesticide a.
(v) Plant Regulator r.
(w) Producer and Produce New.
(x) Protect Health and the New.
Environment.
(y) Registrant v.
(z) Registration New.
(aa) State t. (Territory).
(bb) Substantial Adverse Effects New.
on the Environment.
(cc) Weed 1.
(dd) State Issuance of Permits New.
[p. 36]
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1980 LEGAL COMPILATION—SUPPLEMENT I
[DEFINITIONS]
Sec. 2. Definitions.
[Sec. 2.J For [the] purposes of this Act-
fa.] (u) Pesticide.—The term "[economic poison] pesticide"
means (1) any substance or mixture of substances intended for pre-
venting, 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 con-
trivance (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 for
the application of economic poisons when sold separately therefrcrn'J
•any pest or any other jorm 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 mitigat-
ing any 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 mitigat-
ing any fungi.
[e. The term "rodenticide" means any substance or mixture of
substances intended for preventing, destroying, repelling, or mitigat-
ing rodents or any other vertebrate animal which the Secretary shall
declare to be a pest.
[f. 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 mitigat-
ing nematodes.]
[h.] (») 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
Erowth 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 propaga-
tion of plants, and as are not for pest destruction and are nontoxic,
nonpoisonous in the undiluted packaged_ concentration.
D-] (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.
[p. 37]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1981
CM (ff) 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.
[I.] (cc) Weed.—The term "weed" means any plant which grows
where not wanted.
[m.] (0) 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 insecta,
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.] (k) Fungus.—The term "[fungi] fungus" means [all] any
non-chlorophyll-bearing [thallophytes] thallophyte (that is, fall] 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 in-
gredient, 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
poi&on 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;
[p- 38]
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1982 LEGAL COMPILATION—SUPPLEMENT I
(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 artifi-
cially 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.]
(CM) 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.] (6) Administrator.—The term "[Secretary] Administrator"
means the [Secretary of Agriculture] Administrator of the Environ-
mental Protection Agency.
[y-] (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, Educa-
tion, 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 [economic 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];
(#) any substance has been substituted wholly or in part for
the [article, or if] pesticide; or
(S) any valuable constituent of the [article] pesticide has been
wholly or in part abstracted.
[z.] (q) Misbranded.—[The term "misbranded" shall apply—]
[p- 39]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1983
(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 Admin-
istrator 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;
E(c)] (F) DO the labeling accompanying it does not contain direc-
tions 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)] (GO [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 piving 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 ejjects 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 pur-
chase^ 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
[p. 40]
525-313 O - 73 - 11
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1984 LEGAL COMPILATION—SUPPLEMENT I
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 of 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
of the immediate container, or outside container or wrapper, per-
mitted 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 of the producer, registrant, or person for
whom produced;
(ii) the name, brand, or trademark under which the pesticide is
sold;
(Hi) 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 pesti-
cide 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 a background of
distinctly contrasting color; and
(Hi) a statement of a practical treatment (first aid or otherwise) in
case of poisoning by the pesticide.
C(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 label-
ing) 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
t(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
[p. 41]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1985
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)(l)(B) of the
bill, supra.
t(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 pro-
ducing 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.
(3) COMMERCIAL APPLICATOR.—The term "commercial appli-
cator" 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 pesti-
cide 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 efjects on the environment or will involve hazard to
the survival of a species declared endangered by the Secretary of the
Interior under Public Law 91-155. r .^
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1986 LEGAL COMPILATION — SUPPLEMENT I
Compare the following subsection with language contained in
subsection a of existing law.
(t) PEST. — The term "peftt" means (1} ami 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
(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, pre-
pare, 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 environ-
ment" 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 of the
pesticide.
(dd) ESTABLISHMENT. — 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. UNLAWFUL ACTS.
(a) IN GENERAL. —
[Sec. 3. a. It] (1) Except as provided by subsection (b), it shall be un-
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 any 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,] fand
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 reg-
istered [pursuant to the provisions of section 4 of this Act, or] under
section 3, except as provided by section 6(a)(l);
(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 distri-
bution or sale substantially differ [ in substance] from [the representa-
tions] any claims made for it as a part of the statement required in con-
nection with its registration under section 3; [, or if the composition
of an economic poison differs from its composition as represented]
[p- 43]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1987
(O) 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 8;
Compare the following with section 3(f)(l) 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 reregistra-
tion 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 pack-
age, if there be one, through which the required information on the
immediate container cannot be clearly read, a label bearing—
[(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.
C(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 dis-
colored: 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 pro-
visions oj section 2 4(c) (5], r 441
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1988 LEGAL COMPILATION—SUPPLEMENT I
[(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.
[b.] (a) Pesticides and 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.
[c.] (2) It shall be unlawful for any person—
[(!)] (A) [for any person] to detach, alter, deface, or destroy, in
whole or in part, any [label or] labeling [provided for in] required
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 a manner 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 authc rized by section 5
of this Act] to refuse to keep any records required pursuant to 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 anj* 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 Actf_.~\;
(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 assigned to it under section $;
[p. 45]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1989
(F) to make available for use, or to use, any registered pesticide classi-
fied for restricted use for some or all purposes other than in accordance
with section S(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)(l);
(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 registra-
tion, 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 filed 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 (O) (of the bill) is set out above following subpara-
graph (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
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 jor shipment, or receive and (having so received)
deliver or offer to deliver, to any person any pesticide which is not reg-
istered with the Administrator.
For section 3(b) of the bill, see section 4e of existing law.
(c) PROCEDURE FOR REGISTRATION.—
(1) STATEMENT REQUIRED.—[the] Each applicant for registration
o/ a pesticide shall file with the [Secretary] Administrator a statement
[including] which includes
[(1)3 (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; r ,
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1990 LEGAL COMPILATION—SUPPLEMENT I
[(2)3 (B) the name of the [economic poison] pesticide;
[(3)] (C) a complete copy of the labeling [accompanying the eco-
nomic poison J of the pesticide [and], a statement of all claims to
be made for it, [including the] and any directions for its use;
[and]
C(4)] (D) if requested by the [Secretary] Administrator, a full de-
scription 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 under consideration;
Compare the following paragraph with the first sentence of section
4b of existing law.
(E) the complete formula 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 REGISTRATION.—The Administrator shall
publish guidelines specifying the kinds of information 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 sufficient time for applicants to obtain
such additional information. Except as provided by subsection (c)(l)(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 Admin-
istrator 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 para-
graph (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 days in which any Federal agency or any other
interested person may comment.
[b.] (5) Approval of Registration.—Compare the following sentence
with section 3(c)(l)(E) of the bill compared supra with section 4a of
existing law. [The Secretary, whenever he deems it necessary for the
effective administration of this Act, may 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 under subsection (d)—
(A) its composition is such as to warrant the proposed claims for
it; [p- 47]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1991
(B) its labeling and other material required to be submitted
comply with the requirements oj 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-
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 sub-
mitted 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 registra-
tion ana 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.
[p. 48]
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1992
LEGAL COMPILATION—SUPPLEMENT I
§§
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Section 6 of the bill is as follows:
SEC. 6. ADMINISTRATIVE REVIEW; SUSPENSION.
(a) CANCELLATION AFTER FIVE YEARS. —
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(2) INFORMATION. — If at any time after the 1
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tion regarding substantial adverse effects on th
ment of the pesticide, he shall submit such info
the Administrator.
(b) CANCELLATION AND CHANGE IN CLASS IF.
If it does not appear to the Administrator that a j
its labeling or other material required to be submith
with the provisions of this Act, the Administrator
a notice of his intent either —
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Such notice shall be sent to the registrant and ni(
The proposed action shall become final and effectivi
of 30 days from receipt by the registrant, or publii
notice issued under paragraph (1), whichever oa
unless within that time either (i) the registrant
necessary corrections, if possible, or (ii) a req
hearing is made by a person adversely affected by
In the event a hearing is held pursuant to such a n
the Administrator's determination under paragn
decision pertaining to registration or classification i
completion of such hearing shall be final.
Subsection (c) is compared, infra, with the cc
ing material at the end of section 4c of existing
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-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY
1993
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1994
LEGAL COMPILATION—SUPPLEMENT I
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-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1995
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-------
1996
LEGAL COMPILATION—SUPPLEMENT I
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-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1997
Comparison of section 4d of existing law with section 16 (b) of the
bill.
[d.] (b) Review by Court of Appeals.—In [a] the case of actual con-
troversy as to the validity of any order [under this section] issued by
the Administrator following a public hearing, any person who will be
adversely affected by such order may obtain judicial review by filing
in the United States court of appeals for the circuit wherein such
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 days 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 [Secre-
tary,] 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.
[e.] (6) 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 pesti-
cide 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. ,
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1998 LEGAL COMPILATION—SUPPLEMENT I
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.—
(1) Procedure.—The [Secretary] Administrator [is authorized to]
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 jive-year period which begins on the date of its registra-
tion (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 registra-
tion 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 80 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-
currence 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 Adminis-
trator 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 sep-
arated 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 recognised
practice, will not cause substantial adverse effects on the environ-
ment, he will classify the pesticide, or the particular use or
uses of the pesticide to which the determination applies, for
general use. r „„..
[p. 55]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 1999
(0) 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
recognised practice, may cause, without additional regulatory
restrictions, substantial adverse effects on the environment, in-
cluding 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 ike 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 renewable 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 CLASSIFICATION.—If the Administrator deter-
mines that a change in the classification of any use of a pesticide
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 hast 30 days before making
the change and shall publish the proponed change in the Federal
Register. The registrant, or other interested person with the concur-
rence of the registrant, may seek relief from such determination under
section 6(b).
Compare the following with the proviso in section 4a of existing law.
(e) PRODUCTS WITH SAME FORMULATION AND CLAIMS.—Products
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) MISCELLANEOUS.—
Compare the following with the proviso at the end of section 3a(l)
of existing law.
(1) EFFECT OF CHANGE OF LABELING OR FORMULATION.—//
the labeling or formulation 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.
(#) 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
facie evidence that the pesticide, its labeling and packaging comply
with the registration provisions of the Act.
LP- 56J
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2000 LEGAL COMPILATION SUPPLEMENT I
Compare the following with similar sentence in section 4c of
existing law.
(3) AUTHORITY TO CONSULT OTHER FEDERAL AGENCIES.—In
connection with consideration oj 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 Jor the certincation oj
applicators oj pesticides. 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
oj the pesticide or class oj pesticides covered by such individual's
certification.
(2) STATE CERTIFICATION.—IJ any State, at any time, desires
to certify applicators oj pesticides, the Governor oj 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 oj 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. Ij 'he Administrator
approves a plan submitted under this paragraph, then such State shall
certify applicators oj 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 jor a hearing at the request oj the
State, and, if appropriate corrective action is not taken within a reasonable
time, not to exceed ninety days, the Administrator shall withdraw approval
of such plan. „
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2001
SBC. 5. EXPERIMENTAL USE PERMITS.
(a) ISSUANCE.—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 oj or before or after an application for registration
is filed.
(6) 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 level
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.
(/) 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.
(6) 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.—
C?) Any producer operating an establishment registered under
this section shall inform the Administrator within SO 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 oj the Administrator
for the purpose of issuing a stop sale order pursuant to section 13,
inform him of the name and address of any recipient of any pesticide
produced in any registered establishment which he operates.
[p. 58J
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2002 LEGAL COMPILATION—SUPPLEMENT I
(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 oj.section 10.
[Books and Records]
SEC. 8. BOOKS AND RECORDS.
[Sec. 5.] (a) REQUIREMENT.—The Administrator may prescribe regu-
lations 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 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).
(6) INSPECTION.—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
pesticide 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]
SEC. 24- AUTHORITY OF ADMINISTRATOR.
[SEC. 6.a.] (a) REGULATIONS.—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 com-
pare the following clause with subsection (c) (6) infra the determina-
tion 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.
[p. 59]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2003
"(b) EXEMPTION OF PESTICIDES.—The Administrator may exempt
from the requirements of this Act by regulation any pesticide which he
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 Hiring 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
toxic 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 %(q)(l) 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.
[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]. [p 6Q]
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2004 LEGAL COMPILATION SUPPLEMENT I
Comparison of section 6c of existing law with section 9(c) of the bill.
[c.] (c) Enforcement.—
(1) CERTIFICATION OF FACTS TO ATTORNEY GENERAL.—The
examination of [economic poisons] pesticides or devices shall be
made in the [United States Department of Agriculture] En-
vironmental 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]. // 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 oppor-
tunity 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
attorney] Attorney 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 pro-
ceedings 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] Admin-
istrator to [report for prosecution or for the institution of libel
proceedings] institute proceedings for prosecution of minor vio-
lations of this Act whenever he believes that the public interest
will be adequately served by a suitable written notice 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
the Secretary or his agents shall report any violation of this Act, to
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 JUDGMENTS.—The [Secretary] Administrator
shall, by publication in such manner as he may prescribe, give notice
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.
[p. 61]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2005
[EXEMPTIONS]
[SEC. 7.a.] (6) Exemptions.—The penalties provided for a violation
of [section 3a of this Act] paragraph (1) of subsection (a) shall not
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 control from its use.
Comparison of section 8 of existing law with section 14 of the bill.
[Penalties]
SEC. 14- PENALTIES.
(a) CIVIL PENALTIES.—
(1) IN GENERAL.—Any registrant, commercial applicator, whole-
saler, 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 $5,000 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. p ,,QT
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2006 LEGAL COMPILATION—SUPPLEMENT I
(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.—
[SEC. 8. Any person violating section 3a(l) of this Act shall be
guilty of a misdemeanor and shall on conviction be fined not more
than $1,OOOJ
[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(l)] of this Act shall
be guilty of a misdemeanor and shall [uponj 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 pesticide 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 SO days, or both.
[c.] (3) DISCLOSURE OF INFORMATION.—
p
.[Notwithstanding any other provision of this section, hi case
any] Any person, who, with intent to defraud, uses or reveals informa-
tion relative to formulas of products acquired under the authority of
section [4 of this Act]3,|.he] 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.
[p. 63]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2007
[SEIZURES]
SEC. 13. Stop Sale, Use, Removal and Seizure.
[Sec. 9.] (a) STOP SALE, ETC., ORDERS.—Whenever any pesticide
or device is found by the Administrator in any State and there is reason
to believe on the basis of inspection or tests that such pesticide or device
is in violation of any of the provisions of this Act, or that such pesticide
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 device
has been canceled by a final 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, arid
after receipt of such order no person shall sell, use, or remove the pesticide
or device described in the order except in accordance with the provisions
of the order.
[a.] (6) 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 ' '
_.._..__ is not registered pursuant to the provisions of
section [4 of this Act] 3;
[(c)l (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
(8) 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,
[p. 64]
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2008 LEGAL COMPILATION—SUPPLEMENT T
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.
For a comparison of section 3b of existing law with section 16(a) of
the bill, see section 3b, supra.
(6) CANCELLATION NOTICES FURNISHES TO FOREIGN GOVERN-
MENTS.—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 inter-
national 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] Admin-
istrator 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
Secretary 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
[p. 65]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2009
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 shall,
in cooperation with the Department oj 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.
[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.
[Sac. 12.a.] There is [hereby] authorized to be appropriated
[, out of any moneys in the Treasury not otherwise appropriated,]
such sums as may be necessary [for] to carry out the [purposes]
provisions [and administration] of this Act jor each fiscal year ending
June SO, 1972, June 30, 197S, June 30, 1974, and June 30, 1975. The
amounts authorized to be appropriated jor 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. [p_ 66]
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2010 LEGAL COMPILATION—SUPPLEMENT I
[COOPERATION]
[SEC. 13.] (6) Cooperation.—The [Secretary] Administrator [is
authorized to] shall cooperate with the Department of Agriculture, any
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 appro-
priate 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-
tional,] or the [applicability] application thereof to any person or
circumstance is held invalid, the [constitutionality of the remainder of
this Act and the applicability thereof to other persons and circum-
stances 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 pro-
visions of this Act are sever able.
[EFFECTIVE DATE
[SEC. 15. All provisions of this Act, except section 3, "Prohibited
Acts"; section 8, "Penalties"; section 9, "Seizures"; and section 10,
"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
(36 Stat. 331, 7 U.S.C. 121-134), is hereby repealed one year after
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
[p. 67]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2011
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 in-
secticides and fungicides exempted by the Secretary under section
15.]
Section 9 (a) and (b) of the bill.
SBC. 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 place
where pesticides or devices are held j or 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—
(/) 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 of
this Act.
Section 9(c) of the bill is compared with section 6c of existing law,
supra.
Section 10 of the bill.
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2012 LEGAL COMPILATION SUPPLEMENT I
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.
(6) 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 ob-
tained 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 re-
vealed 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 stand-
ards 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 OF 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) ij requested by the owner of the pesticide.
[p. 69]
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PKoTlCIDES STATUTES AND LEGISLATIVE HISTORY 2013
(b) ADVICE TO SECRETARY OF TRANSPORTATION.— The Admin-
istrator shall provide advice and assistance to the Secretary of Transpor-
tation with respect to his functions relating to the transportation of
hazardous materials under the Department of Transportation Act (49
U.S.C. 1657'), the Transportation of Explosives Act (18 U.S.C. 831-835),
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 MIL
SEC. W. RESEARCH AND MONITORING.
(a) RESEARCH.—The Administrator shall undertake research, in-
cluding research by grant or contract with other Federal agencies, universi-
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 organisations, 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
(8) 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.
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2014 LEGAL COMPILATION—SUPPLEMENT I
(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 OF 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
(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.
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 [eco-
nomic poisons] pesticides subject to the Federal Insecticide,
Fungicide, and Eodenticide Act, nor to foods, drugs, and cos-
metics 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 pestwide 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.
*******
[p. Tl]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2015
POISON PREVENTION PACKAGING ACT
SEC. 2. Tor 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 siored, 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 (f));
(B) [an economic poison] a -pesticide as that term is defined in
section 2a of the Federal Insecticide, Fungicide, and Rodenticide
Act (7 U.S.C. I35(a));
FEDERAL FOOD, DRUG, AND COSMETIC ACT
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., sees. 135-135&) 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 FOB PESTICIDE CHEMICALS IN OK ON RAW AGRICULTURAL
COMMODITIES
SEC. 408. (a) * * *
*******
(d)(l) 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 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
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2016 LEGAL COMPILATION SUPPLEMENT I
(A) the name, chemical identity, and composition of the
pesticide chemical: * * *
*******
(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 exempt-
ing it from the necessity of a tolerance. Thirty days after publication
of 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 pro-
posal, 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 under-
lying data and a statement of the reasons or basis for the recommenda-
tions. 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 certi-
fication, 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 registra-
tion 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)(l)
with respect to a pesticide chemical which constitutes, or is an ingredi-
ent 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. r 731
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2017
In the event that the Secretary of Agriculture takes the action de-
scribed in clause (2) of the preceding sentence, the person requesting
the certification, within one week after receiving the proposed certifi-
cation, 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 certifica-
tion or the parts thereof objected to; or (C) request both such certifica-
tion 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.
*******
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2018 LEGAL COMPILATION—SUPPLEMENT I
PROTECTION OF MAN AND THE ENVIRONMENT
OCTOBER 3,1972.—Ordered to be printed
Mr. AtLEN, 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 would—
1. 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 growersj Michigan
producers of Christmas trees and strawberries; Washington oys-
ter producers; and on the consumers served by these industries by
limiting State registration to meet peculiar State 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);,
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2019
5. Increase the maximum civil penalty for the least serious of-
fense 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 Com-
mittee recognizes as "admirable policy" with one which is clearly
ambiguous (Amendment 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 Administrator 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 confusing surplus language and numerous errors
into this law, which will tend to cripple its enforcement.
SUMMARY OF COMMENTS OF THE COMMITTEE ON AGRICULTURE AND
FORESTRY CONCERNING THE AMENDMENTS PROPOSED BY THE COMMITTEE
ON COMMERCE
Since the original report of this committee did not 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 Commerce Committee report.
Commerce Committee
group of amendments
Pasition of Committee on Agriculture and Forestry number
Registration criteria. This series of amendments makes nonsub-
stantive 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 bill and suggests alternative amendments which would
adopt words apparently preferred by the Committee on Com-
merce without doing violence to the bill 1
I ise of test data. This amendment strikes out a provision giving
an applicant exclusive rights in the test data developed and
submitted by him. The Committee on Agriculture and For-
estry believes that private research will be encouraged and
better and safer pesticides will be developed if private re-
searchers are protected in the fruits of their labors. The Agri-
culture Committee provision would not preclude other re-
[P- 2]
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2020 LEGAL COMPILATION—SUPPLEMENT I
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 maxi-
mum 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 maxi-
mum 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 sov-
ereign nations can adequately govern their countries only with
our nelp. Most important if (1) deletes the provision of the
Agriculture Committee amendment Avhich would require no-
tice to foreign countries whenever a pesticide has its registra-
tion 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 harm-
less 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 Admin-
istrator the authority to obtain the information that is prob-
ably 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 registra-
tion and classification of pesticides to those tests which the
applicant chose to offer. This amendment would hamper ad-
ministration 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 be-
lieves that laws should be administered by the executive
branch of the government. This amendment appeal's 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 Admin-
istrator unwarranted authority to deny to a registrant the
opportunity for a full hearirso- prior to cancellation of his
registration 8
[p. 3]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2021
Commerce Committee
Group of amendment*
Position of Committee on Agriculture and Forestry number
Inclusion of farmworkers in term "man". This amendment spe-
cifies 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 DDT) which
involves less risk for farmworkers in preference to one (such
as methyl parathion) which involves more risk for farm-
workers. This amendment would also prohibit the Adminis-
trator 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 For-
' estry 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 pur-
pose 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 be-
cause their pesticide usage does not warrant the cost of regu-
lar Federal registration of the pesticide for that particular
usage 12
Recordkeeping by private applicators. This amendment author-
izes the Administrator to require farmers, farmworkers, and
other private applicators to maintain records and file re-
ports. 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 pesti-
cides or devices are kept or used without a warrant and with-
out any suspicion that any law had been violated. The Com-
mittee 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 appropria-
tions for the Federal Insecticide, Fungicide, and Rodenticide
Act to not io exceed $15,000,000 for fiscal 1973, $25,000,000
for fiscal 1974, and $35,000,000 for fiscal 1975. The cost of ad-
ministering this act in the fiscal year just closed is estimated
by EPA at $18.3 million. With the new responsibilities im-
posed by the bill, EPA estimates the necessary cost of ad-
ministering the act at $35 million for fiscal 1973. $44 million
for fiscal 1974, and $55 million for fiscal 1975___' 15
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2022 LEGAL COMPILATION SUPPLEMENT I
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,
] 947, 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 Insecti-
cide, 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 sub-
ordinate 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. HERMAN E. TALMADGE,
Chairman, Agriculture and Forestry Committee, U.S. Senate, Wash-
ington, D.C.
DEAR SENATOR TALMADGE : I am aware that your committee has been
giving very thoughtful and thorough consideration to the pesticide
legislation now before the Congress. Although the Agriculture Com-
mittee's interest in this legislation is certainly paramount, it is my
feeling that the Commerce Committee also has a legitimate, if sub-
ordinate, 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 re-
sources 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 re-
referral of the bill at that time, you would have no objection. I would
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2023
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. MAGNTJSON, Chairman.
DECEMBER 21,1971.
Hon. WARREN G. MAGNUSON,
Chairman, Committee on Commerce,
U.8. Senate, Washington, D.C.
DEAR MAGGIE : Thank you for your letter of December 16 with re-
spect 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 Rodent-
icide Act, and I am asking the committee staff to notify the Commerce
Committee staff whenever a bill similar to any of the bills just men-
tioned 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 com-
mittee 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 inter-
est. 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 con-
sidered. Senators Hart and Nelson proposed a series of 11 amend-
ments 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 Nel-
son's prepared statement, which contains his explanation of the amend-
ments 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 Pro-
tection Agency and either adopted or worked out satisfactory alter-
natives 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
was referred to the Committee on Commerce on June V, the day it was
reported by this committee to the Senate. On July 19, 1972, the bill
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2024 LEGAL COMPILATIOX SUPPLEMENT I
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 Pro-
tection 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 re-
lated to that subject. Rather, they deal with farmworkers, appropria-
tion 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 rec-
ommended by the Committee on Commerce present substantive ques-
tions 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 given 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 amendments 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 would have no discernible 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 denned 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 "unreason-
able 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 are neither substantive nor technically
necessary is likely to result in errors. The Committee on Agriculture
and Forestry consequentlv rejected an earlier version of this amend-
[p. 7]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2025
ment. Some of the errors which would be introduced into the bill by
the adoption of the current version are as follows:
(1) If the word "unreasonable" is to be substituted for "sub-
stantial" 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 "un-
reasonable" 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 pre-
sent 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 environ-
ment" 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 "substan-
tial 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, how-
ever, 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 de-
termining "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 Com-
mittee on Agriculture and Forestry: r Si
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2026 LEGAL COMPILATION—SUPPLEMENT I
1. AMENDMENT NO. 1011
This amendment would add a new definition to the defi-
nitions 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 pres-
ent the Administrator is directed to register a pesticide if
it will perform its impact without "substantial adverse ef-
fects 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 "sub-
stantial 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 pro-
posed, 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 tb 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. Sec-
tion 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) from what it means in section 3(b) (5). If
risks in use outweigh benefits, a product will not be reg-
istered under any classification. Where, on the other hand, a
risk is apparent but acceptable because of countermaking ben-
efits, 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 a criterion for registra-
tion, we believe the present language of section 3 (b) is prefer-
able since it states agency policy. Where two products pose
the same degree of risk and are equally necessary and effec-
tive, one should not be registered in preference to the other.
Of course, where the same control can be achieved more
[p. 9]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2027
safely than with, a product which is being examined, the def-
inition 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 weigh-
ing 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 pre-
fers the term "unreasonable" to "substantial" as the governing cri-
terion, its objectives could be easily accomplished without doing sub-
stantial 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, tak-
ing into account 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 "includ-
ing 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 ques-
tion 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 ani-
mals 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 man and the environment that this product be registered.
[p. 10]
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2028 LEGAL COMPILATION—SUPPLEMENT I
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 pesti-
cide 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 con-
sideration of thn availability of less hazardous substitutes as
one of the interests to be balanced in determining whether a
consideration (sic) should be registered. // the -first of these
readings were accepted universally, the committee would be
'willing to wipe out the doctrine and to accept the Agriculture
Committee's language which would appear to do just that.
If "pesticide An and '"pesticide Z?" are equally safe and effec-
tive it would he unfair to register one in preference to the
other and absurd to reject both on the grounds that neither is
"essential'1''. Yet, since the second reading has been a popular
one, and since the committee supports the doctrine as defined
under 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 con-
sideration in the evaluation of an application for the regis-
tration of "B". (italics ad
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PESTICIDKS—STATUTES AND LEGISLATIVE HISTORY 2029
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 support of any other
application for registration. The provision it would strike does not
prevent other applicants from developing their own data and obtain-
ing registration on the basis of that data, but it does assure each ap-
plicant 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 manu-
facturers 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 under-
taking that research. The provision proposed to be stricken by the
Commerce Committee amendment is designed to provide the necessary
incentivo 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 requir-
ing 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 Forest 17 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 net recouping a
part of his cost in this manner, since if he does not the second registrant
can do his own testing. The Committee on Agriculture and Forestry
does not believe that this provision can 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:
' [p. 12]
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2030 LEGAL COMPILATION—SUPPLEMENT I
NACA STATEMENT RELATIVE TO EXCLUSIVE USE OF DATA
PROVISION OP 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 sub-
stantial amounts in research to meet today's stringent regula-
tory 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 OP H.R. 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 regis-
tration 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 inf orma-
tion 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 descrip-
tion of the tests made and the results thereof upon which
the claims are based, except that data submitted in sup-
port of an application shall not, without permission of the
[p. 13]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2031
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 Eepresentatives 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 Ad-
ministrator without permission of the applicant, in sup-
port 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 register-
ing 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 origi-
nal 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 OPPOSITION
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 discus-
sion of this provision when H.R. 10729 was debated on the
floor of the House of Representatives may be summarized as
follows:
1. The provision subverts our patent laws by extending in-
definitely 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.) ,- Mj
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2032 LEGAL COMPILATION—SUPPLEMENT I
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 re-
search.
DISCUSSION
Analysis of these provisions of H.K. 10729 will demonstrate
that these objections cannot be sustained.
/. 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 in-
directly 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.K. 10729 that would prevent any other
person from registering the pesticide granted sufficient sup-
porting 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 demon-
stration 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 regis-
tration under present law is attached as Appendix A-2. Ap-
pendix A-2 consists of an excerpt of pages 4—7 from The Reg-
ulation of Pesticides in the United States which was pub-
lished by the U.S. Department of Agriculture and the U.S.
Department of Health, Education, and Welfare in March,
1968. A summary 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 reg-
ulatory requirements to the point of commercialization in-
creased 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
[p. 15]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2033
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 cf the exclusive use
of data provision would point out that except for this provi-
sion, the foreign firm could promptly register and market Pes-
ticide X in the United States following the expiration of the
patent.
H.E. 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 immedi-
ately 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. ^ *„-,
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2034 LEGAL COMPILATION—SUPPLEMENT I
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."
//. The exclusive use of data provision will make econom-
ically feasible research which will 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 stand-
ards 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 Agricul-
tural Chemicals Association established that in 1967 the re-
porting companies spent a total of $6,997,000 or 18.4 percent
of total research and development expenditures for main-
taining the registration of existing products. In 1971 the
expenditures of these same companies for maintanining exist-
ing 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 result-
in from such research at no cost.
As a practical result, numerous pesticides have been re-
moved from the market over the past few years because it was
not economically feasible for the registrant to meet the de-
mands 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.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2035
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 expend-
itures 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 man-
ager, 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 re-
quired 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 dis-
courage 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 for the pesticide industry has been that each company
engaged in research for neAv pesticides makes a very early de-
termination 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 deter-
mines that it cannot obtain a valid and enforceable patent,
research and development of the pesticide is abandoned. The
[p. 18]
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2036 LEGAL COMPILATION—SUPPLEMENT I
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 sub-
stantially aggravates the situation by providing competitors
with the basis for further analysis and development of simi-
lar products. The inevitable effect under either the present
system or the system proposed in H.R. 10729 with the exclu-
sive 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.
///. The exclusive use of data -provision is administratively
feasible and is compatible with the other regulator
requirements of H.R. 107%9
From the foregoing discussion we believe it to be clear that
the remaining reasons which have been advanced in opposi-
tion 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 Administra-
tor. 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 appli-
cant 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 appli-
cant. 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 prop-
erty after it has been opened for public inspection.
IV. Additional research which would result from the exclu-
sive use of data provision would be beneficial
Opponents have suggested that this provision would re-
quire a needless duplication of research. We dp 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.
S. He.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2037
Experience has shown that impurities resulting from pro-
duction processes may have substantial toxicological effects.
Research conducted with a compound produced by one com-
pany may not be valid for the same compound produced by
another company.
To the extent that this provision would result in a replica-
tion 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 und-er 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 Insec-
ticide, Fungicide and Eodenticide Act. Title 21, Code of Fed-
eral ^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 in-
formation 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 Informa-
tion Act. The research data is made available for public in-
spection and appraisal. „,
[p. 20J
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2038 LEGAL COMPILATION—SUPPLEMENT I
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 consider-
ing 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 in3(c)(l)(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 sim-
ply because another had previously conducted the same or sim-
ilar tests. However, we feel the Administrator should be able
to refer to any previously submitted test data when consider-
ing 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 tihat 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 sup-
port 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 increas-
ing the application processing time.")
COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRY ON AMEND-
MENT NO. 3 OF THE COMMITTEE ON COMMERCE (ADVISORY COMMITTEES)
In brief, this amendment is ambiguous, so that its effect cannot be
known. It ivould appear to substitute an ambiguous conflict of interest
rule for one which the Committee on Commerce and the Committee
on Agriculture and Forestry agree constitute an "admirable, policy1'1.
This amendment (which appears at the bottom of page 96 and top
of page 97) would require any committee of the National Academy
[p. 21]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2039
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 npnscientists 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 (Ascribing
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 ad-
mirable 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 COMMITTEE ON AGRICULTURE AND FORESTRY ON AMEND-
MENT NO. 4 OF THE COMMITTEE ON COMMERCE (PENALTIES)
In brie}', this would increase the maximum, civil penalty for a, house-
holder or other person not in the pesticid-e business above that for
manufacturers, commercial 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. ,
[p. 22J
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2040 LEGAL COMPILATION—SUPPLEMENT I
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 im-
prisonment for 30 days. The Committee on Agriculture and Forestry
felt that an offense by a registrant, commercial applicator, whole-
saler, 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 regis-
trant 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 imprison-
ment for up to 1 year.
The amendment proposed by the Commerce Committee would per-
mit 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 Com-
mittee on Agriculture and Forestry recommends rejection of this
amendment.
The report of the Committee on Commerce describes this amend-
ment 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 applica-
tors. Those pesticides which are classified for restricted use
only might be required to be applied only by a certified ap-
plicator. 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 in-
sufficient 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 be-
lieve that this provision is applicable only to "private certified appli-
cators". That is by no means the case. It is applicable as-well (page 115,
line 21) to any "other person not included in paragraph i(l)", (i.e, any-
one not in the pesticide business). Private certified applicators wrould
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
[p. 23]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2041
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, house-
holders, and others who apply their own pesticides who would be made
subject to a maximum civil penalty of $10,000, and (2) "huge corpo-
rate" 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 ame-ndment is to strike out the
requirement that foreign governments be notified when a pesticide is
banned in the United States (page 123, lines 19 through 26).
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 main-
tained and to be open for inspection (page 123, lines 10 and 11);
(3) prohibit exportation- of any pesticide unless the Admin-
istrator 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 amend-
ment, 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.
[p- 24]
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2042 LEGAL COMPILATION—SUPPLEMENT I
This amendment is not necessary and does no good. It will unneces-
sarily 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 Adminis-
trator 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.1 The amend-
ment 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 dam-
age to the ecology caused by the production and disposition of the
1 The following memorandum illustrates this problem :
THE LIBRARY OF CONGRESS,
CONGRESSIONAL RESEARCH SERVICE,
Washington, D.C., August 1, 1912.
To : The Honorable James B. Allen, Chairman, Subcommittee on Agricultural Research
and General Legislation, Senate Committee on Agriculture and Forestry.
From : Marjorie Ann 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 figure given in the August 1969 edition
of "Status of the World's Nations," a publication prepared by the Geographer's Office at
the Department of State (Bureau of Intelligence and Research ; Geographic Bulletin No.
2, page 1). According to this source, "the concept of independence . . . means statehood
without foreign jurisdiction" (page 1). This number of 70 is increased by the 72 new-
states which have achieved sovereignty since the early 1940's, according to a checklist
published in the April 1972 issue of the Department of State Newsletter. Thus, the num-
ber of independent states provided by Department of State sources totals 142. This figure,
however, does not include the German Democratic Republic (East Germany) ; the Demo-
cratic People's Republic of Vietnam (North Vietnam) the Democratic People's Republic
of Korea (North Korea), the People's Republic of China and the Mongolian People's
Republic. Add these five states and the total is 147.
Not included within the 147 number is Southern Rhodesia which, while declaring its
independence unilaterally in November 1965, is still considered as being under the juris-
diction of the United Kingdom. A key element in national sovereignty is the concept of
political independence. Thus, separate geographic entities which do not enjoy political
Independence—for example Mozambique is under the political authority of Portugal;
Gibraltar is under the authority of the United Kingdom—are not included in the num-
ber of 147 independent nations of the world.
[p. 25]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2043
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 require-
ments 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 descrip-
tion 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,
Eecent 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 respon-
sible 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 manufac-
tured 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."
[p- 26]
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2044 LEGAL COMPILATION—SUPPLEMENT I
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 in-
formation 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 Com-
mittee 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 informa-<
tion required 'by the Commerce Committee amendment with the Ad-
ministrator. 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-
quires that the label approved under section 3 for use in the United
States be sent to the governments of foreign countries. The informa-
tion received by this foreign country from the United States, there-
fore, 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,
[p. 27]
s.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2045
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 pack-
aged 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 Com-
mittee 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 fur-
nished 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 governments.
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 lan-
guage 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. There-
fore, much of the amendment language is either unnecessary
or unintentionally far too broad. , ,
[p. £6\
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2046 LEGAL COMPILATION SUPPLEMENT I
In addition, the amendment is written so that pesticides are
subject to section 8 when in fact pesticide producers, dis-
tributors, 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 cancella-
tions.
We do not recommend enactment of the provision concern-
ing material furnished to foreign governments. The adminis-
trative load of the provision would be immense and its bene-
fits questionable. For example, given the above amendment
concerning submission of 3(c)(1) statements, it could be pre-
sumed that a foreign government would know of their avail-
ability as long as it knows the provisions of the act. The
bill already provides that notices of cancellation will be fur-
nished and cancellation would occur upon any suspension.
The need for foreign governments to know a change in classi-
fication is dubious; they would not have the particular use-
control 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 ap-
proved under section 3 is questionable.
The following letter from the Environmental Protection Agency
makes it clear that—
(1) Under the Commerce Committee amendment foreign gov-
ernments would receive at least 6,000 cancellation 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 Admin-
istrator, 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 state-
ments 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
[p. 29]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTOEY 2047
and cattle." and "Moreover, it was not the importation of a 'pesti-
cide' 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. Short 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 perti-
nent paragraph of the July 25 letter is as follows: " (2) We would
and do make available to any foreign governments all of the in-
formation they might specifically request except for trade secrets.''
"U.S. ENVIRONMENTAL PROTECTION AGENCY,
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 L
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 cancella-
tion. It is rare that these five-year notices result in final order of can-
cellation; 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 pro-
posed export amendment requires us to furnish to foreign governments.
To reiterate our July 25 1 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 regis-
tered foreign pesticides. If it is shipped to this country for domestic
use, the material must be registered pursuant to all requirements appli-
cable to domestically used and produced pesticides. Data and labels
received by a foreign government would not necessarily cover the pre-
cise 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 ship-
ment 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 1 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.
[p. 30]
See footnotes, pp. 31-33.
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2048 LEGAL COMPILATION—SUPPLEMENT I
8. To summarize our knowledge of the Iraqi incident as described in
greater detail in our letter of July 25,1 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 ac-
cordance 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 neces-
sarily from the Western hemisphere, was not planted, probably be-
cause 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 in-
fected 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 treat-
ment anyway.
Sincerely yours,
CHARGES FABKIKANT,
Special Assistant for
Regulatory Affairs.
1 The July 25 letter referred to herein Is set out below, together with the letters request-
Ing 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-responsive material Implying that the Commerce Committee
amendment provided for exchange of information on "all major actions", Informal meet-
Ings 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.
JULY 24, 1972.
Hon. \Vl'T,JAM D. RUCKET.SHAUS.
"Administrator, Environmental Protection Agency,
"Washington, D.C.
"DEAR MR. KUCKELSHATIS : Would you please advise me as to the number of cancellation
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 were
made effective during the same year.
"I would appreciate this information no later than 4 :00 p.m. July 25.
"With every good wish, I am
"Sincerely,
"JAMES B. ALLEN."
"JCL.Y 20, 1972.
"Hon. WILLIAM D. RTJCKELSHADS,
"A ilminiKtrntor. Enriroiimental Protective Agency,
"Room 3104, Waterside Mall, Washington, D.G.
"DEAR MB. RUCKELSHAUS : The Committee on Commerce has recommended an amend-
ment 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 require-
ments, prohibits exports in certain cases, and requires you to furnish each foreign govern-
ment with (1) a notice of the availability of the statement required under sections 3(c) (1),
(2) all labels approved under section 3, and (3) all orders of suspension and all notices of
cancellation or change In classification issued pursuant 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 roe that the amendment
proposed by the Commerce Committee corrects the deficiencies you pointed out, nor does it
make any change In substance which would remove your substantive objections. If this is
correct, please so advise me.
"I would appreciate it if you would further advise me on the following matters :
; [p- 31]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2049
"(1) 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 Commerce Committee amendment?
"(2) Without the Commerce Committee amendment, would this Information be made
available upon request with respect to any pesticide registered by the United States if any
foreign government should feel any need for this type of information ?
"(3) In your administration of the Federal Insecticide, Fungicide, and Rodentlcide 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
"(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 cost 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 as 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.
"(8) There were a number of people in Iraq that were killed or Injured as a result of
eating, 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.
"JAMBS B. AILEN,
"Chairman, Subcommittee on Agricultural
"Research and General Legislation."
"ENVIRONMENTAL PROTECTION AGENCY,
"Washington, D.C.
"Hon. JAMES B. ALLEN,
"U.S. Senate,
"Washington, D.C.
"DEAR SENATOR ALLEN : Mr. Ruckelshaus has asked me to reply to your letters of
July 20 and 24 regarding the Commerce Committee amendment to H.R. 10729 which deals
with export of pesticides and the number of cancellation actions taken by this Agency. We
have tried to respond to the questions you posed in your letters to the best of our ability.
Because we have had little experience with the kind of program envisioned by the Amend-
ment which calls for International cooperation, accurate data, particularly as regards
costs of the proposed amendment, are not available. Most of our figures should only be
regarded at best as very rough estimates.
"To take your July 24 request first regarding the number" of cancellation notices issued
under the Federal Insecticide, Fungicide and Kodentlcide Act during 1971, the Pesticide
Registration Division cancelled registrations for upwards of 2000 products by "class
action" PR notices. Included were products containing DDT, aldrin/dieldrin, and mirex.
"Furthermore, in 1971, 1347 specific notices of cancellation were sent out involving
individual products, generally as a result, for example, of labeling deficiencies or a need
for upgrading efficacy data. Final cancellation did not result in most cases.
"Unfortunately, we do not have an exact figure on the number of product registrations
cancelled. With the 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
requested.
"To respond to the specific questions concerning an International program:
"(1) The only requests from foreign governments that we know about are: (a) Or-
ganization of Economic Cooperative Development (OBCD) has asked us (on a reciprocal
basis) to advise member nations through OECD Secretariat of all major actions on regula-
tion of pesticides as soon as we decide on them. The Department of Agriculture has been
advising us which actions have a significant economic impact on foreign nations ; (b)
Great Britain, Canada, and this country have been having informal meetings to exchange
current information and thinking on pesticide regulations; (c) we have also received
scattered requests for summaries of registration and tolerance actions.
"(2) We would and do make available to any foreign governments all of the Informa-
tion they might specifically request except for trade secrets.
"(3) We have not felt the need to receive registration information from other govern-
[p. 32]
-------
2050
LEGAL COMPILATION—SUPPLEMENT I
meuts 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 l>y a series of technical conferences with Russia 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
"(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.
"\Ve teel that the intent of the amendment could be complied with at a reasonable cost
by making available the EPA Compendium of Registered Pesticides to any country re-
questing it. This five-volume publication, when completed, will provide information on all
label uses and precautions for registered pesticide products, contents of the product,
dosage and dose ranges, active ingredients, types of formulations, crops involved, and
residue tolerances, when they are required.
"We are unable, however, to provide you with precise xlata 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 as 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.
"(7) Inasmuch as Section 27 of H.K. 10729 limits fees to those required for registra-
tion under Section 3, it would not seem that any of the costs of providing information
to foreign governments could be recovered by charges. These services would have to be
supported by appropriated funds.
"(8) 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.
Nonetheless, the seed somehow entered the channels of commerce. Despite the red dye,
skull and crossbones on the bags, and warnings from the government ,tne farmers began
feeding, the grain to their poultry and cattle. Apparently Iraqi citizens used the seed in
their breadmaking, and marketed the meat of livestock ted 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 tor
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 have influenced It. Short of a world-wide rsetriction on exports
of highly dangerous pesticides by all 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 for furnishing, at
cost, 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-
taining 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,
"DAVID D. DOMINICK."
- 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
[p. 33]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2051
COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRY ON AMEND-
MENT NO. 0 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 efficacious.
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 avail-
able to the public "upon identifiable request" copies of any "com-
munication, document, report or other information received by
the Administrator from any manufacturer or sent by the Ad-
ministrator 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, in-
creasing 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 "present-
ly" under consideration in a rulemaking or adjudicative proceed-
ing 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 pes-
ticides which are not efficacious or which endanger health or the en-
vironment. The Administrator should be able to request and obtain
a full description of the tosts 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 Ad-
ministrator 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. .- ,
[p- 34]
-------
2052 LEGAL COMPILATION—SUPPLEMENT I
The amendment modifies section 3 of the Agricultural Com-
mittee bill by requiring, iirst 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 wttl be required to support the regis-
tration. What the amendment will do is require that this test data,
whether favorable or ur^ivorable 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 unthinkaole 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 Admin-
istrator 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 infor-
mation to be filed even though the Administrator had no need for it
and did not request it. It may be that the Commerce Committee in-
tended 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 sub-
mission 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
[p. 35]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2053
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 Pesti-
cide X is safe and efficaceous for the additional pest. To require the
applicant to submit with the new application all of the data he sub-
mitted 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 by the Administrator's decisions as to whether or not to regis-
ter, cancel or suspend registration, change the use classification, or im-
pose additional restrictions on the use of a pesticide. It also provides
that all data called for in the registration statement and all other scien-
tific 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
[p. 36]
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2054 LEGAL COMPILATION—SUPPLEMENT I
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 Environmen-
tal Protection Agency concerning a matter "presently under considera-
tion" 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 considera-
tion 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 Administra-
tor 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 determi-
nation 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 reg-
istered product on a related crop or pest.
-------
PESTICIDES STATUTES AND LEGISLATIVE HISTORY 2055
Eequiring 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)(l)(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.E. 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. 10(33 states tlie 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) Disclosure.—If requested by a registrant or appli-
cant for registration furnishing such information, the Ad-
ministrator 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."
[p. 38]
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2056 LEGAL COMPILATION -- SUPPLEMENT I
COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRY ON
AMENDMENT NO. 7 OF THE COMMITTEE ON COMMERCE (CITIZENS SUITS >
In brief, this amendment (page 119, line 21 through 132) provides
for citizens'1 suits in certain cases for injunctive relief, attorney and
expert witness fees, and other costs of litigation. Such costs could be
awarded to any party whenever the court deemed appropriate without
regard to whether such party prevailed in the suit. Misuse of registered
pesticides would not be enjoinable, although, the Commerce Committee
report would indicate that it was 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. Thft
courts should not be further burdened with suits by citizens who dis-
agree with the manner in which the President is executing the laws.
The bill as recommended by the Committee on Agriculture and
Forestry affords adversely affected parties with an opportunity for
administrative and judicial review of decisions with respect to regis-
tration, cancellation, suspension, classification, and the imposition of
additional restrictions. There is no need for the additional involve-
ment 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 fee's, 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 Ad-
ministrator and a manufacturer must be immediately made public and
if every citizen can harass the Administrator with suits for injunc-
tions. The Agriculture Committee bill already permits any citizen to
initiate cancellation proceedings, obtain judicial review of every action
or inaction he 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 en-
join any violations of "(4) the prohibition against misuse of a pesti-
cide" 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 sub-
ject to citizens' suits and why violations of the misuse of registered
pesticides should be exempt from this provision.
EPA's comments on a similar amendment which was considered and
rejected by the Committee on Agriculture and Forestry are as follows :
[p. 39]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2057
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, nondiscre-
tionary act or duty under the act.
While there was no provision for citizen suits in the Admin-
istration'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. Lan-
guage 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.B. 10729, an Act to amend the Federal Insecticide,
Fungicide, and Eodenticide Act, and for other purposes, viz.:
On page 50, between lines 15 and 16, insert a new section as
follows:
"SEC. 17. CITIZENS CIVIL 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 a 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 Constitu-
tion) 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 sub-
section 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) — ,- . ,
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2058 LEGAL COMPILATION SUPPLEMENT I
"(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 com-
pliance 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 Administrator, 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 determines
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 regu-
lation 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."
" (ff) When any actions brought under this subsection in-
volving the same defendant and the same issues of violations
are pending in two or more jurisdictions, such pending pro-
ceedings, upon application of the defendant seasonably made
to the court of one such jurisdiction, shall be consolidated for
trial by order of such court, and tried in (1) any district se-
lected by 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 giving 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 proxim ity to the applicant's principal place of
business, in which all such pending proceedings shall be con-
solidated 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 or-
der shall give prompt notification thereof to the other courts
having jurisdiction of the cases covered thereby."
Kenumber the remaining sections of the bill accordingly.
[p. 41]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2059
COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRY ON
AMENDMENT No. 8 OF THE COMMITTEE ON COMMERCE (HEARING
STRUCTURE)
In brief, this amendment would give to the Administrator unwar-
ranted authority to deny a registrant the opportunity for a full hear-
ing 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 de-
scribes 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, depend-
ing on the nature of the hearing, the hearing would be in-
formal 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 hear-
ing 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.E.
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 involving pesticides.
One further aspect of this amendment is undesirable. As
drafted it might compel a hearing on any finding made by the
Administrator. For the purpose of delay a party might seek
to challenge immaterial findings. r . 01
LP- 4^J
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2060 LEGAL COMPILATION—SUPPLEMENT I
COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRY ON
AMENCMENT No. 9 or THE COMMITTEE ox COMMERCE (INCLUSION OF
FARMWORKERS IN TERM "MAN")
At best, this amendment is meaningless surplusage making it clear
that farmers, farmworkers, and others coming into contact with pes-
ticides and pesticides residues are included within the term "man". At
worst, it would (1) prohibit reliance on certain test data to deny reg-
istration of dangerous pesticides, and (2) weight registration decisions
in favor 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, farm-
workers, 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 emphasize that the bill requires the Adminis-
trator 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 spe-
cifically require the labeling to bear directions and warnings
to protect farmers and others coming into contact with pesti-
cides 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 re-
quire 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 cov-
ered by the proposed amendments. The committee felt that by
specifically mentioning particular areas protected by the gen-
eral provisions, there might be some suggestion that the gen-
eral provisions should be construed to cover less than actually
intended. Section 2 (j) of the bill defines "environment" to in-
clude all men, whether they come into contact with the pesti-
cides or pesticide residues, or not. Section 2(q)(l) (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
[p. 43]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2061
classification of pesticides be such as to protect farmers, farm-
workers, and others coming in contact with pesticides or pesti-
cide residues.
The Committee on Commerce agrees with the Committee on Agri-
culture and Forestry that this amendment is surplusage when it says
in its report at page 27 :
While the Committee on Commerce agrees with the En-
vironmental Protection Agency and the Committee on Agri-
culture and Forestry that the health of farmworkers will
be considered without the amending language, the Subcom-
mittee 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 farm-
workers will be protected. The fact that there was testimony they
might not be protected under existing law is no reason for adding sur-
plusage 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 mem-
bers of the family of man and the Commerce Committee report sug-
gests at page 27 that this is the case when it says, "In adopting the pro-
posed amendment, the committee intends to stress the health of farm-
workers 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 lie certified by the Envi-
ronmental Protection, Agency unless it is absolutely safe for
use by those who must work with or around it. (Italics
added.)
In looking for an example to see what the effect of making the farm-
worker'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 he has delayed cancellation iintil the end of the year
because of the danger of methyl parathion to farmers and farmwork-
ers. If the health of farmworkers is now to be made a vital criterion,
that would appear to weight the scale in favor of registration of DDT
in preference to registration of methyl parathion.
[p. 44]
-------
2062 LEGAL COMPILATION—SUPPLEMENT T
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 intention-
ally. However, data may be acquired as the result of accidental invol-
untary tests, resulting from climatic conditions, spillage, other acci-
dent, improper calibration of equipment, and otherwise. Thus, studies
of hospital admissions for pesticide poisoning might contribute to
the Administrator's knowledge of pesticide safety. If such accidental
tests should show that a pesticide will not perform its intended func-
tion 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 orienta-
tion, it has been provided by Spanish-speaking intermedi-
aries. Almost all participants have been natively Spanish-
speaking. 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 cho-
linesterase function, depression, and regeneration. And the
practice is most unacceptable of all when this lay interpreter
stands in an employer-employee relationship with the poten-
tial participants.
It should be understood—although it is usually not under-
stood—that the relationship of growers, contractors, foremen,
and supervisors to Spanish-speaking farmworkers is not like
[p. 45]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2063
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 cul-
tural 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, in-
deed, this often is true. Almost none of the workers in the
crops we are concerned with here—the tree crops where pes-
ticide problems usually occur—are effectively protected
against the arbitrary exercise of power by supervisors. Un-
der 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 Agricul-
ture and Forestry could qualify as a test participant if he had to
understand "technical concepts such as cholinestrase function, depres-
sion, and regeneration." In fact, it is doubtful whether any English-
speaking 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 pow-
der 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
pronounce or did not fully understand pseudocholinesterase, or be-
cause the tests were conducted on Sunday or were otherwise conducted
in violation of local law.
COMMENTS Or THE COMMITTEE OX AGRICULTURE AND FORESTRY ON AMEND-
MENT NO. 10 OF THE COMMITTEE ON COMMERCE (AUTHORITY OF LOCAL
GOVERNMENTS TO REGULATE THE USE OF PESTICIDES)
In brief, this amendment (page T£,9. lines 14. 15, 16. and 18) would
give local qovernm-ents the authority to regulate the sale or v-se of a
pesticide. Its purpose is to vitiate the language contained -in the report
[p. 46]
-------
2064 LEGAL COMPILATION—SUPPLEMENT I
of the Committee on Agriculture and Forestry. Report No. 92-838, at
page 16 as folloivs :
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 Gov-
ernment 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 compara-
ble 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 politi-
cal 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 author-
ity over pesticides and the regulation of pesticides.
COMMENTS OF THE COMMITTEE OF AGRICULTURE AND FORESTRY ON AMEND-
MENT NO. 11 OF THE COMMITTEE ON COMMERCE (SUSPENSION)
In brief, this would (1) provide for judicial revieiv in appellate
courts even where there had been no prior administrative hearing,
and (2) preclude the registrant from presenting any evidence in his
own behalf in certain cases.
This amendment would—
(1) deprive a registrant of the right to an administrative
hearing before suspension of registration which would be ac-
corded 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 deter-
mine the facts (page 94, line 23, and page 95, lines 3 through
15;
(4) deprive a registrant of any opportunity to present evi-
dence in a suspension proceeding (even on judicial review)
where there has been no administrative hearings—by restrict-
ing 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-
[p. 47]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2065
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 re-
view of the suspension question. Thus, the number of deci-
sions 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 misunder-
standing by the Commerce Committee of its amendment. Its amend-
ment 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 amend-
ment the registrant could appeal. If his appeal were successful, then
under either the Agriculture Committee bill or the Commerce Commit-
tee amendment the Administrator could proceed to a hearing to deter-
mine whether suspension was appropriate. If, as a result of that hear-
ing, 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 mean-
time, 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 addi-
tional times in which judicial review could be sought which are not
provided for by the agriculture bill. On page 95, line 11, the Agri-
culture 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 hearing before the Administrator." This provision would be
stricken by the Commerce 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 in-
formation and again without a hearing suspend registration. The Com-
merce Committee amendment permits this without limitation. The
[p. 48]
-------
2066 LEGAL COMPILATION SUPPLEMENT I
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 subcommit-
tee 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 En-
vironmental 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 recom-
mendation 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 Admin-
istrator, 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.
and at page 12:
"With respect to Amendments No. 1 and No. 4 the full Com-
mittee adopted compromise proposals as follows:
The compromise proposal for Amendment 1—
"(a) makes registration prima facie evidence of com-
pliance 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 pro-
ceedings 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) ;
-------
PESTICIDES STATUTES AND LEGISLATIVE HISTORY 2067
"(d) provides for hearings on suspensions except in
emergency situations;
"(e) provides for judicial review by the court of ap-
peals 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 ad-
versely 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 Adminis-
trator 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 Ad-
ministrator 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, how-
ever, 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 anal-
ogous 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 Administra-
tor issues a decision. If, after the hearing, the Administra-
tor 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-
[p. 50]
-------
2068 LEGAL COMPILATION SUPPLEMENT I
inal jurisdiction and appeals from cases which have already been ad-
ministratively 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.
COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRY ON AMEND-
MENT 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 have advised 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 regis-
tration 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 ef-
ficacious. '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 Com-
mittee 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 prob-
lem. 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 to 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
[p. 51]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2069
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, ME. HENRY M. GOODYEAR, JR.,
DIRECTOE, FEDEEATED PECAN GROWERS OF THE UNITED STATES, DR.
DONALD ISLEIB, SCIENTIFIC ADVISER TO THE DIRECTOR, MICHIGAN
DEPARTMENT OF AGRICULTURE, AND MR. ERRETT DECK, ASSISTANT
DIRECTOR, WASHINGTON 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. G'ood-
year, 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,
Honolulu, July 13,1972.
Hon. HIRAM L. FONG,
U.S. Senate, New Senate Office Building, Washington, D.C.
DEAR HIRAM : 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 amend-
ments 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 pur-
poses of this act, but shall authorize distribution and use only within
such State and shall not be effective for more than 90 days if dis-
approved 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 rise 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 he 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
[p. 52]
-------
2070 LEGAL COMPILATION—SUPPLEMENT I
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 im-
porting 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 sums 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 biiildup 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. BXJKNS.
FEDERATED PECAN GROWERS' ASSOCIATIONS 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 patholpgists
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
[p. 53]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2071
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 its place 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 registra-
tion 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
Bnvironmental 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 lam-
prey with a chemical, TFM.
The successful restoration of lake trout and the introduc-
tion 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 pre-
viously existed.
We have the cereal leaf beatle, which is an invader from
Europe first found in Michigan in 1962, and a vigorous chemi-
[p. 54]
-------
2072 LEGAL COMPILATION—SUPPLEMENT 1
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 intro-
duce 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-triflu-
oromethyl-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 De-
partment of Natural Resources to find a successful lamprey
control chemical. Once found, these agencies requested regis-
tration 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 swim-
mers' 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. Depart-
ment of Interior and Michigan Department of Natural Re-
sources 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: r _„..
[p. 55]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2073
Cereal leaf beetle control on small grains. The cereal leaf
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 chem-
ical 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 pro-
gram did not introduce new use pattern or food residues; it
simply extrapolated well-known properties and uses of exist-
ing, 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
ISTation 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 include the strawberry sap beetle, the strawberry clip-
per, climbing cutworms, the white apple leafhopper, the
plum curculio, the American plum borer, the red-humped
oakworm, and the black vine weevil. Each of these presents
a clear economic threat limited to Michigan. Our strawberry
growers 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 be-
lieve 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 would riot 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.
[p. 56]
-------
2074 LEGAL COMPILATION—SUPPLEMENT 1
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 con-
trol of honeybees infesting some buildings, the control of rat-
tle snakes in a 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 proced-
ures adjusted to the local level, or States are allowed to cope
with these needs, there will be either an undesirable "toler-
ance" 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 Com-
mittee 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 regis-
tration process and increase the backlog.
COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRY ON AMEND-
MENT NO. 13 OF THE COMMITTEE ON COMMERCE (RECORDKEEPING BY
PRIVATE ArPLJCATORS )
In brief, this amendment (page J07, lines 13 through 16) authorizes
the Administrator to require farmers, farmworkers and other private
applicators to maintain records 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 Admin-
istrator for carrying out the provision of this Act shall re-
quire 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 APPLICATOR.—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 com-
pensation other than trading of personal services between pro-
ducers of agricultural commodities) on the property of
another person. r -„-,
LP- °'J
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2075
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 con-
vincing evidence that there was any real need for the maintenance of
such records or the making of such reports or the filing of such docu-
ments 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 COMMITTEE ON AGRICULTURE AND FORESTRY ON AMEND-
MENT NO. 14 OF THE COMMITTEE 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 em-
ployees of the Environmental Protection Agency to enter private
dwellings and other places where pesticides or devices are held or
used, lo'hereas the Agriculture Committee Mil 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 Agricul-
ture Committee bill limited such inspection to pesticides or devices
"packaged, labeled, and released 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 ware 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 on 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.
[p. 58]
-------
2076 LEGAL COMPILATION SUPPLEMENT I
VIEWS OF SENATOR SAM J. EKVIN, JR., AMERICAN CIVIL LIBERTIES
UNION, AND THE CONGRESSIONAL RESEARCH SERVICE
The Committee obtained the following views on the constitutionality
of this amendment from Senator Sam J. Ervin, Jr., the American
Civil Liberties Union, and the Congressional Research Service.
U.S. SENATE COMMITTEE ON THE JUDICIARY,
SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS,
Washington, D.C., July 26,1972.
Hon. JAMES B. ALLEN,
U.S. Senate,
Washington, D.G.
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 crim-
inal 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 crim-
inal 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 pur-
pose, 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.
[p. 59]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2077
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.E. 10729 possession of the pesticides in question is a crime,
then a warrantless search would be no more constitutional than a "no-
knock" 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 sub-
stituting "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. ISTo longer would probable cause be re-
quired where a violation is suspected. Bather, the American people
would come to expect warrantless searches on homes and farmhouses
done in the guise of seeking out illegal pesticides. Under no circum-
stances, 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. ERVIN, Jr.,
Chairman.
AMERICAN CIVIL LIBERTIES UNION,
Washington, D.C., July %6,1972.
Hon. JAMES B. ALLEN,
New Senate Office Building,
Washington, 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)(l) (authorizing "inspection" and sam-
pling at the places where "pesticides or devices" are "held or vised")
intrudes on rights guaranteed by the Fourth Amendment.
The Supreme Court, recently upheld warrantless searches of busi-
ness premises. See e.g., 0 oil anode 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 dwell-
ings have not been sanctioned.
In Camara 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. Wyman v. James, 400 U.S. 309 (1971),
in which A.F.D.C. "home visits" were sanctioned, did not involve a
criminal sanction as is here the case.
In Section 9(a)(l) of H.R. 10729, as amended, the non-warrant
inspection of private dwellings and sampling is authorized. This al-
lows 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 nonwarrant in-
spections of business premises.
Sincerely,
CHARLES MORGAN, Jr.,
Director.
[p. 60]
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2078 LEGAL COMPILATION—SUPPLEMENT I
THE LIBRARY OF CONGRESS,
CONGRESSIONAL KESEARCH SERVICE,
Washington, 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 consti-
tutional issues are raised by sec. 9(a) of H.R. 10729, Ninety-Second
Congress, Second Session, (as reported by the Committee on Com-
merce), an Act to amend the Federal Insecticide Fungicide, and
Rodenticide Act. Sec. 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." Sec. 12(a)
(2) (B) provides that it shall be unlawful "to refuse to allow the in-
spection 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. Es-
tablishments in which pesticides are produced are required by section
7 to be registered with the Administrator of the Environmental Pro-
tection 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 Su-
preme 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
[p. 61]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2079
"the basic purpose" of the Fourth Amendment "to safeguard the pri-
vacy and security of individuals against arbitrary invasions by gov-
ernment 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 munici-
pal code involved requires inspection of his premises, no way of know-
ing the lawful limits of the inspector's power to search, and no way of
knowing whether the inspector himself is acting under proper authori-
zation. These are questions which may be reviewed by a neutral magis-
trate 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 adminis-
trative 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 enforce-
ment" 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 adminis-
trative 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 "administra-
tive 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-
vision 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.
[p. 62]
525-313 O - 73 - 17
-------
2080 LEGAL COMPILATION—SUPPLEMENT I
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,
18 U.S.C. 923 (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 evi-
dence 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 Biswell 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 Biswell, 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 effec-
tive inspection. Each licensee is annually furnished with a revised
compilation of ordinances which describe his obligations and define
the inspector's authority. 18 U.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 Colonnade-Biswell rule permitting warrant-
less 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 honies 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 Attorney.
[p. 63]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2081
COMMENTS OF THE COMMITTEE ON AGRICULTURE AND FORESTRY ON AMEND-
MENT NO. 15 OF THE COMMITTEE ON COMMERCE (SPECIFIC AUTHORIZA-
TION)
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 Fed-
eral 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 mil-
lion 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 Leg-
islation. 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 (Re-
port Number 92-838) and the Committee on Commerce (Report Num-
ber 92-970). Separate cost estimates for these alternative bills are en-
closed, 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 1977rassuming 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, Fun-
gicide 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 authorised by Section
[p. 64]
-------
2082 LEGAL COMPILATION—SUPPLEMENT I
87 of the Commerce Committee version are less than the amount already
committed in Fiscal Tear 1978, and budgeted in Fiscal fear 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 im-
posed 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. RTJCKELSHAUS,
Administrator.
Attachment.
Five Year Fiscal Projection of Costs—Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA) (Current Law)
^
[In millions of dollars]
Gross costs:
Fiscal year 1972 18.3
Fiscal year 1973 20.3
Fiscal year 1974 22.4
Fiscal year 1975 24. 3
Fiscal year 1976 25. 7
Fiscal year 1977 J 27.2
The funding requirements estimated above cover the direct and
identifiable indirect costs of EPA's current pesticide programs. While
FIFEA 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 and control, general assistance, training, and
general supervision and support. Excluded are those indirect support
costs borne by the Agency's Agency and Regional Management ac-
counts, and other indirect costs not directly applicable to Pesticide
efforts. EPA elements with a major involvement in the Pesticide pro-
gram 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. r
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2083
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 year—
1973 1974 1975 1976 1977
Grosscosts 15.1 23.0 31.9 33.5 33.0
Disposal.. (1.8) (1.7) (7.6) (6.6) (5.0)
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 1976 1977
Grosscosts 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 AGRICULTURE 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" should be 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 EESTJLT or 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 avail-
able 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: - [p66]
-------
2084 LEGAL COMPILATION—SUPPLEMENT I
U.S. SENATE,
COMMITTEE ox AGRICULTURE AXD FORESTRY,
Washington, D.C., July 27,1972.
Hon. WARREN G. MAGNUSON,
Chairman, Committee on Commerce, U.S. Senate,
Washington, D.C.
DEAR MAGGIE : In order to protect the jurisdiction of your Commit-
tee over "fisheries and wildlife, including research . . . and conserva-
tion" I acceded to your request of December 16, 1971, to have the
pesticide bill, H.R. 10729, referred to your Committee after consider-
ation 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) Kestrict appropriations to carry out this law to an amount clear-
ly below what is needed.
(3) Visit unnecessary losses on such American industries as Ha-
waiian 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 farm-
ers 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 Ag-
riculture and Forestry. I know that your Committee did not have an
adequate opportunity to consider this measure and did not hear many
of the witnesses who asked to be heard 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 Com-
mittee has had jurisdiction over all previous revisions of that Act and
will undoubtedly have jurisdiction over all future amendments to it.
It also has responsibility for legislative oversight over the administra-
tion of that law. The task of the Committee on Agriculture and For-
estry in carrying out these responsibilities will be made most difficult
in confusing surplusage, errors, and the other provisions described
above are included in the law.
While almost all of the amendments recommended by your Commit-
tee had been carefully studied and rejected by the Committee on Ag-
[p. 67]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2085
riculture and Forestry, which at two seperate hearings heard all wit-
nesses 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 re-
port be filed for that purpose. A committee print of such a report has
been prepared and is attached for your information, but much more
work will have to be done on 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,
HERMAN E. TALMADGE,
Chairman.
On August 1, the Chairman of this Committee received the follow-
ing letter from the Chairman of the Commerce Committee and on the
same day gave the following reply.
U.S. SENATE,
COMMITTEE ON COMMERCE,
Washington, D.C., July 28, 1972.
Hon. HERMAN E. TALMADGE,
Chairman, Committee on Agriculture and Forestry, V.8. Senate,
Washington, D.C.
DEAR MR. CHAIRMAN : 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,
WARREN G. MAGNUSON, x
Chairman.
AUGUST 1,1972.
Hon. WARREN G. MAGNUSON,
Chairman, Committee on Commerce,
Washington. D.C.
DEAR MAGGIE : Thank you for your letter of July 28.1 would be very
happy to have the staff' of the Committee on Agriculture and Forestry
work with your Committee staff. However, I would under no circum-
[p. 68]
-------
2086 LEGAL COMPILATION—SUPPLEMENT I
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 approved by the Committee on
Agriculture and Forestry immediately if \ve could find a Avay of agree-
ing to Senator Allen's proposal. That revision represents many hours
of work by the staff of the Committee on Agriculture and Forestry
with environmentalists, EPA, pesticide manufacturers, and others.
There now probably remains less than two months to obtain final en-
actment of this important bill, and Congress will be in recess for the
Eepublican 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 upon.
EXPLANATION OF COMPROMISE AMENDMENT IN THE NATURE OF A
SUBSTITUTE
The substitute consists of the amendment recommended by the Com-
mittee on Agriculture and Forestry, plus—
(1) Commerce Committee Amendment No. 1 (registration cri-
teria) 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 lan-
guage.
(2) a substitute for Commerce Committee Amendment No. 2.
The substitute retains the exclusive use of data provision recom-
mended by this Committee; but provides in addition for a manda-
tory licensing system under which permission to use test data in
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 with
respect to any matter considered by such committee. This appears
to be in accord with existing general government 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
[p. 69]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2087
if such export would result in adverse effects on the environ-
ment of the United States.
Unlike the Commerce Committee amendment, this provision cor-
rectly makes the producers, rather than the pesticides, subject to
the recordkeeping requirements; retains the Agriculture Com-
mittee provision requiring notice to foreign governments of pesti-
cides banned in the United States; provides a penalty for exporta-
tion contrary to its provisions; would require the Administrator,
in determining whether export of a pesticide should be banned, to
consider whether such a ban would merely shift pro'duction 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 on the environment of the United States". The
Commerce Committee 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
(confidentiality). The substitute would—
(A) keep the Agriculture Committee provision requiring
submission of all test data requested by the Administrator;
(B) delete the Agriculture Committee provision requiring
the Administrator to make the data called for in the regis-
tration statement and other scientific information available to
the public within thirty 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 Admin-
istrator and any person to be made available to the public
upon identifiable request and at reasonable cost; but only sub-
ject 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 Ad-
ministrator and "manufacturers", would not have been con-
ditioned on non-interference with administration, and would
not have been limited as described in (C) above.
(E) prohibit disclosure of trade secrets, confidential finan-
cial information, or commercial information the disclosure of
[p. TO]
-------
2088 LEGAL COMPILATION—SUPPLEMENT I
which may give a competitor a competitive advantage, except
to other federal officials, in judicial proceedings, in proceed-
ings 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-discre-
tionary acts or failure to investigate and prosecute violations. Un-
like 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 volun-
tary participation.
(8) a substitute for Commerce Committee Amendment 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 shall 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 par-
ticipation by other parties (in addition to 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 appro-
priation for fiscal 1973,1974, and 1975 not to exceed, respectively,
$40 million, $52 million, and $64 million (in lieu of the Conr.nerce
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, Drug, 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
biU: [p. 71]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2089
TRADE SECRETS
LEGISLATIVE HISTORY RE TRADE SECRETS APPROVED BY LEN BICKWIT
SEPTEMBER 22, 1972, SUBJECT TO FINAL APPROVAL BY BERNIE NASH
(1) Information that constitutes a trade secret, financial informa-
tion 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 subsec-
tion (c)(l).
General approval is given to the definition of "trade secret" as in-
corporated in the RESTATEMENT OF TOETS.
In determining whether given matter constitutes a trade secret, con-
sideration shall be given to—
(a) the extent to which the data is independently known to
outsiders or is need 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 business, 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.
Deliberation 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 secrecy of the data as much as
possible and insure it will not fall into the hands of a competitor.
Legislative intent toith respect to section 3(c) (1) (D)
The change back to section 3(c) (1) (D) as reported by the Agricul-
ture Committee with additions has essentially 2 purposes:
(1) To authorize the Administrator to require a description of
all relevant tests and their results and
(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 Administrator1
in making determinations of the adequacy of the test data submitted
in connection with other applications. As concerns use of such data
in support of another application without permission of the originator
of the test data, however, it is recognized that in certain circumstances
it might 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,
unnecessary duplicative testing would represent a wasteful, time-con-
suming, and costly process resulting in a substantial misallocation of
resources. Thus it was decided that fairness and equity require a shar-
[p. 72]
-------
2090 LEGAL COMPILATION—SUPPLEMENT I
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 % additional applicants. r ^ -.
LP- '^J
o
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2091
l.lk(3) SENATE COMMITTEE ON COMMERCE
S. REP. No. 92-970, 92d Cong., 2d Sess. (1972)
FEDERAL ENVIRONMENTAL PESTICIDE CONTROL
ACT OF 1972
JULY 19, 1972.—Ordered to be printed
Mr. HART, from the Committee on Commerce,
submitted the following
REPORT
[To accompany H.E. 10729]
The Committee on Commerce, 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, reports
favorably thereon with amendments and recommends that the bill
as amended do pass.
The amendments are as follows:
1. Registration Criteria
On page 69, line 6, strike out "substantial" and insert in lieu thereof
"unreasonable".
On page 72, lines 8 and 9, strike out "substantial" and insert in lieu
thereof "unreasonable".
On page 76, line 11, strike out "substantial" and insert in lieu thereof
"unreasonable".
On page 76, beginning with line 24, strike out all down through line
4 on page 77, and insert in lieu thereof the following:
"(bb) UNREASONABLE ADVERSE EFFECTS ON THE ENVIRON-
MENT.—The term 'unreasonable adverse, effects on the en-
vironment' means any risk to man or the environment, taking
into account the economic, social and environmental costs and
benefits of the use of any pesticide, including the availability
of alternative means of pest control."
On page 80, line 13, strike out "substantial" and insert in lieu thereof
"unreasonable".
On page 80, strike out lines 14 and 15.
On page 82, line 9, strike out "substantial" and insert in lieu thereof
"unreasonable".
On page 82, line 20, strike out "substantial" and insert in lieu thereof
"unreasonable". , r
-------
2092 LEGAL COMPILATION—SUPPLEMENT I
On page 83, line 13, strike out "substantial" and insert in lieu thereof
"unreasonable".
On page 84, line 2, strike out "substantial" and insert in lieu thereof
"unreasonable".
On page 88, line 10, strike out "substantial" and insert in lieu thereof
"unreasonable".
On page 88, line 17, strike out "substantial" and insert in lieu thereof
"unreasonable".
On page 89, line 17, strike out "substantial" and insert in lieu thereof
"unreasonable".
On page 90, line 1, strike out "substantial" and insert in lieu thereof
"unreasonable".
On page 109, line 7, strike out "substantial" and insert in line thereof
"unreasonable".
#. Use of Test Data,
On page 78, beginning with the comma after "based" in line 13, strike
out all down through "registration" in line 17.
8. Advisory Committees
On page 94, immediately after the period in line 19, insert the follow-
ing : "Each such committee shall include qualified scientists not more
than one-third of which shall have an economic interest in the chemical
industry. None of the members of such committee shall have any eco-
nomic interest in the pesticide which is the subject of referral."
4- Penalties
On page 111, line 2, strike "$1,000" and insert in lieu thereof
"$10,000".
5. Exports
On page 114, line 21, strike out the period and insert in lieu thereof
a comma and the following: "except that (1) a statement which com-
plies with paragraphs (A) through (E) of section 3(c)(l) shall be
submitted in support of any such pesticide to the Administrator, (2)
such pesticide shall be subject to section 8, and (3) no pesticide may
be exported unless the Administrator determines that the export of
such pesticide will not result in unreasonable adverse effects on the en-
vironment of the United States. If the Administrator determines that
such adverse effects will result, any person adversely affected by such
determination shall have the same remedies as provided for registrants
in section 6."
On page 114, beginning with line 22, strike out all down through line
3 on page 115 and insert in lieu thereof the following:
" (b) NOTICES FURNISHED TO FOREIGN GOVERNMENTS.—Sub-
ject to section 10 of this Act, the Administrator shall furnish
to the government of the foreign nations to which any pesti-
cide may be exported (1) a notice of the availability of the
statement required under sections 3(c) (1), (2) all labels ap-
proved under section 3, and (3) all orders of suspension and
all notices of cancellation or change in classification issued
pursuant to section 6." r _,
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2093
6. Confidentiality
On page 78, beginnir^ with line 11, strike out all down through
"based" in line 13 and iusert in lieu thereof the following:
" (D) a full description of any tests offered in support of the
application and the results thereof."
On page 79, beginning with "Except" in line 6, strike out all down
through line 11.
On page 101, line 15, immediately following "GENERAL.—" insert
"Copies of any communication, document, report or other informa-
tion received by the Administrator from any manufacturer or sent
by the Administrator to any manufacturer shall be made available
to the public upon identifiable request, and at reasonable cost, unless
such information may not be publicly released under the terms of sub-
section (b) of this section."
On page 101, beginning with line 21, strike out all do\vr ^~nugh
line 5 on page 102 and insert in lieu thereof the following:
" (b) DISCLOSURE.—(1) The Administrator or any officer or
employee of the Environmental Protection Agency or any
committee referred to in subsection (d) of section 6 of this
Act shall not disclose any information which the Administra-
tor determines concerns or relates to a trade secret referred to
in section 1905 of Title 18, United States Code, except that
such information may be disclosed by the Administrator—
" (A) to any other Federal department, agency or offi-
cial for official use if such department, agency, or official
requests such information and has a reasonable need for
such information ;
"(B) to committees of Congress having jurisdiction
over the subject matter to which the information relates :
"(C) in any judicial proceeding under a court order
formulated to'preserve the confidentiality of such in-
formation without impairing the proceeding;
" (D) if relevant in any proceeding under this Act, ex-
cept that such disclosure shall preserve the confidential-
ity to the extent possible without impairing the proceed-
ing; and
(E) to the public in order to protect its health, after
the manufacturer of any product to which the informa-
tion pertains has been given notice and an opportunity,
for a period of 15 days following such notice, to comment
in writing or to discuss in closed session the matter relat-
ing to the disclosure of such information, if the delay re-
sulting from such notice and opportunity for comment
or discussion would not be detrimental to the public
health.
In no event shall the names or other means of identification of
injured persons be made without their express written consent.
"(2) Nothing contained in this section shall 'be deemed to
require the release of any information described by subsection
(b) of section 552 of title 5, United States Code, or which is
otherwise protected by law from disclosure to the public.
[p. 3]
-------
2094 LEGAL COMPILATION—SUPPLEMENT I
" (c) Any communication from a person to the Administra-
tor or any other employee of the Environmental Protection
Agency concerning a matter presently under consideration in
a rulemaking or adjudicative proceeding in the Environmen-
tal Protection Agency shall be made a part of the public file
of that proceeding unless it is a communication entitled to pro-
tection under subsection (b) of this section.
"(d) In the event of a dispute between any manufacturer
who has submitted information in support of a registration.
and the Administrator as to whether such information con-
stitutes a trade secret not subject to disclosure, then such dis-
pute shall be submitted to the Attorney General of the United
States for his determination which shall be final. In any such
dispute, the determination of the Attorney General shall be
rendered within 30 days of submission to him, and shall be
communicated to the Administrator and to the manufacturer
in writing."
7. Citizens Suits
On page 114, between lines 14 and 15, insert the following:
"SEC. 16. CITIZEN CIVIL ACTIONS.
" (a) Except as provided in subsection (b) of this section,
any person may commence a civil action for injunctive relief
on his own 'behalf whenever such action constitutes a case or
controversy—
"(1) against any person (including (A) the United
States, and (B) any other governmental instrumentality
or agency to the extent permitted by the eleventh amend-
ment to the Constitution) who is alleged to be in violation
of (1) any requirement under section 3(a) of this Act,
(2) any condition of registration imposed by the Admin-
istrator, (3) a suspension or cancellation order under
section 6 of this Act, or (4) the prohibition against misuse
of a pesticide under section 12 (a) (2) (H) of 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 Ad-
ministrator. Any action brought against the Administra-
tor under this paragraph 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) of this section—
"(A) prior to sixty days after the plaintiff has
given notice of the violation (i) to the Administra-
tor, and (ii) to any alleged violator of the regula-
tion or order, or
" (B) if the Administrator or the Attorney General
has commenced and is diligently prosecuting a civil
action in a court of the United States to require com-
pliance with the regulation or order, but in any such
[p. 4]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2095
action any person may intervene as a matter erf right;
"(2) under subsection (a) (2) of this section 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, the Administrator or
the Attorney'General, if not a party, may intervene as a mat-
ter 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 determines 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 regu-
lation or order or to seek any other relief.
" (f) For purposes of this section, the term "person" means
an individual, corporation, partnership, association, State,
municipality, or political subdivision of a State or any agency
of the Federal government.
"(g) When any actions brought under this subsection in-
volving the same defendant and the same issues of violations
are pending in iwo or more jurisdictions, such pending pro-
ceedings, upon application of the defendant reasonably made
to the court of one such jurisdiction, may, if the court in its
discretion so decides, be consolidated for trial by order of
such court, and tried in (1) any district selected by the de-
fendant 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 giving all parties reasonable notice and
opportunity to be heard) may by order, unless good cause to
the contrary is shown, specify a district of reasonable prox-
imity 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, and re-
designate any internal cross-references affected thereby.
8. Hearing Structure
On page 94, beginning with "Upon" in line 2, strike out all down
through the period in line 13, and insert in lieu thereof the following:
"All public hearings authorized by this subsection shall consist of the
oral and written presentation of data or arguments in accordance with
such conditions or limitations as the Administrator may make appli-
cable thereto. The right to subpoena documents shall be granted to any
party whenever the Administrator considers it appropriate. Any inter-
ested person may intervene in such proceedings and participate fully
as a party." [p. 5]
525-313 O - 73 - 18
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2096 LEGAL COMPILATION—SUPPLEMENT I
9. Protection of Farmworkers
On page 71, line 25, strike the semicolon and insert in lieu thereof
a comma and the following: "including the protection of the health of
farmers, farmworkers, and others who may come in contact -with such
pesticides or pesticide residues;"
On page 72, line 5, strike out the semicolon and the word "or" and
insert in lieu thereof the following: ", including the protection of the
health of farmers, farmworkers, and others who may come in contact
with such pesticides or pesticide residues; or"
On page 78, line 20, strike the semicolon and insert in lieu thereof
a colon and the following: "Provided further, That the Administrator
shall not rely on test results submitted pursuant to this subsection un-
less he determines that (i) the tests were conducted in accordance with
applicable Federal, State, or local law and (ii) participation in the
tests was the result of a free, voluntary, and informed choice by each
participant;".
On page 82, line 22, immediately following "applicator," insert
"farmer, farmworker, or other person who may come in contact with
the pesticide or pesticide residues."
On page 85, line 20, strike out the period and insert in lieu thereof
a comma and the following: "and the competence of an individual
shall include the ability to undertake such measures as the Administra-
tor may by regulation require to protect the health of farmers, farm-
workers, and others who may come into contact with such pesticides or
pesticide residues.".
10. Authority of local governments to regulate the use of pesticides
On page 120, line 6, immediately following "State" insert "or local
government"; and on line 7 strike "in the State" and insert in lieu
thereof "within its jurisdiction".
On page 120, line 10, immediately following "State" insert "or local
government".
11. Suspension
On page 91, line 10, immediately following "pesticide" insert "and
has given notice of such suspension order to the registrant. Prior
to issuing such suspension order, the Administrator, if necessary to
determine if ah imminent hazard exists, may conduct an expedited
hearing in accordance with paragraph 2 of this subsection. Following
any such suspension order, the procedures of subsection (d) of this
section with respect to the Administrator's notice of his intention to
cancel the registration or change the classification of a pesticide shall
be held in an expeditious manner."
On page 91, strike all of lines 11 through 25, and on page 92 strike
all of lines 1 through 7 and all through "rules." on line 8; and insert
in lieu thereof the following:
"(2) EXPEDITED HEARING.—Any expedited hearing held
prior to a suspension order shall consist of the oral and writ-
ten presentation of data or arguments in accordance with such
conditions or limitations as the Administrator may make
applicable thereto. The right to subpoena documents shall
be granted to any party whenever the Administrator considers
[p. 6]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2097
it appropriate. Any interested person may intervene in such
proceeding and participate fully as a party."
On page 92, strike all of lines 14 through 22, and renumber the
following paragraph accordingly.
On page 92, line 24, strike "following a hearing".
On page 93, line 4, strike all following "appeals", strike all of lines
5 through 15, and all through "section" on line 16.
On page 112, line 23, strike all following "Act", strike line 24, and
strike "hearing and other" on line 25.
On page 113, line 4, strike all following "of", and on line 5, strike
all through "hearing,"; and insert in lieu thereof "(1) any cancel-
lation order, suspension order, or order to change classifications, (2)
any agency refusal to cancel or suspend registrations or change classi-
fications, or (3) any other order issued by the Administrator follow-
ing a public hearing,".
On page 113, line 6, immediately following "order", insert "or
refusal".
On page 113, strike out line 10 and insert in lieu thereof "order or
refusal, a petition praying that the order or refusal be set aside in
whole".
On page 113, line 16, immediately following "Code" insert "or, if
there were no proceedings, the relevant documents of which his record
is comprised."
On page 113, line 15, immediately following "order" insert "or
refusal".
On page 113, line 18, immediately following "order" insert "or
refusal".
On page 113, line 20, immediately following "order" insert "or
refusal".
On page 113, line 23, immediately following "order", insert "or
refusal".
On page 114, line 4, immediately following "order" insert "01
refusal".
12. Authority of the States to Register Pesticides
On page 120, strike out lines 13 through 22, and insert in lieu thereof
the following:
"(c) A State may recommend registration for pesticides
formulated for distribution and use within that State to meet
specific local emergency needs. If such State is certified by
the Administrator as capable of preventing unreasonable ad-
verse effects on the environment from the use of such pesti-
cides by adopting procedures similar to those contained in
this Act, and if registration for such use has not previously
been denied, disapproved, or cancelled by the Administrator,
such recommendation shall be deemed registration under sec-
tion 3 for all purposes of this Act consistent with this section.
Copies of all data pertaining to registration shall be for-
warded to the Administrator, but the registration under this
section shall not be effective for more than 90 days unless
extended by the Administrator or unless the pesticide is regis-
tered by him in accordance with section 3 of this Act."
[P- 7]
-------
2098 LEGAL COMPILATION—SUPPLEMENT I
13. RecordJceeping ~by private applicators
On page 102, strike out lines 8 through 11, and strike out "(b)"
in line 12.
J4. EPA RigU-of-Entry
On page 98, line 14, delete "for distribution or sale" and insert
"or used."
On page 98, lines 16 and 17, delete "packaged, labeled, and released
for shipment,".
On page 98, line 22, delete "for distribution or sale" and insert "or
used."
15. Specific Authorization
On page 122, strike lines 22 through 24 and all through "1975" on
line 25 inclusive and insert in lieu thereof the following:
"There is authorized to be appropriated to carry out the
provisions of this Act not to exceed $15,000,000 for the fiscal
year ending June 30, 1972, not to exceed $15,000,000 for the
fiscal year ending June 30,1973, not to exceed $25,000,000 for
the fiscal year ending June 30, 1974, and not to exceed $35,-
000,000 for the fiscal year ending June 30, 1975."
SUMMARY or THE LEGISLATION
The proposed legislation revises the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA). FIFRA now requires that pesticides
be registered by the Environmental Protection Agency before they
may move in interstate commerce. In registering a pesticide, EPA
must determine that they are safe and efficacious. Provision is made
for removing a pesticide from the market following administrative
proceedings or summarily if an imminent hazard exists. FIFRA does
not prohibit the misuse of a pesticide, nor does it regulate pesticides
moving solely in intrastate commerce.
As amended by the Committee on Commerce, the proposed legisla-
tion provides—
(1) that all pesticides moving in interstate or intrastate com-
merce be registered with EPA ;
(2) that EPA may deny or remove a registration upon a show-
ing of unreasonable risks to the environment (including man) in
registering a pesticide;
(3) that EPA would be authorized to classify pesticides for
general or restricted use depending upon the hazards;
(4) that EPA may cancel registrations following administra-
tive review, and may summarily suspend registrations in the case
of a imminent hazard;
(5) that establishments producing pesticides be registered with
EPA;
(6) that the Administrator may issue stop-sale, use, removal,
and seizure orders with respect to any pesticide in violation of the
Act; and
(7) that citizens be authorized to bring injunctive suits against
certain violators of the Act and against EPA for failing to per-
form mandatory duties, [p. 8]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2099
NEED FOR THE LEGISLATION
As this country has grown and its standard of living increased, the
need for more food and freedom from disease has increased dramatical-
ly. As a result, farm production has likewise increased and Americans
have become less willing to tolerate insects and other disease-carrying
organisms. As a means of meeting these needs, farmers and others have
turned increasingly to the use of pesticides.
At the same time, society has become increasingly sensitive to the
abuses certain pesticides have inflicted upon man and the environment.
Past experience with pesticides like DDT, 2,4,5-T and other persistent
or toxic pesticides have forced us to look closely not only at tne mecha-
nisms by which a pesticide is initially approved for use but also at the
mechanisms by which a pesticide is removed from use. President Nixon
outlined the problem in his February 8, 1971, environmental message:
"Pesticides have provided important benefits by protecting
man from disease and increasing his ability to produce food
and fiber. However, the use and misuse of pesticides has be-
come one of the major concerns of all who are interested
in a better environment. The decline in numbers of several
of our bird species is a signal of the potential hazards of pesti-
cides to the environment. We are continuing a major research
effort to develop non-chemical methods of pest control, for
we must continue to rely on pesticides for the foreseeable fu-
ture. The challenge is to institute the necessary mechanisms
to prevent pesticides from harming human health and the
environment.
Currently, Federal controls over pesticides consist of the
registration and labeling requirements of the Federal In-
secticide, Fungicide and Kodenticide Act. The administra-
tive processess contained in the law are inordinately cumber-
some and time consuming, and there is no authority to deal
with the actual use of pesticides. The labels approved under
the Act specify the uses to which pesticide may be put, but
there is no way to insure that the label will be read or obeyed.
The comprehensive strengthening of our pesticide control
laws is needed."
Recent experience under FIFRA amply illustrates the delays that
EPA has encountered in removing a pesticide from the market. On
June 2, 1972, Administrator Ruckelshaus signed an order which will
remove DDT from the market for most uses. The original notice of
intent to cancel was issued on January 15, 1971. Thus fifteen months
were consumed by advisory committee referrals, public hearings, and
decision-making by EPA. Other examples include: Amitrol, 21/5 years;
mercury algicide, fourteen months; and Mirex, thirteen months. The
initial notice of cancellation of certain uses of the herbicide 2,4,5,-T
was issued on May 1, 1970. Today, only advisory committee action is
completed, with public hearings and final decision yet to come.
While a proper review of any intention to cancel a registration is an
obvious necessity, delays of the sort encountered under current law
are needless. [p. 9]
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2100 LEGAL COMPILATION—SUPPLEMENT I
LEGISLATIVE BACKGROUND
On February 10, 1971, Administrator Ruckelshaus of the Envi-
ronmental Protection Agency, transmitted by executive message a leg-
islative proposal which was introduced by Senator Packwood as §.
745, the Federal Environmental Pesticide Control Act of 1971. The
bill was referred to the Senate Committee on Agriculture and For-
estry and its House counterpart (H.R 4152) to the House Commit-
tee on Agriculture.
On November 9, 1971, the House passed a clean bill, H.R. 10729.
The House-passed bill was subsequently referred to the Senate Com-
mittee on Agriculture and Forestry. On March 7,1972, Senators Hart
and Nelson introduced a series of amendments to H.R. 10729 (Amend-
ment Nos. 1003 through 1013) and on March 8 Senator Stevenson
introduced Amendment No. 1017 to that bill. On June 7, 1972, the
Committee on Agriculture and Forestry reported H.E. 10729. The bill
adopted two of the Hart-Nelson amendments but did not adopt the
Stevenson amendment.
Following the Agriculture Committee' action, the bill was subse-
quently re-referred to the Committee on Commerce for a period of 30
days, exclusive of recesses in excess of three days. The Subcommittee
on the Environment held hearings on the proposed legislation on
June 15 and 19,1972. On June 23 the full committee ordered the leg-
islation to be reported with amendments. These amendments include
the Stevenson amendment, the substance of the remaining Hart-Nelson
amendments, and some additional changes.
EXPLANATION OF COMMITTEE ON COMMERCE AMENDMENTS
The Committee on Commerce adopted a series of 15 amendments
to H.R. 10729 as reported by the Committee on Agriculture and
Forestry. The following is a brief explanation of each of the pro-
posed changes in the bill:
(1) Registration Criteria
The amendment substitutes the term "unreasonable adverse effects
on the environment" for "substantial adverse effects on the environ-
ment". As this phrase forms the pivotal criterion for registration of
a pesticide and other actions under the Act, the definition is of key
importance. As denned in the Agriculture Committee bill, the term
"substantial adverse effect on the environment" means "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". If this language were to remain intact, it is
feared that the courts, in interpreting this term, would rule that a
"substantial" level of adversity must be reached before the Environ-
mental Protection Agency invokes the necessary balancing of risk
versus benefit in determining whether a pesticide ought to be regis-
tered. In other words, if a pesticide poses "significant" but not "sub-
stantial" adverse effects and is of such low utility that its use would not
be justified, EPA could be powerless to prevent the registration of
that pesticide or to remove it once registered. Under the definition
of "unreasonable adverse effects on the environment" adopted by the
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2101
Committee on Commerce, the bill on its face would require that EPA
make a full weighing of competing interests in making its determina-
tions. Thus, it is intended that any adverse effect ought not to be tol-
erated unless there are overriding -benefits from the use of a pesticide.
In its remarks on the definition of "substantial adverse effects on
the environment" the Environmental Protection Agency has indi-
cated it would interpret the term "substantial adverse affects on the
environment" in accordance with the intention of the amendment
of the Committee on Commerce. As the Committee on Agriculture
and Forestry has not rejected this interpretation, it is assumed that
that committee agrees. However, to avoid any possible misinterpre-
tation of the phrase, the Committee on Commerce recommends the
revised language.
Additionally, the amendment eliminates language from the pro-
Eosed legislation which states "The Administrator shall not make any
ick of essentiality a criterion for denying registration of any pesti-
cide." The basis for the committee's action is that the meaning of
the sentence in question is unclear. 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 cir-
cumstances the pesticide is not "essential" for the well-being of so-
ciety. Under another reading, the doctrine merely mandates con-
sideration of the availability of less hazardous substitutes as one
of the interests to be balanced in determining whether a considera-
tion should be registered. If the first of these readings were accepted
universally, the committee would be willing 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 and effective 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 under that
reading, the committee regards language which would reject the
doctrine outright as dangerous. If "pesticide A" is safer than "pesti-
cide B", this is certainly a relevant consideration in the evaluation
of an application for the registration of "B". All things being equal,
it argues forcefully against approval of the registration. Any lan-
guage which could be constrained as removing that consideration
from those which EPA might legitimately take into account should
be eliminated. While the record indicates that neither EPA nor the
Agriculture Committee would so construe it the Committee on Com-
merce avoids the danger of misconstruction by striking the language
in question.
In deleting this provision, the committee does not intend that the
availability of less hazardous substitutes will invariably be the con-
trolling criterion for granting or denying registration. As the Com-
mittee on Agriculture report states on page 20, "pests may develop
an immunity to one pesticide, or undesirable side effects or deficien-
cies of one pesticide may show up, making the existence of alter-
nate pesticides desirable." The availability of less hazardous substi-
tutes is but one of many factors that EPA should consider in making
registration decisions. [p. n]
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2102 LEGAL COMPILATION — SUPPLEMENT I
(2) Use of Test Data
As reported by the Committee on Agriculture and Forestry, the pro-
posed legislation prohibits the use of test data submitted in support of
a registration application to be considered by the Administrator in sup-
port of any other application, except with the permission of the original
applicant. The amendment of the Committee on Commerce strikes this
language, and allows the use of such data. Without the proposed
amendment, the committee feels that barriers to entry in the pesti-
cides industry would result which go far beyond that envisioned by
our patent system. In effect, whether or not a pesticide has patent pro-
tection, a manufacturer wishing to register a pesticide previously reg-
istered would have to duplicate the required test data. As patent pro-
tection is granted to a substantial number of pesticides, this provision
of the bill imposes requirements on subsequent producers beyond the
licensing fees that a patent-holder may receive. In the extreme, a mo-
noply in the production of a pesticide could ensue if competitors are
unable to afford the sometimes costly safety and efficacy tests.
The prime reason stated for this provision in the Agriculture Com-
mittee bill is that without it the pesticides industry will lack incentives
to develop new pesticides. Yet, by requiring manufacturers to du-
plicate test results, portions of the money now spent on developing new
pesticides will undoubtedly be diverted to perform such duplicative
testing. Consequently, this provision could stifle the very incentives it
seeks to achieve.
In response to requests bv Senator Hart : the Department of Justice,
Dr. John Stedman of the University of Wisconsin, law school, and Dr.
John Flynn of the University of Utah law school commented on this
provision of the proposed legislation. The committee finds the argu-
ments of each persuasive. The following are their replies.
OFFICE or THE ATTORNEY GENERAL,
Washington, D.G. April 28, 1972.
Hon. PHILIP A. HART,
Chairman, Subcommittee on Antitrust and Monopoly, Committee on
the Judiciary, U.S. Senate, Washington, D.C.
DEAR SENATOR: This is in response to your request for the views
of the Department of Justice on H.E. 10729. a bill to amend the Fed-
eral Insecticide, Fungicide, and Rodenticide Act.
We understand that you are particularly concerned about the ex-
ception added to section 3(c) (1) (D) (p. 17, lines 12-16). Section
3(c)(l)(D) permits the Administrator to require the applicant to
submit test data in support of his application for registration of a
pesticide. It then prohibits the Administrator from considering such
data in support of any other application for registration without the
permission of the originator of the data. Section 3 (c) (2) provides
that the Administrator shall make avaialble to the public within 30
days after registration the data called for in the registration state-
ment, except for trade secrets, as provided under section 10, and sub-
ject to the limitations on the use of test data established by section
_
In economic terms, requiring the submittal of test data imposes an
expense on the first applicant to enable him to enter a given market.
For others trying to enter the same market, repetition of the same
[p. 12]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2103
tests imposes a similar entry fee. Such an entry fee, moreover, acts
regressively, for it is more of a burden to the small manufacturer.
Duplication of such tests is a waste to the economy and a needless and
undesirable burden on any subsequent applicant.
This limitation on the use of similar test data by the Administra-
tor, therefore, does not further the remedial purposes of the bill; it
serves rather to insulate the first applicant for registration from the
competition of later applicants. The first applicant has no inherent
right to exclude others from the use of this test data. According to the
Supreme Court in Sears, Roebuck & Co. v. Stiff el Co., 375 U.S. 225
(1964), and Compco Corp. v. Day-Brite Lightning, 376 U.S. 234
(1964), the one who develops such .material has to look to the patent
system for competitive protection, if any. If there should, however, be
a genuine trade secret problem, the Administrator is otherwise able,
of course, to protect trade secrets under section 10 of this bill. Section
3(c) (1) (D) in H.R. 10729 would, in effect, give trade-secret or patent-
type protection to test data.
The first applicant, on the other hand, may have been required to
make a substantial investment in tests to protect the needs of the pub-
lic. However, even where there is no patent or trade secret protection,
the applicant as first entrant still enjoys the benefit of lead time on the
market.
It is therefore recommended that an applicant seeking to register
the same compound as one already approved should not be required to
repeat these tests, and that the exception to section 3(c) (1) (D) and
the corresponding limitation in section 3(c) (2) be deleted.
If you determine that some recognition should be given to the first
entrant's efforts, a provision could be made establishing a brief period
of time (not more than 90 days) during which no registration appli-
cation would be processed if that application seeks to rely on disclosed
test data. Of course, such restriction would not apply if a registrant
submits independent data.
Subject to the above recommendation, whether or not this legisla-
tion should be enacted involves questions in respect to which the De-
partment of Justice defers to the Environmental Protection Agency.
The Office of Management and Budget has advised that there is no
objection to the submission of this report from the standpoint of the
Administration's program.
Sincerely,
RICHARD G. KLEINDIENST,
Acting Attorney General.
MADISON, Wis.,
February 21, 1972.
Hon. PHILIP A. HART,
Chairman, Subcommittee on Antitrust and Monopoly, Committee on
the Judiciary, U.S. Senate, Washington, D.C.
DEAR SENATOR HART : This is in response to your February 3 letter
asking for my comments on certain provisions in S. 10729, the pro-
posed "Federal Environmental Pesticide Control Act of 1971," now
pending in the Senate. Representative Kastenmeier, in a letter to you
dated January 21, 1971, has expressed the fear that provisions be-
latedly inserted in Section 3(c) (1) (D) of that bill would have'the
[p- 13]
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2104 LEGAL COMPILATION—SUPPLEMENT I
practical effect of extending quasi-patent protection to pesticide man-
ufacturers beyond the traditional 17 years. The questioned provision
consists of the italicized clause in subparagraph (c) (1) (D) reading
as follows:
"(D) If requested by the Administrator, a full description of the
tests made and the results thereof on 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 Adminis-
trator in support of any other application or registration . . ."
(Italics added.)
I share Congressman Kastenmeier's concern regarding this itali-
cized language, although my interpretation of the wording and anal-
ysis of its effects may be slightly different from his. Given the most
favorable interpretation (to the Administrator and the public) of the
provision, the clause appears to bar the Administrator from using
any data submitted by any applicant, whether that applicant is suc-
cessful or not, to support the grant of a registration to another appli-
cant, unless the first applicant lias given permission for such use. In
short, the Administrator is compelled in effect to say to later appli-
cants : "I have evidence that satisfies me that your pesticide is harmless,
but I cannot grant you a registration, unless yon come up with your
own independent proof of this fact." Such a procedure makes a trav-
esty of the regulatory process. Additionally, considering the cost (in
terms of money, effort and time) often involved in developing such
proof, this approach could seriously and substantially lessen effective
competition in the field by preventing or delaying the entrance of
qualified manufacturers because of their inability to come forth -with
the necessary evidence or their unwillingness to assume the expense
and uncertainties of doing so. Even if one of two additional suppliers
were successfully to break into the field, either through independent
collection of the necessary data or because the earlier applicant for
whatever reason had permitted his data to be used, the provision
would still remain as a barrier to further entrants. The burdens of
this arbitrary procedure would, of course, fall most heavily upon the
smaller would-be entrant.
There is almost always, in the regulatory process, an on-going
conflict between the salutary public purpose (in this case, protection
of the environment against damaging pesticides) and the danger that
the regulatory process will be misused by protecting those already in
the field through denial to qualified competitors of the right to enter.
The present proposal constitutes a real threat in the latter sense while
serving no useful purpose in the former. The only conceivable legiti-
mate purpose to be served by the proposal, as I see it, is the protection
of equities in one who has pioneered in the development of a drug—
and gone to considerable research effort and expense, especially with
respect to its impact on the environment—by preventing others from
getting a "free ride" on his experience with no cost to themselves. But
the "free ride" is endemic in our society and something to be legislated
against only occasionally (as in the patent system, the recent "tape
piracy" legislation, etc.) and after careful attention to the counter-
vailing adverse effects of such legislation.
This does not seem to be such a case, and certainly not one to be
resolved in the broad, loose terms of the clause here in question. (1)
[P- I*]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2105
There is no necessary correlation between the advantages gained by the
applicant whose data is withheld and the burdens he has borne in col-
lecting the data. (2) The provision gives no attention to, and makes
no allowance for, the offsetting advantages that applicant has enjoyed
as a result of his "headstart" or his continuing benefits from the
genuine trade secrets he may have developed (it should be emphasized
that this provision is not needed to protect legitimate trade secrets—
these are adequately protected by Section 10, and in any event the
clause in question goes far beyond trade secret protection and prohibits
the Administrator from even vising the knowledge he possesses not
just from publicly disclosing it). (3) The collection of his data may
well have entered into, and been part of the consideration for, the
grant of his pesticide patent (if he has one) in view of the "utility"
requirement contained in our patent law. (4) It is quite possible that
some or all of his expense may already have been paid for through
Government funding (see, e.g., Section 20 of the bill). (5) Assuming,
arguendo, that the data collector is entitled to some form of remunera-
tion for his efforts, the proposal here picks one of the worst possible
forms for achieving this, namely, protection against legitimate com-
petition. (6) While the provision contains sufficient loopholes that a
strongly public-interest-oriented Administrator could probably avoid
the more serious impacts, it could easily become an instrument of ob-
struction in the hands of a timid Administrator or one more fully
attuned to the interests of selected suppliers than to the interests of
the public.
For the reasons given, I agree with Congressman Kastenmeier's
recommendation that the underline clause be deleted. His three sec-
ondary alternatives, although improvements over the present lan-
guage, seem to .me to create many more problems than they solve,
basically for reasons already expressed. At the minimum, no action
other than outright deletion would seem warranted without first hold-
ing hearings that would put the burden on proponents to show why
any such provisions are necessary and provide opponents opportunity
to point out the objectionable features thereof. Such hearings became
all the more essential, of course, in view of the fact that no opportunity
to air these issues arose in the course of the bill's journey through the
House.
In view of the conclusion indicated above, I have foregone any
discussion of various ambiguities and difficulties of administration
that the clause seems to give-rise to. There are several of these however,
and I will be glad to comment on them if you wish.
As for other provisions of the bill, I do not have many comments.
(1) If the clause in subsection (c) (1) (D) is deleted, the reference to
it in Section 3(c)(2) should also be removed. (2) While Section 10
dealing with trade secrets could have an unnecessarily hampering
effect if interpreted too generously in favor of the applicant, if prop-
erly interpreted it should be possible to keep it within the bounds of
what an applicant is legitimately entitled to under trade secret law
as presently construed. (3) Although the bill contains some provisions
that may be objectionable to those concerned with the protection of,
the environment, I have limited my comments to its competition—
patent aspects. [p. 15]
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2106 LEGAL COMPILATION—SUPPLEMENT I
I hope the foregoing comments prove useful to you. If I can be of
any further help, let me know.
With very best regards,
Sincerely yours,
JOHN C. STEDMAN,
Professor of Law, University of Wisconsin.
SALT LAKE CITY, UTAH,
February 9,
Hon. PHILIP A. HART,
Chairman, Subcommittee on Antitrust and Monopoly', Committee on
the Judiciary, U.S. Senate, Washington, D.C.
DEAR SENATOR HART : The proposed bill amending the Federal In-
secticide, Fungicide, and Rodenticide Act, H.E. 10729, does raise
issues of the type suggested by Congressman Kastenmeier. The bill re-
quires registration of pesticides before they may be distributed in com-
merce. The Administrator of the Environmental Protection Agency is
required to register a pesticide upon finding that its composition is such
as to warrant the proposed claims for the pesticide, its labeling com-
plies with the Act, and it will perform its function without substantial
adverse effects on the environment. The procedure for registration re-
quires the applicant to file information with the Administrator, includ-
ing the formula of the pesticide and a full description of tests made and
their results if requested by the Administrator. Congressman Kasten-
meier objects to the provision limiting the use of tests or the disclosure
of tests without permission of an applicant in subsequent applications
for registration of other pesticides. He is quite correct in asserting that
this limitation is a substantial change from the previous Act, see 7
U.S.C. §135b(a)(4).
Congressman Kastenmeier believes that vesting power in an appli-
cant to withdraw test data from use in support of other applications
would operate to perpetuate patent protection beyond 17 years. I do
not believe that the bill does this, strictly speaking, but it does erect an
unnecessary barrier to entry, whether a pesticide is patented or not, by
imposing unnecessary testing costs upon subsequent applicants. In his
discussion of the issue in the Congressional Record of November 9,
1971 (H. 10767), Congressman Kastenmeier suggests that the basic
function of the patent law is to reward inventors for their ingenuity.
This is not the case. Courts have long held that'the basic function of the
patent law is to promote science and arts by obtaining full disclosure
of useful, novel, and inventive new ideas. The inventors' reward is sec-
ondary, and is allowed only insofar as it promotes the primary goal of
the patent system—full disclosure of valuable new ideas. Consequently,
when one applies for a patent, he is required to make a full disclosure
of all elements, prior art, and so on dealing with the subject to be pat-
ented. Consequently, it would not be correct to say that Section 3(c)
(1) (D) perpetuates patent protection beyond 17 years since anyone
can copy and produce the patented idea upon the expiration of the 17
year period. What the section does do, however, is to erect an unneces-
sary and artificial barrier to subsequent applicants who may be copy-
ing the patented or unpatented idea, by imposing test costs upon them.
[p. 16]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2107
Moreover, the section vests power in the applicant to determine whe-
ther those costs shall be imposed. Thus, in a sense, the statute is creating
a kind of exclusive right in applicants to the test data they have sub-
mitted in support of an application, even though the test data may not
be patentable or subject to trade secret protection under existing law.
The supporters of the provision claim that an applicant is entitled to
protect his investment in tests and test results and "prevent the pirat-
ing" of this kind of information. That argument is totally specious.
The present Act, 7 U.S.C. § 135b(l) (4), contains no right in the
applicant to require the Administrator to keep test data secret and to
not use that data in support of subsequent applications. I could find
nothing in the report supporting any claimed injury or abuse of the
existing statute that would justify the language added by Section 3 (c)
(1)(D). Moreover, the following analysis would seem to be logical
and appropriate: the registration requirements of the Act establish a
government creater barrier to entry into the pesticide business; a major
feature of that barrier to entry is the requirement of testing new pesti-
cides, a cost which is to be borne by applicants; this cost can be assumed
by some applicants better than others, but it is not a cost relating to
economic efficiency; it is a cost that is government imposed and, as
such, it is a cost which should not be imposed any further than is
necessary. Vesting control over this cost in an applicant, so that he can
use a government cost barrier to entry to hamper subsequent com-
petitors is totally wrong. The information required is and should be-
come public information, it should be freely used by the agency in
the performance of its duties under the Act, and the provision as it
now stands only serves the purpose of allowing applicants to hamper
competition and efficient administration of the Act. Finally, in a sense
it does create an exclusive domain of property rights in the test data
that is inconsistent with the basic theory of our patent and copyright
laws. In shorthand fashion: if it is not patentable, it is not proteetable.
This Act would clearly make the test data proteetable from use by
competitors and the Administrator even though it is not patentable
or copyrightable and it is information developed for an important
public purpose. One phase of competition is freedom to copy and we
have only withdrawn that basic economic right in certain limited cir-
cumstances where some greater public good is sought. In this case, I
can see no greater public good that is being served by allowing a suc-
cessful applicant for a pesticide registration to be able to erect unneces-
sary barriers to subsequent registrations, efficient administration of
the law by the Administrator, and the public benefit of a full utilization
of resources devoted to test data. In this sense Congressman Kasten-
meier is correct in that some kind of quasi-property right in the sense
of a right to exclude others from information is created by subsection
(D). It does not rise to the level of patent protection like the ill-fated
Plant Variety Protection Act, S. 3070, which passed the last Congress
over the strong objections of a lone staff member situated dtep in the
bowels of the Antitrust Subcommittee. On that occasion, the bill
granted 17 years of protection in the form of a certificate giving a
person who developed new seed varieties sexually the right to exclude
others from copying the sexually reproduced plant varieties. As I
recall, on that occasion, I suggested that: "A rose may not be a rose
when it is changed by sexual or asexual plant research, but a patent
[p- 17]
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2108 LEGAL COMPILATION—SUPPLEMENT I
is still a patent even though its name is changed by routing the proposal
through another committee." This case does not give the applicant a
right to exclude others in an affirmative legal sense from the data sub-
mitted, but it does give the applicant a right to control the use made by
the Administrator of the data submitted. In that sense, it creates a
right in a property sense in an applicant and could be called some kind
of patent right.
Consequently, I would suggest that sub-section (D) be changed back
to the present language found in the Federal Insecticide Act: if re-
quested by the [Administrator], a full description of the tests made
and the results thereof upon which the claims are based." Conse-
quently, I would simply strike the language beginning with except" on
the ground that there is no justification for imposing this entry barrier
upon applicants and that it will be unduly restrictive on competition
efficient administration of the Act.
Although I have not had a full opportunity to study the bill, prin-
cipally because of the pressure of my class schedule, I would suggest
that you seriously consider proposing an amendment to Section 3(c)
(5), the section which states when the Administrator shall register a
pesticide. The Administrator is required to register a pesticide if he
determines that . . . (C) it will perform its intended function with-
out substantial adverse effects on the environment." This required
places the burden upon the Administrator to measure adverse environ-
mental effect of pesticides. In my opinion, the burden should be the
other way. If it were, we would not be faced with the problem of pro-
ducers of pesticides simply marketing their product without any con-
cern for the environment, the efficacy of the product and its long range
value to society. Given the level of funding for this type of program
and the large number of pesticides that will probably be registered, it
is my guess that we will not see the Administrator able to make a
finding of substantial adverse effects on the environment or even seri-
ously attempt to make such a study. The F.D.A. experience will be
repeated. Consequently, I would amend Section 3(c) (5) (C) on page
19, in line 10, to read as follows: (C) the applicant for registration
has demonstrated it will perform its intended function without sub-
stantial adverse effects on the environment." Given the definition of
substantial adverse effects on the environment, Section 2(bb), page 15,
line 24, I do not think the burden will be an exceptionally heavy one.
In fact, it will be about as difficult a burden as the Administrator may
wish to make it. Given the ecological dangers of pesticides, it does not
seem unreasonable to require those who engage in profiting by the
manufacture and sale of such products to insure to a limited degree
that the product will perform its function without substantial adverse
effects on the environment. In fact, the common law of negligence and
warranty already imposes such a burden upon the manufacture of a
product and it is about time we started to minimize the general damage
done by preventing such products from getting on the market rather
than trying to pick up the pieces after the damage is done through
tort litigation.
I hope this letter is of assistance in evaluating Congressman Kasten-
meir's letter. I think his objection is an important one even though it
somewhat misses the mark. Although the section doe;? not extend
patent protection in a literal sense, it has the potential for extending
[p. 18]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2109
the effective monopoly granted by the patent because it places in the
hands of a registered pesticide producer—patented or unpatented—
the power to force the Administrator to make subsequent applicants
pay the cost of testing.
If I may be of further assistance, please do not hesitate to write.
Sincerely,
JOHN J. FLYNN,
Professor of law. University of Utah.
(3) Advisory Committees
The amendment specifies that not more than one-third of the mem-
bers of an advisory committee may be scientists with an economic
interest in the chemical industry and that none of the members will
have an economic interest in the pesticide under consideration.
The Agriculture Committee bill states that "an objective and com-
petent scientific review" of questions presented to advisory committees
will be sought. However, the bill is silent on how that objectivity will
be assured. By eliminating any prospect of advisory committees con-
sisting of members who have an economic interest in a pesticide under
consideration, the amendment will help to ensure that end. To avoid
representation on advisory committees of competitors who might have
a stake in seeing a pesticide removed from the market, it is intended
that the term "economic interest in the pesticide which is the subject
of referral" should include the economic interests of competitors as
well.
Current EPA policy prohibits representation on advisory commit-
tees of scientists with a conflict of interest in the pesticide under con-
sideration. While this is an admirable policy, there is no assurance
that it will remain intact under succeeding Administrators. To avoid
that possibility, it is the view of the committee that ths policy should
be made exploit in the proposed legislation.
(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 certified as private applicators, a $1,000 penalty will be an insuffi-
cient deterrent to prevent violations by such applicators. Consequently,
the committee recommends that the maximum penalty be appro-
priately raised to $10,000.
(5) Exports
Under the legislation proposed by the Committee on Agriculture,
exports will not be subject to regulation. However, notices of cancel-
lation will be furnished to foreign governments and international
agencies when they become effective. The amendment of the Commit-
tee on Commerce prohibits 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 will be supplied and pesticides will be subject to the reporting
requirements. , 1.-.
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2110 LEGAL COMPILATION—SUPPLEMENT I
Recent experience has indicated a need for tightening our control
over pesticides manufactured in this country for export. 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. In addition, the pervasiveness of pesticides like DDT
worldwide indicates that despite prohibitions against its use in this
country, ill effects to our environment will result from the export to
other countries. The amendment ensures that a pesticide will not be ex-
ported if it presents an unreasonable adverse effect on the environ-
ment of the United States.
To better enable foreign governments to make informed choices as
to their use of a pesticide, all suspension orders and notices of cancel-
lation and labels approved under the Act will be furnished to the for-
eign governments along with a notice of the availability of test data
furnished to EPA. It is intended that all notices of intend to cancel
will be furnished to foreign governments as well as all final orders of
cancellation.
{6) Confidentiality
The amendment modifies section 3 of the Agriculture Committee
bill by requiring, first of all, that each applicant will submit a full
description of any test offei-ed 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 infor-
mation which will be required to support the, registration. 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.
The committee anticipates that a limited amount of data will be
available to the public prior to registration, as trade secrets are pro-
hibited from release. However, certain information could be released
which would allow input to the Administrator from the scientific com-
munity. For example, much of the toxicity data submitted in support
of a registration application could be released without disclosing the
identity of the pesticide or other trade secret information. As the same
toxicity tests will be required of a variety of pesticides and uses, the
release of such test results by themselves will not inform competitors
of the identity of the pesticide or the intended uses. Merely disclosing
test results without identifying the pesticide will enable toxicologists
and other scientists to evaluate the results that are claimed. Within the
scientific community there is often legitimate question as to what is
precisery a toxic effect. The input of interested scientists could prove
to be very valuable.
In the event of a dispute between a manufacturer and the Adminis-
trator as to whether data submitted in support of a registration is a
trade secret and thus not disclosable, such dispute will be submitted
to the Attorney General for arbitration. The Attorney General's deci-
sion will be final, [p. 20]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2111
In addition to the timing of disclosure, the amendment would affect
the nature of the data which may be disclosed.
The amendment also revises section 10 of the Agriculture Com-
mittee bill relating to protection of trade secrets and other informa-
tion. Under section 10 (a) of the Agriculture Committee bill, the
Administrator is not to make public any information which contains
or relates to trade secrets or which is commercial or financial infor-
mation obtained from a person in confidence or a privileged status.
The amendment modifies subsection (a) to establish as a general
principle that "Copies of any communications, documents, reports or
other information received or sent by the Administrator shall be
available to the public at a reasonable cost unless the information may
not be released under the terms of subsection (b)."
The amendment would modify subsection (>a) to establish as a
general principle access of the public to information there will be no
legal requirement to make information available if it is not required
to be made available under the Freedom of Information Act (5 U.S.C.
552 (b)). Subsection (a) must be read in conjunction with paragraph
2 of subsection (b) which states: "Nothing contained in this section
shall be deemed to require the release of any information described by
subsection (b) of section 552, Title 5, United States Code, or which is
otherwise protected by law from disclosure to the public." Although
nothing in the section "shall be deemed to require" release of any
information, section 10, as amended, authorizes the Administrator or
any officer or employee of the Agency to make public any communi-
cations, documents, reports or other information which are not trade
secrets. It is not necessary to prevent the disclosure of commercial or
financial information obtained from a manufacturer which is privi-
leged or confidential as described in the Freedom of Information Act,
if the disclosure will not injure the manufacturer competitively. Yet,
if the disclosure would so injure the manufacturer, the Administrator
would be expected to protect the information as he would a trade secret.
On the matter of trade secrets the Agriculture Committee bill
authorizes the Administrator to reveal trade secret information to
any Federal agency consulted, at public hearings, or in findings of
fact issued by the Administrator. The amendment contains similar
provisions. However, in the case of disclosure during a hearing on
other proceedings under the Act, any such disclosure will preserve the
confidentiality to the extent possible without impairing the proceed-
ing. Thus, an additional safeguard is built in against competitive
injury by such disclosure.
The amendment also adds three additional instances in which trade
secret data could be released. First, trade secret data could be released
to committees of Congress having jurisdiction over the subject mat-
ter. Secondly, trade secret data could be released in a judicial proceed-
ing under a court order formulated to preserve the confidentiality of
the information without impairing the proceeding. Thirdly, the
amendment provides that trade secret information could be released
to the public when necessary to protect health, but only after the
manufacturer has been given notice and an opportunity to comment in
writing or to discuss the matter in closed session with EPA. While
the latter category of disclosure will rarely be used, there are in-
stances where disclosure to the public would be in order. For example,
[p. 21]
525-313 O - 73 - 19
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2112 LEGAL COMPILATION—SUPPLEMENT I
if a given pesticide ingredient is found to be dangerous, a simul-
taneous sale or stop use order could reveal the nature of that in-
gredient. The Administrator will have many tools at his disposal
under the proposed legislation to prevent such immediate endanger-
ment to public health; but should those tools prove insufficient, the
most proper safeguard may be direct public disclosure of confidential
information.
Nothing in the amendment of the Committee on Commerce is in-
tended to prejudice pending litigation such as Morgan v. Food and
Drug Administration (Docket No. 71-1709, District of Columbia
Court of Appeals) which may seek to define a trade secret or determine
what information is entitled to protection by an existing Federal
statute.
(7) Oitisen Suits
As reported by the Committee on Agriculture and Forestry, the pro-
posed legislation contains no provision for citizen's civil actions to
enjoin certain violations of the Act or to require the performance
of mandatory duties by EPA. The proposed amendment adds such a
provision.
The amendment is patterned after the similar provisions of the
Clean Air Act amendments of 1970, the Senate-passed Toxic Sub-
stances Control Act of 1972, and the Senate-passed Federal Water
Pollution Control Act amendments now pending in conference.
The amendment is specific with respect to those violations for which
a suit could be brought by a citizen. Included are violations of (1)
a requirement of section 3(a), which deals with registration require-
ments, (2) any condition of registration imposed by the Administra-
tor, (for example, labeling requirements), (3) suspension or can-
cellation orders with respect to a pesticide registration, or (4) prohibi-
tions against the misuse of a pesticide.
For the purposes of this section, the term "person'' is defined to
include agencies of the Federal Government. Thus, EPA could initiate
a suit to enjoin the specified violations of the Act.
A suit could also be brought against the Administrator where lie
has failed to perform a mandatory duty. For example, in registering
a pesticide the Administrator will be required to classify a pesticide
either for general use or restricted use, or both. If the Administrator
fails to make such classification, he would be subject to a suit under
the amendment. However, the decision of the Administrator as to
how the pesticide shall be classified is a decision committed to agency
discretion as part of the registration process, and thus would be sub-
ject to the specified administrative and judicial review procedures. In
this respect, authorizing citizens to sue for the performance of a
mandatory duty is similar to a mandamus action under existing com-
mon law. However, the amendment confers standing to bring an action
on any person who can meet the constitutional test of standing; i.e.,
who can establish that he is a party to a case or controversy.
As with other areas of environmental concern, the aid of citizens
in enforcing pesticide laws should prove to be a valuable tool to pre-
vent violations of the Act. As the misuse of a pesticide will be pro-
hibited by the proposed legislation, the threat of a citizen suit against
such misuse should be >a powerful deterrent. The ability of the Environ-
fp. 22]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2113
mental Protection Agency to properly enforce prohibitions against
misuse will be supported by the help that citizens and citizens' groups
will offer in support of EPA's enforcement effort.
As the Congress has seen fit to include provision for citizens suits
in other recent environmental legislation, it would be inconsistent not
to include such a provision with respect to pesticides. Consequently,
the committee strongly recommends that the amendment be accepted.
(8) Hearing Structure
The Agriculture Committee bill requires formal rulemaking pro-
cedures to be used in every hearing held in response to a notice of
cancellation of the registration of a pesticide. Except in the case of
an imminent hazard, any such hearing and any scientific review by
an advisory committee will be held prior to the final cancellation
order removing the pesticide from the market. Thus, with respect
to a normal cancellation proceeding, it may be in the interest of the
registrant to continue the proceedings as long as is possible.
The number of hearings held by EPA and formerly USD A in re-
sponse to a notice of intent to cancel has been small. However, as
increasing numbers of pesticides continue to be developed, the number
of cancellations can also be expected to increase. While past experience
under FIFRA gives little insight as to what might happen if formal
rulemaking hearings continue to be held in response to each cancella-
tion notice, experience under other statutes is revealing. Under the
Federal Food, Drug, and Cosmetic Act, the Food and Drug Adminis-
tration is authorized to make rules with respect to foods following a
formal adjudicative hearing. Two recent hearings conducted by FDA
demonstrate the manner in which proceedings of this type can drag
on and only serve to delay an administrative decision.
(1) The Peanut Butter proceeding
This proceeding resulted from an attempt by the FDA to set stand-
ards on the content of peanut butter over the objections of the industry.
While the original proposal was published on July 2,1959, the actual
hearing began in September of 1965 due to a number of procedural
delays and lawsuits. The following is a description of the hearing by
Professor Robert W. Hamilton of the University of Texas School of
Law.*
"Illustrative is the testimony and cross examination of the
first Government witness. He presented a survey of cook
books, patent applications, and the like dealing with the his-
torical composition of peanut butter. At best, the testimony
was peripheral and of such a nature as to render extended
oral examination unnecessary. On cross examination, the
witness was asked about his own personal tastes in peanut
butter as well as about omissions hi his list of patents and
cook book formulations of peanut butter which he did not
refer to in his direct testimony. The first day of the hearing
was devoted entirely to colloquy and the testimony of this
witness, and developed practically nothing of value for the
ultimate finder of fact and resolver of policy questions.
'Professor Hamilton's remarks appear in Rulemaking on a Record by the food and
Drug Administration, a report prepared for the Administrative Conference of the United
States. -
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2114 LEGAL COMPILATION—SUPPLEMENT I
"The hearing in this proceeding continued until March
15, 1966, and the transcript ultimately reached 7,736 pages.
Of this material, only a very small part is useful, and the
balance appears to be simply a monument to the normal desire
of attorneys to ask questions and force minor concessions
which are more verbal than real. A more cynical, but not im-
plausible, explanation is that the peanut butter industry did
not desire the standard to go into effect, and its representatives
were therefore encouraged to present a full airing of the
issues."
(2) The Foods for Special Dietary Uses proceeding
This proposed rule sought to impose labeling requirements for
vitamins, again against the wishes of the industry. The original
notice of proposed rulemaking was published on June 30, 1962. The
hearing did not commence until June 1968, again due to procedural
delays and lawsuits. The following is Professor Hamilton's descrip-
tion of the hearing:
"As in the Peanut Butter hearing, the actual hearing com-
menced without any cJear delineation of the issues in dis-
pute. The notice of public hearing had set forth the 'issue'
to be decided at the hearing in the general language of the
statute: 'Whether it will promote honesty and fair dealing
in the interest of consumers' to provide full information to
consumers as to the value of foods for special dietary uses ;
whether the 'crepe label' is a 'necessary means of fully in-
forming consumers of the value' of dietary supplements,
and so forth. [31 Fed. Keg. 15730-31 (1966)] This lack of
clearly defined issues materially lengthened the hearings.
However, other factors contributed as well. The hearing ex-
aminer's inexperience, particularly during the early part
of the hearing, resulted in a number of evidentiary rulings
which invited numerous technical objections and consider-
able wrangling among the attorneys. These early rulings
were based on an adversary or jury trial concept. Another
factor that materially lengthened the hearing was the par-
ticipation by a number of non-lawyers, particularly one medi-
cal doctor. The cross examination of Government witnesses
by these persons tended to produce little, but involved a
substantial expenditure of time.
"As the hearing progressed, procedural innovations were
tried out which materially improved the conduct of the hear-
ing, * * * though several attorneys have complained that
they feel the rulings were prejudicial to them. These changes
included: (1) submitting direct testimony in written form;
(2) prohibiting cross examination on cross examination or on
other participants' cross examination; (3) limiting the use
of scientific texts and treatises to the contradiction of direct
testimony, and requiring the cross examiner to specify pre-
cisely the testimony to be contradicted and the contradicting
passage; (4) limiting colloquy of counsel and legal argument
unless specifically requested; (5) striking or limiting cumula-
tive testimony of experts, and (6) prohibiting parties (other
[p. 24]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2115
than the Government) from cross examining witnesses of
other non-governmental parties unless a written statement
was submitted showing that testimony, was adverse to the
interest of the opponent. In connection with the limitation of
cross examination referred to in point (6), the Examiner
tended to treat all opponents to the proposed regulations
as having parallel interests, and most requests to cross examine
were denied, even in situations where the general positions
of the two parties were antagonistic, e.g. producers of arti-
ficial sweeteners were not permitted to cross examine wit-
nesses presented by sugar producers.
''Despite the restrictions on cross examination, most of
the hearing time was devoted to cross examination of govern-
mental witnesses. Because of the large number of industry
participants, cross examination tended to be repetitious or
cumulative. Scientists and professional witnesses were asked
to return on numerous occasions for additional cross-exami-
nation. As a result, one physician flatly refused to return;
others, sensing a difficult and prolonged examination, simply
declined to testify. FLA does not possess the subpoena power
and thus had to forego the desired testimony. The adverse
effect of extensive and cumulative cross examination on the
willingness of professional witnesses to testify is one of the
unfortunate aspects of the trial type of hearing.
"In 1969, while the hearings were in progress, Congres-
sional committees and the White Plouse Conference on Food,
Nutrition and Health conducted hearings and studies which
indicated that a substantial part of the American public
suffered from malnutrition and starvation. These studies ap-
peared to conflict directly with the position maintained by
FDA in the hearing that since the average American diet
was satisfactory, there was not need for vitamin and mineral
supplements. This apparent contradiction within the Govern-
ment itself led to a considerable amount of bad publicity
for the Food and Drug Administration. In addition, indus-
try counsel attempted to introduce materials presented be-
fore the Congressional committees and the White House Con-
ference; these attempts were vigorously opposed by counsel
for FDA. Again the agency suffered adverse publicity, since
it appeared that the agency attorney was less interested in
developing truth than in preparing a partisan record to sup-
port preconceived and erroneous conclusions.
"The Foods for Special Dietary Uses hearing continued
intermittently from June 1968 through May 1970. The tran-
script finally exceeded 32,000 pages exclusive of exhibits and
written direct testimony. The Government produced the testi-
mony of 32 witnesses, marked 1,161 pieces of documentary
evidence for identification, and introduced 1,103 exhibits
into evidence. The testimony and cross examination of Gov-
ernment witnesses comprise about 25,000 pages of transcript.
Industry participants in the hearing produced the written
testimony of 130 witnesses, and marked 927 documents for
identification, and actually introduced into evidence 427 of
[p. 25]
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2116 LEGAL COMPILATION—SUPPLEMENT I
them. Proposed findings of fact were submitted in August
1970; eleven of the principal industry participants cooper-
ated in the submission of a single set of "joint proposed
findings of facts," though several participants in this cooper-
ative effort also submitted individual proposed findings on
certain areas. TAventy other participants also filed separate
briefs and/or proposed findings. The proposed findings by
Government and the cooperative proposed findings of indus-
try ran close to 100 typewritten pages each.
"On August 26, 1970, the hearing examiner reported to the
Commissioner on one phase of the proposed regulations,
infant foods. A. tentative order, proposed findings of facts
and conclusions, limited to this single subject was released
by the Commissioner on October 29, 1970. [35 Fed. Reg.
16737] The examiner's report on the balance of the hearing,
running to about 200 pages, was filed at the end of January,
1971.
"The significance, length, and unprecedented number of
problems created by this proceeding make it, along with the
Peanut Butter hearing, a prime case study for improvements
in the administrative processes of FDA."
On May 11, 1972, the Environmental Protection Agency proposed
rules of practice with respect to the structure of hearings in response
to a notice of cancellation. Under those rules, the hearing examiner
may limit cross-examination of witnesses to the Environmental Protec-
tion Agency and one other party on each side of the issue. Provision is
made for additional cross-examination if it can be demonstrated that
the testimony will not be duplicative. While these limitations seem
proper, future Administrators of the Environmental Protection
Agency may interpret a requirement for a formal hearing in all in-
stances as precluding any limitation on cross-examination or proce-
dural delays.
While a formal hearing may be required in many cases, there are
instances where an informal hearing without cross-examination may
be entirely appropriate. For example, if the evidence in support of a
cancellation notice is overwhelming, the mere presentation of written
or oral views or arguments will be sufficient to form the record upon
which EPA will make its decision. Cross-examination of witnesses
in such a case would only serve to delay the proceedings without
adding anything of value to the hearing record.
The amendment of the Committee on Commerce gives the Ad-
ministrator the authority to structure hearings in a manner he deems
advisable. Thus, depending on the nature of the hearing, the hearing
could be informal with presentation of oral and written statements
only or the hearing could be formal with full rights of cross-examina-
tion of witnesses and subpoena power. The amendment also provides
that any interested person may intervene in such proceeding and par-
ticipate fully as a party. The amendment will expedite the hearing
procedures and thus allow EPA to reach a decision sooner on the fnte
of a pesticide. [p. 26]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2117
(9) Protection of Farmworkers
The amendment insures that the health of farmworkers, farmers
and others who may come in contact with pesticides and pesticide resi-
dues will be fully considered by the Administrator in registering and
classifying pesticides. Additionally, the amendment provides that the
pesticide will be deemed misbranded if it does not adequately pro-
tect the health of such farmers, farmworkers, and others. While the
Committee on Commerce agrees with the Environmental Protec-
tion Agency and the Committee on Agriculture and Forestry that the
health of farmworkers will be considered without the amending lan-
guage, the Subcommittee on the Environment heard substantial testi-
mony that the health of farmworkers might indeed not be fully pro-
tected under existing law. Mr. A. V. Krebs, testifying 011 behalf of
the Agribusiness Accountability Project^ presented data which showed
substantial health problems among farmworkers in California from
•the use of the organophosphate pesticides, Guthion and Ethion.
Mr. Krebs charged that the label instructions on these pesticides insu-
fficiently took into account the health of migrant laborers. In addi-
tion, testimony before the Migratory Labor Subcommittee of the
Senate Committee on Labor and Public Welfare in 1970 revealed
that as many as 800 workers are killed each year and over 800,000
injured as a result of the unwise and improper use of pesticides. 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.
The committee amendment makes one substantive change in the
proposed legislation. The amendment provides that EPA shall not
rely on any test results unless he determines that the tests were con-
ducted 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.
(10) Authority of Local Governments to Regulate the Use of Pesti-
cides
The amendment gives local governments the authority to regulate
the sale or use of a pesticide beyond the requirements imposed by
State and Federal authorities.
While the Agriculture Committee bill does not specifically prohibit
local governments from regulating pesticides, the report of that com-
mittee states explicitly that local governments cannot regulate pesti-
cides in any manner. Many local governments now regulate pesticides
to meet their own specific needs which they are often better able to
perceive than are State and Federal regulators. The amendment of the
Committee on Commerce is intended to continue the authority of such
local governments and allow them to protect their environment to a
greater degree than would EPA.
The amended language would prohibit local governments from
imposing requirements as to labeling and packaging which differ from
those imposed by Federal and State authorities. Localities would there-
fore be preempted from regulating the composition of any pesticide.
Local governments could, however, prohibit or restrict the sale or use
of pesticides within their jurisdiction. As manufacturers will not be
forced to formulate different variations of the same pesticide to meet
[p. 27]
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2118 LEGAL COMPILATION—SUPPLEMENT I
local needs, no unreasonable burdens on commerce are anticipated. Nor
are burdens on the environment, since localities could not permit sales
or uses prohibited by State and Federal authorities.
(7.?) Suspension
The Agriculture Committee bill establishes a procedure for cancel-
ing the registration of a pesticide following full administrative review
and for suspension of a registration before such review in the case of an
imminent hazard. If emergency conditions exist with respect to an im-
minent hazard, the suspension would be summary. If emergency condi-
tions do not exist, the suspension order would follow an expedited
hearing. In each of these three cases, judicial review of the Adminis-
trator's determination could result. Thus, the Administrator might be
forced to defend himself in court on the question of (1) emergency sus-
pension, (2) suspension following a hearing, and (3) cancellation, all
with respect to his efforts to remove one pesticide from the market. It is
feared that harassment could ensue and that EPA might hesitate to
suspend without a hearing to avoid one such lawsuit.
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 amend-
ment 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. If EPA
determines it necessary to suspend without a hearing, the Administra-
tive procedures following the required cancellation notice will be
conducted in an expeditious manner.
The amendment further provides for a court of appeals review of
(1) all suspension orders, cancellation orders, and orders to change
classification, (2) refusals of EPA to cancel, suspend, or change classi-
fication and (3) any order following a public hearing.
The Agriculture Committee bill provides for review of decisions
concerning suspension, cancellation, or change in classification in the
courts of appeals if a hearing has been held and in the district courts if
a hearing has not been held. The, existing1 FIFRA provides for review
of all orders in the courts of appeals. It is intended to continue this
practice under the proposed amendment.
While the Environmental Protection Agency apparently now ac-
cepts the judicial review provisions of the Agriculture Committee bill,
on April 17,1972, the following submission by EPA to Senator Allen,
Chairman of the Subcommittee on Agricultural Research and General
Legislation, made several comments in support of review in the courts
of appeals:
"We favor all review in the courts of appeals because dis-
trict court proceedings are time-consuming. District court
review, moreover, tends to create some confusion. Instead of
coping with legal constructions reached by eleven circuits,
and speedily resolved in the Supreme Court, we must ad-
minister a statute under the supervision of some one-hund-
red district courts. It is inevitable that the courts, in review-
ing decisions to suspend or orders refusing not to cancel or
suspend, will flesh out the substantive standards of the Act.
Indeed, a district court in finding a refusal to cancel is ar-
[p- 28]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2119
bitrary will announce the outer boundaries of legal criteria
that the Administrator must apply at the hearing. That hear-
ing record will then be reviewed in a circuit court, perhaps
a circuit that does not supervise the district court that ordered
cancellation. It would not be long before the annotated re-
ports on this legislation are equal in length and complexity
to those following the ICG's legislation."
As stated in the Agriculture Committee report, one of the prime
reasons for providing judicial review in the district courts for those
decisions not following a public hearing is that an adequate record
would not exist for circuit court review. The April 17 letter to Sen-
ator Allen from EPA contains an explanation of how the circuit
courts would obtain an adequate record for review even though a
public hearing had not been held.
"The last point of our amendment is to return to the
courts of appeals the task of reviewing those decisions not
to cancel taken because the Administrator finds that there
is no new substantial questions of safety. The decision not
to cancel is taken based on a compiled documentary record
which includes the registration file, scientific documents which
are exhibits and a published order with findings. Written
petitions and comments are made part of a formal docket.
This is, we believe, a sufficient record for review by a cir
cuit court.
While the comments of the Environmental Protection Agency deal
with refusals to cancel, their rationale with respect to all questions
of suspension, cancellation or changes in classification not following
a hearing should apply. The amendment of the Committee on Com-
merce explicitly provides that the documentation in support of the
Administrator's decision be filed with the court when judicial review
of that decision is sought.
While an appellate court review of administrative orders obviously
should not be provided for in all statutes, it is felt that past experi-
ence under FIFRA and the reasons cited by EPA above strongly jus-
tify such a provision here.
(12) Authority of States to Register Pesticides
Under the Agriculture Committee bill, provision is made for a State
to register pesticides formulated for distribution and use solely within
that State to meet specific local needs. Any such State would be
required to be certified by the Administrator as capable of exercising
adequate controls over the pesticide. Registrations would be prohibited
if EPA had previously denied, disapproved or canceled a registration
for the use intended.
The amendment, which is similar to a provision recommended by
the Environmental Protection Agency, would permit certification of
a State only if it is capable of preventing unreasonable adverse effects
on the environment by adopting procedures similar to those contained
in this Act. In addition, State registrations would be for periods of
ninety days only, each of which would be approved by the Adminis-
trator. Whereas the Agriculture Committee bill provides for State
registrations to meet "specific local needs", the amendment provides
that "local emergency needs" must exist. r oq-i
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2120 LEGAL COMPILATION—SUPPLEMENT I
The purpose of the amendment is to insure a procedure for State
registrations which will provide a similar degree of protection to man
and the environment as would be obtained had the registration been
considered by the EPA. In effect, the States will act as agents for
EPA in registering a pesticide to be used solely within that State. To
insure that the State procedures are proper, EPA will certify the
State procedures for each pesticide intended to be so registered. With
respect to each such pesticide, it will have to be established that the
procedures assure that the criteria for EPA registration are met. To
insure that State procedures for enforcement remain adequate follow-
ing registration, EPA will lie required to renew its certification every
ninety days. Consistent with the thrust of the legislation that Fed-
eral registration of all pesticides provides the greatest assurance of
safety, the amendment will restrict departures from the requirement
of actiial EPA registration to emergency situations.
(13) Recordkeeping by Private Applicators
The Agriculture Committee bill prohibits EPA from requiring
records or reports of private certified applicators. If a pesticide is
registered for restricted use, the pesticide may be required to be ap-
plied by certified applicators. Private applicators would be those cer-
tified by the States which do not apply pesticides for hire. In most
cases private applicators will be farmers applying pesticides on their
land. As such applicators could include large corporate farmers, the
Environmental Protection Agency has requested the authority to
require records and reports of such applicators. The committee rec-
ommends that this authority be granted.
While EPA could require a full set of records and reports of large
corporate private applicators, it is expected that most small private
applicators will not be required to keep records or make reports.
EPA will be expected to match its record-keeping and reporting re-
quirements with the degree of abuse to the environment that could
result from the misapplication of a pesticide by a private applicator.
(14) EPA Bight-of-Entry
The Agriculture Committee bill restricts the right-of-entry and
inspection authority of EPA inspectors to those establishments where
pesticides or devices are held for distribution or sale. The amendment
broadens this authority to include those establishments where pesti-
cides or devices are "held or used". It will also enable EPA to make
inspections and obtain samples prior to the time a pesticide is pack-
•aged, labeled, and released for shipment rather than after such
'•release for shipment as provided by the Agriculture Committee bill.
The committee fears that EPA's enforcement effort would be se-
verely curtailed by the language of H.R. 10729 as reported by the Agri-
culture Committee. Without the authority to inspect establishments
where pesticides are used, misuse violations in such establishments
•will be difficult, if not impossible to detect. A great deal of pest
control takes place within grain elevators, livestock feed mills, and
a variety of other manufacturing plants. EPA should be given the
authority to inspect such establishments for violations of the Act.
As the amendment gives EPA the authority to inspect and obtain
samples of any pesticide or device at any stage of the manufactur-
[p. 30]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2121
ing process, EPA inspectors will be able to determine violations
prior to the time a pesticide is completely prepared for shipment by a
manufacturer. If violations could only be detected after preparation
for shipment, EPA, the manufacturer, or the courts could be faced
with huge problems of disposing of large stocks of a pesticide that
contains, for example, a contaminant which may be impossible to de-
toxify. Such problems should be avoided by the proposed amendment.
(15) Specific Authorisation
The Agriculture Committee bill provides an open amended au-
thorization for the next three fiscal years. The amendment inserts a
specific authorization of $15 million for the fiscal year ending June 30,
1973, $25 million for the fiscal year ending June 30, 1974, and $35
million for the fiscal year ending June 30,1975.
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 Eodenticide
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 Plazardous 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.
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 regis-
tration 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 enact-
ment.
(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 cer-
tification shall have been submitted to the Administrator within
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2122 LEGAL COMPILATION—SUPPLEMENT I
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 ROTENTTCIDE 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.
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.
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 pesti-
cides 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 heatlh 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.
[p. 32J
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2123
"Protect health and the environment1' is defined, and includes the
requirement to prevent unreasonable adverse effects on environmental
values. "Unreasonable adverse effects on the environment" is also
denned.
SECTION 3. 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
experimental 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; the pesticide for-
mula ; and a request for classification.
This subsection requires the Administrator to publish guidelines
concerning registration information he will require.
Under this subsection, the Administrator is required to approve or
deny registration as expeditiously as possible. He is to publish in the
Federal Kegister 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 unreasonable ad-
verse effects on the environment. 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 Administra-
tor 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 re-
course to the administrative remedies in section 6. Registration may be
denied because the pesticide is not effective or because it is dangerous.
The burden of proof remains with the applicant (as in FIFE A) 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 submitted comply with the Act, and
that it will not create unreasonable 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
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2124 LEGAL COMPILATION—SUPPLEMENT I
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. It is intended that separate packaging and label-
ing would be required if there is a significant threat of the inadver-
tent usage of a restricted use pesticide by other than a certified appli-
cator if the pesticide is required to be applied only by such applicators.
Subparagraph (B) specifies that a general use pesticide is one which
the Administrator has determined will not cause unreasonable adverse
effects on the environment when applied in accordance with its direc-
tions 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 unreasonable
adverse effects on the environment without additional regulatory
restrictions.
This Subparagraph further provides that when the pesticide pre-
sents 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 regu-
latory restrictions. Any such regulatory restriction (other than re-
quirement 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 con-
tained 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 regula-
tion 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 speci-
fied 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 requir-
ing 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 re-
quiring them to be subject to different regulatory restrictions are the
key new authorities of the bill. Such provisions enable the Environ-
mental 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 Admin-
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2125
istrator 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 mav 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 Ad-
ministrator 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 consti-
tute open-ended authorization for the Administrator. Specifically, the
authorization to impose such restrictions does not constitute authori-
zation 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 pro-
hibitions through such measures as certification, the signing of regis-
ters, 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 a given area at a
given time.
It is anticipated that the Administrator in determining such restric-
tions will coordinate them with controls which are imposed by the vari-
ous States, and thus prevent conflicting or overlapping Federal and
State controls,
The restrictions shall be adopted by regulation after affording in-
terested 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 ad-
ministration 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, how-
ever, still su'bject 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 with-
in 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.
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2126 LEGAL COMPILATION—SUPPLEMENT I
Subsection (e) permits a registrant to register as a single pesticide
products having the same formulation, claim, and identifying label
designation.
Subsection (f) provides for minor changes to registrations, prohibits
construing registration as a defense for any offense under the bill,
and states that the Administrator may consult with other Federeal
agencies on registration matters.
SECTION 4. USE OF RESTRICTED TTSE 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 con-
tains applicator certification standards at least equal to those pre-
scribed by the Administrator. A State must be given due notice and
opportunity for hearing if the Administrator rejects a pesticide ap-
plicator certification plan; and must maintain its certification program
in accordance with the plan approved by the Administrator or ap-
proval could be withdrawn after opportunity for hearing.
The provisions for certification of applicators constitute 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.
It is intended that if a person misuses a pesticide while under the
supervision of a certified applicator, that the certified applicator
would be subject to the loss of his certification.
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 f> EXPERIMENTAL USE PERMITS
The Administrator may issue, under terms and conditions estab-
lished by him, an experimental use permit if an applicant needs 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 are inadequate to avoid unreasonable 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
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2127
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. Paragraph (2) of subsection (a) requires a registrant to
furnish information to the Administrator regarding unreasonable
adverse effects on the environment after his pesticide is registered.
While this provision allows the registrant to judge whether the in-
formation pertains to any unreasonable adverse effect, he will be sub-
ject to the penalties of section 14 should he possess such information
and not make'it available to the Administrator.
Subsection (b) authorizes the Administrator to issue a notice of
intent to cancel a registration or change its classification 01 l^^i-.t 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
(31) has given prior notice to the registrant.
Prior to issuing a suspension order, the Administrator may conduct
an expedited hearing if necessary to gather information to determine
if an imminent hazard exists. If any such hearing is held, the Admin-
istrator may structure the hearing in accordance with such conditions
or limitations as he may deem appropriate. Any interested person may
intervene in such proceeding and participate fully as a party.
Suspension orders would be reviewable by a court of appeals under
section 15.
Subsection '(d) sets forth procedures for hearings pursuant to sub-
section (b) and provides for scientific review. When a public hearing
is requested, any party (including the hearing officer) may refer ques-
tions of scientific fact to a Committee of the National Academy of Sci-
ences. 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 main-
tain 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 procedural strictures.
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2128 LEGAL COMPILATION—SUPPLEMENT I
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 proceed-
ings 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 registra-
tion, 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 Adminis-
trator. 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, has 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 Ad-
ministrator annually. All such information would be considered con-
fidential 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-
ments imposed on the use of pesticides through the registration process
but would not be 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 prod-
ucts produced as are necessary for enforcement of the Act. Such
records required would 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 desig-
nated by the Administrator are authorized to enter any establishment
or other place -where pesticides are held or used at reasonable times-
to inspect and obtain samples of any pesticides or devices, and samples1
of any containers or labeling for such products. Before an inspection-
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2129
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 em-
ployees 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 oppor-
tunity to present his views. If thereafter the Administrator 'believes
the Act has been violated he shall certify the facts to the Attorney Gen-
eral 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, ths notice and opportunity to pre-
sent views are not prerequisites to the institution of any proceeding
by the Attorney General. This section also authorizes the Adminis-
trator to issue warning notices in lieu of prosecution for minor viola-
tions if the Administrator believes the public interest will be served.
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
but at the same time establishes the principles of public disclosure
of non-trade secret data.
The Administrator would not make public any such information
which contains or relates to trade secrets obtained from a person 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 for official use; to com-
mittees of Congress having jurisdiction over the subject matter; in a
judicial proceeding under a court order ^to preserve the confidentiality
without impairing the proceeding; if refevant in nay proceeding under
this Act, except that such disclosure shall preserve the confidentiality
of the material without, impairing the proceeding; and to the public
in order to protect its health. In the latter instance, the manufacturer
would be given opportunity, for a period of fifteen days, to comment
in writing or discuss in closed session the matter relating to disclosure-
if the delay resulting from such notice and opportunity would not be
detrimental to the public health.
If disputes arise 'between the manufacturer and the Administra-
tor as to whether data submitted in support of a registration consti-
tutes a trade secret, then such disputes will be arbitrated by the At-
torney General.
This section also authorizes the disclosure of non-trade secret data
covered by section 552 of title 5, United States Code.
SECTION 11. STANDARDS APPLICABLE TO PESTICIDE APPLICATORS
This section requires the Administrator to establish separate stand-
ards for private and commercial certified applicators. ,
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2130 LEGAL COMPILATION—SUPPLEMENT I
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 classifica-
tion; making available for use, or using, a restricted use pesticide
other than is provided under the Act or inconsistent with its labeling;
and violation of a "stop sale, use, or removal" order.
Violation of record-keeping and establishment registration provi-
sions 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.
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 under the Act which, when used as directed on the
label and as required under the Act, nevertheless cause unreasonable
adverse effects on the environment.
Subsection (c) provides for the disposition of condemned and seized
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, ex-
cept that a private applicator or any other person would be subject
to $10,000 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 regula-
tory' 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 enforce-
ment 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
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2131
constitutes compliance with, the Act can be considered by the Adminis-
trator and the 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, final EPA actions not committed to the discretion of the agency,
are reviewable in the district courts.
Subsection (b) provides that most important actions of the Agency
under the Act are reviewable in the courts of appeals. This sub-
section provides that in the case of actual controversy as to the
validity of (1) any cancellation order, suspension order, or order to
change the classifications, (2) any agency refusal to cancel or suspend
registrations or change classification, or (3) any other 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 or refusal be set aside in whole or in part. In its review the court
shall consider all evidence of record and sustain the order or refusal
of the Administrator if it is supported by substantial evidence when
considered on the record as a whole. The commencement of proceed-
ing's under this section does not, unless the court specifically orders to
the contrary, 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 viola-
tions 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.
SECTION 10. CITIZEN SUITS
This section is patterned after similar provisions of the Clean Air
Amendments of 1970. Any person would have standing to bring a civil
action for injunctive relief whenever that action constitutes a justi-
fiable case or controversy. Actions could be brought against any person
(including the United States or other governmental instrumentality
or agency) who is alleged to be in violation of (1) any requirement
for registration under section 3(a) of this Act. (2) any condition
of registration imposed by the Administrator, (3) the suspension or
cancellation order under section ,6, or (4) the prohibition against
misuse of a pesticide.
Suits could also be brought against the Administrator where there
is an alleged failure by the Administrator to perform mandatory
duties under this title.
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2132 LEGAL COMPILATION—SUPPLEMENT I
Citizen civil actions under this section against private parties
could not be commenced prior to Sixty days after the plaintiff has
given notice of the violation to the Administrator and to any alleged
violator, or if the Administrator or Attorney General has commenced
a civil action to require compliance with the regulation or order. Suits
could not be brought against the Administrator prior to sixty days
.after the Administrator had been given notice by the plaintiff. In the
case of an imminent hazard, however, such action could be brought
ten days after such notification.
The court would have the authority to apportion the costs of liti-
gation among the parties whenever appropriate.
A further provision gives the courts the discretionary authority,
upon the application by the defendant, to consolidate cases involving
the same issues of violation into a single district court. Any such con-
solidation order to be issued by the court should give due considera-
tion to the convenience of all the parties and witnesses to the action.
SECTION 17. IMPORTS AND EXPORTS
Pesticides intended solely for export would not be subject to the
Act except that (1) test data and other information required under
paragraphs (A) through (E) section 3(c)(l) will be submitted to
the Administrator, (2) such pesticide will be subject to the reporting
requirements of section 8, and (3) no pesticide may be exported unless
the Administrator determines that the export of the pesticide will not
result in unreasonable adverse effects on the environment of the United
States.
In addition the Administrator would be required to furnish to the
government of foreign nations to which any pesticide may be exported
(1) a notice of the availability of test data and other information
required under section 3 (C) (1), (2) all labels approved under section
3, and (3) all orders of suspension and all notices of cancellation or
change in classification issued pursuant to section 6.
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 inter-
national efforts to develop improved pesticide research and regula-
tions, and subsection (e) requires the Secretary of the Treasury to
prescribe regulations under this section.
SECTION 18. 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. The committee intends that exemptions would be granted
only if unreasonable adverse effects on the environment would not
result.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2133
SECTION 19. DISPOSAL AND TRANSPORTATION'
Section 18 provides that the Administrator of the Environmental
Protection Agency shall, after consultation with other interested Fed-
eral 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 pro-
vides 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 this requirement 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 to advise the
Secretary of Transportation with respect to the transportation of
pesticides in light of the Secretary's responsibilities regarding hazard-
ous materials.
SECTION 20. RESEARCH AND MONITORING
This section authorizes the Administrator to use necessary means
to undertake pesticides research, giving priority to biologically inte-
grated alternatives to chemicals for pest control; to establish and im-
plement a national plan for monitoring pesticides, as well as undertake
-other monitoring activities necessitated by provisions of the Act.
SECTION 21. 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 21 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
Tinder 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. Most importantly, the
Administrator would be expected to solicit the views of the Secretary
of Health, Education, and Welfare.
SECTION 22. 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.
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2134 LEGAL COMPILATION—SUPPLEMENT I
SECTION 23. 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 Exten-
sion Services.
SECTION 24. AUTHORITY OF STATES
This section specifies the authorities retained by the States and local
governments under the Act. Generally, the intent of the provision is
to leave to the States and local governments the authority to impose
stricter regulations on pesticides use than that required under the Act-
Subsection (a) gives States and local governments the authority to
regulate the sale or use of a pesticide or device so long as such regula-
tion does not permit sale or use prohibited under the Act.
Subsection (b) preempts any State or local government labeling or
packaging requirements differing from such requirements under the
Act.
Subsection (c) provides the Administrator with authority to certify
a State for the purpose of registering pesticides formulated for intra-
state distribution to meet specific local emergency needs. Such regis-
tration would not be effective for more than 90 days unless approved
by the Administrator within that period. The purpose of this sub-
section is to give a State the opportunity to allow a State, in an
emergency situation, to register a pesticide which EPA, because of
an excessive administrative burden, has not adequate time to evaluate.
SECTION 25. 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, deter-
mine 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 pes-
ticides, and determine and establish suitable names to be used in ingre-
dient statements.
SECTION 26. 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.
[p. 44]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2135
SECTION 27. AUTHORIZATION FOR APPROPRIATIONS
This section authorizes appropriation of $15,000,000, $25,000,000,
and $35,000,000 necessary to carry out the provisions of the Act for
fiscal years 1973, 1974, and 1975 respectively. Thereafter new legisla-
tion 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 rea-
sonable registration fees may be charged.
COST OF THE LEGISLATION
The committee agrees with the cost estimates submitted by the
Environmental Protection Agency for new activities required by the
bill. 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 F Y1977.
CHANGES IN EXISTING LAW
Rule XXIX of the Standing Eules of the Senate requires each com-
mittee report to show the changes made in existing law by the proposed
legislation. However, Eule XXIX provides that the requirement may
be waived if the committee reporting the proposed legislation deter-
mines it necessary in order to expedite the business of the Senate.
The report of the Committee on Agriculture and Forestry contains
the changes made in existing law by ILK. 10729. As the amendments
recommended by the Committee on Commerce are described in detail
elsewhere in this report, the committeee has determined that the
changes made in existing law should not be shown in this report in
order to expedite the business of the Senate.
AGENCY COMMENTS
Washington. D.O., June 27,1972.
HON WARREN G. MAGNTJSON,
Chairman. Committee on Commerce, U.S. Senate,
Washington, D.C.
DEAR MR. CHAIRMAN : The proposed "Federal Environmental Pes-
ticide Control Act of 1971", H.R. 10729, has recently come to our
attention. Since enactment of the bill would necessitate some action
by this Department, we would like to offer our views on it.
The bill would amend the Federal Insecticide, Fungicide, and
Rodenticide Act (7 TJ.S.C. 135 et seq.), by expanding the comprehen-
sive program for the control and use of pesticides, including Federal
and State cooperation.
Section 2(aa) defines the term "State" as "a State, the District of
Columbiaa, the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, the Trust Territory of the Pacific Islands, and American
Samoa." This would extend the coverage of the Act to a geographical
area greater than that comprising the Customs territory of the United
States (the States, the District of Columbia and the Commonwealth
of Puerto Rico). Therefore, we recommend that subsection 16 (c) be
amended to define "State" for the purposes of that subsection to include
[p. 45]
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2136 LEGAL COMPILATION—SUPPLEMENT I
the States, the District of Columbia, and the Commonwealth of Puerto'
Rico.
Section 16(c), like the existing law (7 U.S.C. 135th), provides that
the Secretary of the Treasury shall notify the Administrator of the-
Environment Protection Agency of the arrival of pesticides and de-
vices, and deliver samples to the Administrator, upon his request.
Because acute dermal or inhalation toxicity of many of those sub-
stances may be hazardous to the persons handling them, we would ex-
pect to make regulations under the authority of section 16 (e) to insure
the safetv of Customs officers taking samples.
Section 16 (c) would also provide that the Secretary of the Treas-
ury may deliver a pesticide or device in violation of the provisions
of the Act to the consignee pending examination and decision, on
execution of a bond for the full amount of the invoice value plus duty.
On refusal to return the pesticide or device to the custody of the
Secretary of the Treasury, when demanded, the consignee shall for-
fieit the full amount of the bond. As worded, this provision would
allow for no reduction of the claim or liquidated damages, such as
presently provided for in section 1623(c), Tariff Act of 1930, under
which the Secretary of the Treasury may cancel any charge against
a bond upon payment of a lesser amount.
As primary administrative and enforcement responsibility properly
is to be exercised under the bill by the Administrator, Environmental
Protection Agency, it is suggested that section 16 (e) be changed to
read:
"(e) REGTJLATIONS.—The Administrator shall prescribe regula-
tions for the enforcement of this section, and the Secretary of the
Treasury, in consultation with the Administrator, shall prescribe con-
forming regulations for Customs enforcement and sampling proce-
dures at ports of entry."
Since the Bureau of Customs does not have the expertise to deter-
mine if a pesticide or device complies with the requirements of the
Environmental Protection Agency, you may wish to consider inclu-
sion of a provision similar to the following:
"Every person importing a pesticide or device into the United
States shall furnish Customs at the port of entry a certificate of com-
pliance in the form prescribed by the Administrator, certifying that
such pesticide or device conforms to all Federal requirements pre-
scribed under this Act, or that nonconforming articles will be brought
into compliance under procedures prescribed in regulations of the
Administrator."
The Department defers to the Environmental Protection Agency,
which has primary administrative and enforcement responsibilities,
on the merits of the bill. The Department does not anticipate any
unusual difficulties in carrying out at ports of entry its supporting
enforcement responsibilities.
The Department has been advised by the Office of Management and
Budget that there is no objection from the standpoint of the Admin-
istration's program to the submission of this report to your Com-
mittee.
Sincerely yours,
SAMUEL E. PIERCE, Jr.,
General Counsel.
[p. 46]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2137
l.lk(4) COMMITTEE OF CONFERENCE
S. REP. No. 92-1540, 92d Cong., 2d Sess. (1972)
FEDERAL ENVIRONMENTAL PESTICIDE CONTROL ACT
OCTOBER 5, 1972.—Ordered to be printed
Mr. POAGE, from the committee of conference,
submitted the following
CONFERENCE REPOET
[To accompany H.R. 10729]
The committee of conference on the disagreeing votes of the two
Houses on the amendment of the Senate to the bill (H.R. 10729) to
amend the Federal Insecticide, Fungicide, and Rodenticide Act,
and for other purposes having met, after full and free conference,
have agreed to recommend and do recommend to their respective
Houses as follows:
That the House recede from its disagreement to the amendment of
the Senate and agree to the same with an amendment as follows:
In lieu of the matter proposed to be inserted by the Senate amend-
ment insert the following:
That this Act may be cited as the "Federal Environmental Pesticide
Control Act of 1972"'.
AMENDMENTS TO FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE
ACT
SEC. 2. The Federal Insecticide, Fungicide, and Rodenticide Act
(7 U.S.C. 135 et seq.) is amended to read as follows;
"SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
"(a) SHORT TITLE.—This Act may be cited as the 'Federal Insecti-
cide, Fungicide, and Rodenticide Act'.
"(b) TABLE OF CONTENTS.—
"Section 1. Short title and table of contents.
"(a) Short title.
"(b) Table of contents. > ^r ..,
IP- 1]
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2138 LEGAL COMPILATION—SUPPLEMENT I
•'Sec. 2. Definitions.
"(a) Active ingredient.
"(b) Administrator.
"(e) Adulterated.
"(d) Animal.
"(e) Certified applicator, etc.
"(1) Certified applicator.
"(#) Private applicator.
"(3) Commercial applicator.
"(4) Under the direct supervision and control of a certified applicator.
"(/) Defoliant.
"(a) Desiccant.
"(h) Device.
"(i) District court.
"(/) Environment.
"(*) Fungus.
"(I) Imminent hazard.
' (m) Inert ingredient.
"(re) Ingredient statement.
"(o) Insect.
"(p) Label and labeling.
"(1) Label.
"(«) Labeling.
"(q) Misbranded.
"(r) Nematode.
"(s) Person.
"(0 Pesi.
"(M) Pesticide.
"(») PZare< regulator.
"(w) Producer and produce.
"(x) Protect health and the environment.
"(y) Registrant.
' (zj Registration.
"(ao) S/ate.
"(W>) Unreasonable adverse effects on the environment.
"(cc) Weed.
"(dd) Establishment.
"Sec. 3. Registration of pesticides.
"(o) Requirement.
' (b) Exemptions.
"(c) Procedure for registration.
"(1) Statement required.
"(#) Data in support of registration.
"(3) Time for acting with respect to application.
"(4) Notice of application.
"(6) Approval of registration.
"(6) Denial of registration.
"(d) Classification of pesticides.
"(1) Classification for general use, restricted use, or both.
"(#) Change in classification.
"(e) Products with same formulation and claims.
"(/) Miscellaneous.
"(1) Effect of change of 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.
"(#) State certification.
"(b) State plans.
"Sec. 5. Experimental use permits.
"(a) Issuance.
' (b) Temporary tolerance level.
"(c) Use under permit.
"(d) Studies.
"(e) Revocation. r _n
[p. 2]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2139
"Sec. S. Administrative review; suspension.
"(a) Cancellation after five years.
"(1) Procedure.
"(#) Information.
"(6) Cancellation and change in classification.
"(c) Suspension.
"(1) Order.
"(2) Expedite hearing.
"(3) Emergency order.
"(4) Judicial review.
"(d) Public hearings and scientific review.
"(«) Judicial review.
"Sec. 7. Registration of establishments.
"(a) Requirement.
"(6) Registration.
"(c) Information required.
"(d) Confidential records and information.
"Sec. 8. Books and records.
"(a) Requirement.
"(b) Inspection.
"Sec. 9. Inspection of establishments, etc.
"(a) In general.
"(b) Warrants.
"(c) Enforcement.
"(1) Certification of facts to Attorney General.
"(8) Notice not required.
"(3) 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. 18. Stop sale, use, removal, and seizure,
"(a) Stop sale, etc., orders.
"(6) Seizure.
"(c) Disposition after condemnation.
"(d) Court costs, etc.
"Sec. 14. Penalties.
"(a) Civil penalties.
"(1) In general.
"(#) Private pesticide applicator.
"(3) Hearing.
"(4) References to Attorney General.
"(b) Criminal penalties.
"(1) In general.
"(#) Private pesticide applicator.
"(3) Disclosure of information.
' {4) Acts of officers, agents, etc.
"Sec. 16. Indemnities.
"(a) Requirement.
"(b) Amount of payment.
"(1) In general.
"(«) Special rule.
"Sec. 16. Administrative procedure; judicial review.
"(a) District court review.
"(b) Review by Court of Appeals.
"(c) Jurisdiction of district courts.
"(d) Notice of judgments. _
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2140 LEGAL COMPILATION—SUPPLEMENT I
"Sec. 17. Imports and exports.
"(a) Pesticides and devices intended for export.
' (b) Cancellation notices furnished to foreign governments.
"(e) Importation of pesticides and devices.
' (d) Cooperation in international efforts.
"(e) Regulations.
"Sec. 18. Exemption of Federal agencies.
"Sec. 19. Disposal and transportation.
"(a) Procedures.
"(b) Advice to Secretary of Transportation.
"Sec. 20. Research and monitoring.
"(a) Research.
"(6) National monitoring plan.
"(c) Monitoring.
"Sec. 21. Solicitation of public comments; notice of public hearings.
"Sec. 22. Delegation and cooperation.
"Sec. 23. State cooperation, aid, and training.
"(a) Cooperative agreements.
' (b) Contracts for training.
"Sec. 24. Authority of States.
"Sec. 25. Authority of Administrator.
"(a) Regulations.
"(b) Exemption of pesticides.
"(c) Other authority.
"Sec. 26. Severability.
"Sec. #7. Authorization for appropriations.
"SEC. 2. DEFINITIONS.
"For purposes of this Act—
"(a) ACTIVE INGREDIENT.—The term 'active ingredient' means—
"(1) in the case of a pesticide other than a plant regulator, de-
foliant, or desiccant, an ingredient which will prevent, destroy, repel,
or mitigate 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 product thereof;
"(8) 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.
"(b) ADMINISTRATOR.—The term 'Administrator' means the Admin-
istrator of the Environmental Protection Agency.
"(c) ADULTERATED.—The term 'adulterated applies to any pesticide if:
"(1) its strength or purity falls below the professed standard of
quality as expressed on its labeling under which it is sold;
"(2) any substance has been substituted wholly or in part for the
pesticide; or
"(3) any valuable constituent of the pesticide has been wholly or
in part abstracted.
"(d) ANIMAL*—The term 'animal' means all vertebrate and inverte-
brate 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 sectioni 4 as authorized
to use or supervise the use of any pesticide which is classified for
restricted use. _ . _
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2141
"(2) PRIVATE APPLICATOR.—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 oj
personal services between producers of agricultural commodities) on
the property oj another person.
"(&) COMMERCIAL APPLICATOR.-—The term 'commercial appli-
cator' 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 APPLI-
CATOR.—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.
"(/) 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.
"(g) DESICCANT.—The term 'desiccant' means any substance or
mixture of substances intended for artificially accelerating the drying of
plant tissue.
"(h) DEVICE.—The term 'device' means any instrument or contrivance
(other than a firearm) which is intended for trapping, destroying, repelling,
or mitigating any pest or any other form of plant or animal life (other than
man and other than bacteria, virus, or other microorganism on or in living
man or other living animals); but not including equipment used for the
application of pesticides when sold separately therefrom.
"(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 oj 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. '
"(k) FUNGUS.—The term 'fungus' means any non-chlorophyll-bearing
thallophyte (that is, any non-chlorophyll-bearing plant of a lower order
than mosses and liverworts), as for example, rust, smut, mildew, mold,
yeast, and bacteria, except those on or in living man or other animals
and those on or in processed food, beverages, or pharmaceutical.
"(1) IMMINENT HAZARD.—The term 'imminent hazard' means a situa-
tion which exists when the continued use of a pesticide during the time
required for cancellation proceeding would be likely to result in unreason-
able adverse effects on the environment or will involve unreasonable hazard
to the survival of a species declared endangred by the Secretary of the
Interior under Public Law 91-135.
"(m) INERT INGREDIENT.—The term 'inert ingredient' means an
ingredient which is not active.
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2142 LEGAL COMPILATION—SUPPLEMENT I
"(n) INGREDIENT STATEMENT.—The term 'ingredient statement'
means a statement which contains—
"(/) 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 elementary arsenic.
"(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 insecta, comprising
six-legged, usually winged forms, as for example, beetles, bugs, bees,
flies, and to other allied classes of arthropods whose members are wingless
and usually have more than six legs, as for example, spiders, mites,
ticks, centipedes, and wood lice.
"(p) LABEL AND LABELING.—
"CO LABEL.—The term 'label' means the written, printed, or
graphic matter on, or attached to, the pesticide or device or any
of its containers or wrappers.
"(2) LABELING.—The term 'labeling' means all labels and all
other written, printed, or graphic matter—
"(A) accompanying the pesticide or device at any time; or
' (ff) to which reference is made on the label or in litera-
ture accompanying the pesticide or device, except to current
official publications of the Environmental Protection Agency,
the United States Departments of Agriculture and Interior,
the Department of Health, Education, and Welfare, State
experiment stations, State agricultural colleges, and other
similar Federal or State institutions or agencies authorized
by law to conduct research in the field of pesticides.
"(q) MlSBRAffDED.
"(1) A pesticide 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;
"(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) (8);
"(C) it is an imitation of, or is offered for sale under the
name of, another pesticide;
"(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 con-
spicuousness (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;
"(F) the labeling accompanying it does not contain direc-
tions 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 to protect health and the environment;
[p. 6]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2143
"(G) 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 8(d) of this Act,
is adequate to protect health and the environment.
"(2) A pesticide is misbranded if—
"(A) the label does not bear an ingredient statement on that
part of the immediate container (and on the outside container
or wrapper of the retail package, if there be one, through which
the ingredient statement on the immediate container cannot be
clearly read) which is presented or displayed under customary
conditions of purchase, except that a pesticide is not mis-
branded under this subparagraph if:
"(i) the size of form of the immediate container, or the outside
container or wrapper of 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 of 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;
"(C) there is not affixed to its container, and to the out-
side 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 of the producer, registrant,
or person for whom produced;
"(ii) the name, brand, or trademark under which the
pesticide is sold;
"(Hi) the net weight or measure of the content: Provided,
That the Administrator may permit reasonable variations;
and
"(v) 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
"(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 a back-
ground of distinctly contrasting color; and
"(Hi) a statement of a practical treatment (first aid
or otherwise) in case of poisoning by the pesticide.
"(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.
"(s) PEKSON.—The term 'person' means any individual, partnership,
association, corporation, or any organized group of persons whether
incorporated or not.
525-313 O - 73 - 21
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2144 LEGAL COMPILATION—SUPPLEMENT I
"(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
"(u) PESTICIDE. — The term 'pesticide' means (1) any substance or
mixture of substances intended for preventing, destroying, repelling, or
mitigating any pest, and (2) any substance or mixture of substances
intended for use as a plant regulator, defoliant, or desiccant.
"(v) PLANT REGULATOR. — The term 'plant regulator' means any sub-
stance or mixture of substances intended, through physiological action,
for accelerating or retarding the rate of growth or rate of maturation, or
for otherwise altering the behavior of 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
any of such of those nutrient mixtures or soil amendments as are commonly
known as vitamin-hormone horticultural products, intended for improve-
ment, maintenance, survival, health, and propagation of plants, and as
are not for pest destruction and are nontoxic, nonpoisonous in the un-
diluted packaged concentration.
"(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'
mean protection against any unreasonable adverse effects on the
environment.
"(y) REGISTRANT. — The term 'registrant' means a person who has
registered any pesticide pursuant to the provisions of this Act.
(z) REGISTRATION. — The term 'registration' includes reregistration.
"(aa) STATE. — The term 'State' means a State, the District of Colum-
bia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the
Trust Territory of the Pacific Islands, and American Samoa.
"(bb) UNREASONABLE ADVERSE EFFECTS ON THE ENVIRONMENT. —
The term 'unreasonable adverse effects on the environment' means any
unreasonable risk to man or the environment, taking into account the
economic, social, and environmental costs and benefits of the use of any
pesticide.
"(cc) WEED. — The term 'weed' means any plant which grows where
not wanted.
"(dd) ESTABLISHMENT. — The term 'establishment' means any place
where a pesticide or device is produced, or held, for distribution or sale.
"SEC. 3. REGISTRATION OF PESTICIDES.
"(a) REQUIREMENT. — 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.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2145
"(6) Exemptions.—A pesticide which is not registered with the Admin-
istrator may be transferred if—
"(1) the transfer is from one registered establishment to another
registered establishment operated by the same producer solely jor
packaging at the second establishment or jor 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 require-
ments of an experimental use permit.
"(c) PROCEDURE FOR REGISTRATION.—
"(1) STATEMENT REQUIRED.—Each applicant for registration of
a pesticide shall file with the Administrator a statement which
includes—
"(A) the name and address of the applicant and of any other
person whose name will appear on the labeling;
"(B) the name of the pesticide;
"(C) a complete copy of the labeling of the pesticide, a state-
ment of all claims to be made for it, and any directions for its
use;
"(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 unless such other applicant shall
have first offered to pay reasonable compensation for producing
the test data to be relied upon and such data is not protected
from disclosure by section 10(b). If the parties cannot agree on
the amount and method of payment, the Administrator shall
make such determination and may fix such other terms and
conditions as may be reasonable under the circumstances. The
Administrator's determination shall be made on the record
after notice and opportunity jor hearing. If the owner of the
test data does not agree with said determination, he may, within
thirty days, take an appeal to the federal district court for the
district in which he resides with respect to either the amount of
the payment or the terms of payment, or both. In no event shall
the amount of payment determined by the court be less than
that determined by the Administrator;
"(E) the complete formula 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 REGISTRATION.—The Administrator
shall publish guidelines specifying the kinds of information 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 suijicient time
for applicants to obtain such additional information. Except as
provided by subsection (c)(l)(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.
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2146 LEGAL COMPILATION—SUPPLEMENT I
"(5) TlME FOB ACTING WITH RESPECT TO APPLICATION.— The
' Administrator shall review the data after receipt of the applica-
tion 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 SO days in
which any Federal agency or any other interested person may
comment.
"(5) APPROVAL OF REGISTRATION.—The Administrator shall
register a pesticide if he determines that, when considered with
any restrictions imposed under subsection (d)—
"(A) its composition is such as to warrant the proposed
claims for it;
"(B) its labeling and other material required to be sub-
mitted comply with the requirements of this Act;
"(C) it will perform its intended function without un-
reasonable adverse effects on the environment; and
"(D) when used in accordance with widespread and com-
monly recognized practice it will not generally cause un-
reasonable adverse effects on the environment.
The Administrator shall not make any lack of essentiality a criterion
for denying registration of any pesticide. Where two pesticides meet
the requirements of this paragraph, one should not be registered in
preference to the other.
"(6) DENIAL OF REGISTRATION.—If the Administrator deter-
mines that the requirements of paragraph (5) for registration are
not satisfied, he shall notify the applicant for registration of 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 re-
ceives the notice, the Administrator may refuse to register the pesticide.
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 registra-
tion or other interested person with the concurrence of the applicant
shall have the same remedies as provided for in section 6.
"(d) CLASSIFICATION OF PESTICIDES.—
"(1) CLASSIFICATION FOR GENERAL USE, RESTRICTED USE, OR
BOTH.
"(A) As a part of the registration of a pesticide the Admin-
istrator 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
[p- 10]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2147
restricted use, he shall classify it for both general use and re-
stricted 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 widespread and com-
monly recognized practice, will not generally cause unreasonable
adverse effects on the environment, he will classify the pesticide,
or the particular use or uses of the pesticide to which the deter-
mination applies, for general use.
"(G) 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 widespread and com-
monly recognized practice, may generally cause, without addi-
tional regulatory restrictions, unreasonable adverse effects on the
environment, including injury to the applicator, he shall classify
the pesticide, or the particular use or uses to which the determina-
tion 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 di-
rect 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 unreasonable 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.
"(#) CHANGE IN CLASSIFICATION.—If the Administrator deter-
mines that a change in the classification of any use of a pesticide
from general use to restricted use is necessary to prevent unreason-
able 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 relief from such determination under
section 6(b).
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2148 LEGAL COMPILATION—SUPPLEMENT I
"(e) PRODUCTS WITH SAME FORMULATION AND CLAIMS.—Products
which have the same formulation, are manujactured 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 regis-
tered as a single pesticide; and additional names and labels shall be added
to the registration by supplemental statements.
"(f) MISCELLANEOUS.—
"(1) EFFECT OF CHANGE OF LABELING OR FORMULATION.—If
the labeling or formulation for a pesticide is changed, the registration
shall be amended to reflect such change if the Administrator deter-
mines that the change will not violate any provision of this Act.
"(2) REGISTRATION NOT A DEFENSE.-—In no event shall registra-
tion of an article be construed as a defense for the commission of
any offense under this Act: Provided, That as long as no cancella-
tion proceedings are in effect registration of a pesticide shall be
prima facie evidence that the presticide, its labeling and packaging
comply with the registration provisions of the Act.
"(5) 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.
"SEC. 4. USE OF RESTRICTED USE PESTICIDES; CERTI-
FIED APPLICATORS.
"(a) CERTIFICATION PROCEDURE.—
t'(l) FEDERAL CERTIFICATION.—Subject to paragraph (2), the
Administrator shall prescribe standards for the certification of
applicators of pesticides. 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 infor-
mation 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 para-
graph (1).
Any State certification program under this section shall be maintained in
accordance with the State plan approved under this section.
[p. 12]
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2149
"(6) 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 Administra-
tor approves a plan submitted under this paragraph, then such State
shall certify applicators of pesticides with respect to such State. When-
ever 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 of such plan.
"SEC. 5. EXPERIMENTAL USE PERMITS.
"(a) ISSUANCE.—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 is filed.
"(b) TEMPORARY TOLERANCE LEVEL.—If the Administrator deter-
mines 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
level 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 Admin-
istrator may specify that studies be conducted to detect whether the use of
the pesticide under the permit may cause unreasonable adverse effects on
the environment. All results of such studies shall be reported to the Admin-
istrator before such pesticide may be registered under section 3.
"(e) REVOCATION.—-The Administrator may revoke any experi-
mental 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
unreasonable adverse effects on the environment.
"(/) 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,
"SEC. 6. ADMINISTRATIVE REVIEW; SUSPENSION.
"(a) CANCELLATION AFTER FIVE YEARS—
"CO PROCEDURE.—The Administrator shall cancel the registra-
tion of any pesticide at the end of 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, before the end of such period,
[p. 13]
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2150 LEGAL COMPILATION—SUPPLEMENT I
requests in accordance with regulations prescribed by the Adminis-
trator that the registration be continued in effect: Provided, That the
Administrator may permit the continued sale and use of existing
stocks oj a pesticide whose registration is canceled under this sub-
section or subsection (b) to such extent, under such conditions,
and for such, uses as he may specify if fie determines that such sale
or use is not inconsistent with the purposes oj this Act and will not
have unreasonable adverse effects on the environment. The Adminis-
trator 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
concurrence of the registrant does not request that the registration be
continued in effect.
"(2) INFORMATION.—If at any time after the registration of a
pesticide the registrant has additional factual information regarding
unreasonable adverse effects on the environment of the pesticide, he
shall submit such information to the Administrator.
"(b) CANCELLATION AND CHANGE IN CLASSIFICATION.—If it appears
to the Administrator that a pesticide or its labeling or other material
required to be submitted does not comply with the provisions of this Act
or, when used in accordance with widespread and commonly recognized
practice, generally causes unreasonable adverse effects on the environment,
the Administrator may issue a notice of his intent either—
"(/) 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 canceled 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 SO days from receipt
by the registrant, or publication, of a notice issued under paragraph (1),
whichever occurs later, 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 (%), a decision pertaining to registration or classifica-
tion issued after completion of such hearing shall be final.
"(c) SUSPENSION.—
"00 ORDER.—If the Administrator determines that action is
necessary to prevent an imminent hazard during the time required
for cancellation or change in classification proceedings, he may, by
order, suspend the registration of the pesticide immediately. No
order of suspension 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 ($), the Administrator shall
notify the registrant prior to issuing any suspension order. Such
notice shall include findings pertaining 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 registrant's receipt
of the notification provided for by paragraph (1), the suspension
order may be issued and shall take effect and shall not be renewable
[p. 14]
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PESTICIDES — STATUTES AND LEGISLATIVE HISTORY 2151
by a court. Ij a hearing is requested, it shall commence within jive
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. The presiding officer shall have
ten days from the conclusion of the presentation of evidence to submit
recommended findings and conclusions to the Administrator, who
shall then have seven days to render a final order on the issue of
suspension.
"(3) EMERGENCY ORDER. — Whenever the Administrator deter-
mines 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 ($)
shall apply except that (i) the order of suspension shall be in effect
pending the expeditious completion of the remedies provided by that
paragraph and the issuance of a final order on suspension, and
(ii) 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. Any person so filing briefs shall
be considered a party to such proceeding for the purposes of section
"(4) JUDICIAL REVIEW. — A final order on the question of
suspension following a hearing shad be renewable 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 docket of
the courts of appeals. Any order of suspension entered prior to a hear-
ing before the Administrator shall be subject to immediate review in an
action by the registrant or other interested person with the concur-
rence of the registrant in an appropriate district court, solely to
determine whether the order of suspension was arbitrary, capricious
or an abuse of discretion, or whether the order was issued in accord-
ance with the procedures established by law. The effect of any order of
the court will be only to stay the effectiveness of the suspension order,
pending the Administrator's final decision with respect to cancellation
or change in classification. This action may be maintained simul-
taneously 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 court.
"(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 (6), 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 ap-
plicant or other interested parties, or to the issues stated by the Ad-
ministrator, if the hearing is called by the Administrator rather than
by the filing of objections. Upon a showing of relevance and reason-
able scope of evidence sought by any party to a public hearing, the
Hearing Examiner shall issue a subpena to compel testimony or pro-
duction of documents from any person. The Hearing Examiner 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
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2152 LEGAL COMPILATION—SUPPLEMENT I
documents produced and shall order the payment of reasonable fees and
expenses as a condition to requiring testimony of the witness. On con-
test, 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 and when in the Hearing
Examiner's judgment it is necessary or desirable, the Hearing Examiner
shall at any time before the hearing record is closed refer to a Committee
of the National Academy of Sciences the relevant questions of scientific
fact involved in the public hearing. No member of any committee of the
National Academy of Sciences established to carry out the functions of
this section shall have a financial or other conflict of interest with respect
to any matter considered by such committee. 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 compe-
tent scientific review of the questions presented to Committees of the
Academy and to provide such other scientific advisory services as may be
required by the Administrator for carrying out the purposes of this Act.
As soon as practicable after completion of the hearing (including the re-
port of the Academy) but not later than 90 days thereafter, the Adminis-
trator 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 canceling the registration, changing the classifica-
tion, 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.
"(e) JUDICIAL REVIEW.—Final orders of the Administrator under
this section shall be subject to judicial review pursuant to section 16.
"SEC. 7. REGISTRATION OF ESTABLISHMENTS.
"(a) REQUIREMENT.—No person shall produce any pesticide sub-
ject 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
establishment and of the producer who operates such establishment.
"(b) REQISTRATION.—Whenever the Administrator receives an
application 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 80 days after it is
registered of the types and amounts of pesticides—
"(-4) 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 Adminis-
trator for the purpose of issuing a stop sale order pursuant to section
13, inform him of the name and address of any recipient of any
pesticide produced in any registered establishment which he operates.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2153
"(d) CONFIDENTIAL RECORDS AND INFORMATION.—Any informa-
tion submitted to the Administrator pursuant to subsection (c) shall be con-
sidered confidential and shall be subject to the provisions of section 10.
"SEC. 8. BOOKS AND RECORDS.
"(a) REQUIREMENT.—The Administrator may prescribe regulations
requiring producers to maintain such records with respect to their opera-
tions and the pesticides and devices produced as he determines are neces-
sary for the effective enforcement of this Act. No records required under
this subsection shall extend to financial data, sales data other than ship-
ment data, pricing data, personnel data, and research data (other than
data relating to registered pesticides or to a pesticide for which an applica-
tion for registration has been filed).
"(b) INSPECTION.—For the purposes of enforcing the provisions of
this Act, any producer, distributor, carrier, dealer, or any other person
who sells or offers for sale, delivers or offers for delivery any pesticide or
device subject to this Act, shall, upon request of any officer or employee
of the Environmental Protection Agency or of any State or political sub-
division, duly designated by the Administrator, furnish or permit svch
person at all reasonable times to have access to, and to copy: (1) all records
showing the delivery, movement, or holding of such pesticide or device,
including the quantity, the date of shipment and receipt, and the name of
the consigner and consignee; 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
pesticide or device. Any inspection with respect to any records and informa-
tion 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 lias been filed).
"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 Administi atcr or
authorized to enter at reasonable times, any establishment or other place
where pesticides or devices are held for distribution or sale for the purpose
of inspecting and obtaining 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,
appropriate 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 befurnished promptly to the owner, operator,
or agent in charge.
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2154 LEGAL COMPILATION—SUPPLEMENT I
"(6) WARRANTS.—For purposes oj 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 adul-
terated, 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 of
this Act.
"(e) ENFORCEMENT:—
"(1} CERTIFICATION OF FACTS TO ATTORNEY GENERAL.—The
examination of pesticides or devices shall be made in the Environ-
mental Protection Agency or elsewhere as the Administrator may
designate for the purpose, of determining from such examinations
whether they comply with the requirements of this Act. If it shall
appear from any such examination that they fail to comply with the
requirements of this Act, the 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 Administrator
it appears that the provisions of this Act have been violated by such
person, then the Administrator shall certify the facts to the Attorney
General, with a copy of the results of the analysis or the examination
of such pesticide for the institution of a criminal proceeding pursuant
to section 14(b) or a civil proceeding under section 14(d)> when
the Administrator determine* 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 sub-
section are not prerequisites to the institution of any proceeding
by the Attorney General.
"(5) WARNING NOTICES.—Nothing in this Act shall be con-
strued as requiring the Administrator to institute proceedings
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.
"SEC. 10. PROTECTION OF TRADE SECRETS AND OTHER
INFORMATION.
"(a) IN GENERAL.—In submitting data required by this Act, the
applicant 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.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2155
"(b) DISCLOSURE.—Notwithstanding any other provision of this Act,
the Administrator shall not make public information which in his judg-
ment contains or relates to trade secrets or commercial or financial infor-
mation 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.
"(c) DISPUTES.—If the Administrator proposes to release for inspec-
tion information which the applicant or registrant believer to be protected
from disclosure under subsection (b), he shall notify the applicant or
registrant, in writing, by certified mail. The Administrator shall not
thereafter make available for inspection such data until thirty days after
receipt of the notice by the applicant or registrant. During this period,
the applicant or registrant may institute an action in an appropriate
district court for a declaratory judgment as to whether such information
is subject to protection under subsection (b).
"SEC. 11. STANDARDS APPLICABLE TO PESTICIDE AP-
PLICATORS.
"(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
standard* for licensing or certification, the Administrator shall establish
separate standards for commercial and private applicators.
"SEC. 12. UNLAWFUL ACTS.
"(a) IN GENERAL.—
"(1) Except as provided by subsection (b), it shall be unlawful
for any person in any State to distribute, sett, offer for sale, hold
for sale, ship, deliver for shipment, or receive and (having so received)
deliver or offer to deliver, to any person—•
"(A) any pesticide which is not registered under section 3,
except as provided by section 6(a)(l):
"(B) any registered pesticide if any claims made for It OF a
part of its distribution or sale substantially differ from any
claims made for it as a part of the statement required in con-
nection with its registration under section 3;
"(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;
"(D) any pesticide which has not been colored or discolored
pursuant to the provisions of section 25 (c) (5);
"(E) any -pesticide which is adulterated or misbranded; or
"(F} any device which is misbranded.
"(2) It shall be unlawful for any person—
"(A) to detach, alter, deface, or destroy, in whole or in part,
any labeling required under this Act;
"(B) to refuse to keep any records required pursuant to
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
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2156 LEGAL COMPILATION—SUPPLEMENT I
an officer or employee of the Environmental Protection Agency
to take a sample of any pesticide pursuant to section 9,
"(C) to give a guaranty or undertaking provided for in
subsection (6) which is false in any particular, except that a
person who receives and relies upon a guaranty authorized
under 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,
"(D) to use for his own advantage or to reveal, other than to
the Administrator, or officials or employees of the Environ-
mental Protection Agency or other Federal executive agencies,
or to the courts, or to physicians, pharmacists, and other
qualified persons, needing such information for the perform-
ance of their duties, in accordance with such directions as
the Administrator may prescribe, any information acquired
by authority 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 assigned 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 S(d) and any regulations
thereunder;
"(GO to use any registered pesticide in a manner incon-
sistent with its labeling;
"(H) to use any pesticide which is under an experimental
use permit contrary to the provisions of such permit;
"(/) 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)(l);
"(X) 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
1, any records required to be maintained pursuant to section 8,
any report filed 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;
"(0) to add any substance to, or take any substance from,
any pesticide in a manner that may defeat the purpose of this
Act; or
"(P) to use any pesticide in tests on human beings unless
such human beings (i) are fully informed of the nature and
purposes of the test and of any physical and mental health
consequences which are reasonably foreseeable therefrom, and
(ii) freely volunteer to participate in the test.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2157
"(6) EXEMPTIONS.—The penalties provided for a violation of
paragraph (1) of subsection (a) shall not apply to—
"CO any person who establishes a guaranty signed by, and
containing the name and address of, the registrant or person re-
siding in the United States from whom he purchased or received in
good faith the pesticide in the same unbroken package, to the effect
that the pesticide was lawfully registered at the time of sale and
delivery to him, and that it complies with the other requirements of
this Act, and in such case the guarantor shall be subject to the penal-
ties which would otherwise attach to the person holding the guaranty
under the provisions of this Act;
"(2) any carrier while lawfully shipping, transporting^ or de-
livering for shipment any pesticide or device, if such carrier upon
request of any officer or employee duly designated by the Adminis-
trator shall permit such officer or employee to copy all of its records
concerning such pesticide or device;
"(3) any public official while engaged in the performance of his
official duties;
"(4) 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
properties and from which the user does not expect to receive any
benefit in pest control from its use.
"SEC. 13. STOP SALE, USE, REMOVAL, AND SEIZURE.
"(a) STOP SALE, ETC., ORDERS.—Whenever any pesticide or device
is found by the Administrator in any State and there is reason to believe
on the basis of inspection or tests that such pesticide or device is in vio-
lation of any of the provisions of this Act, or that such pesticide 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 has been canceled by
a final 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 no person shall sell, use, or remove the pesticide or device
described in the order except in accordance with the provisions of the order.
"(6) SETZURE.—Any pesticide or device that is being transported or,
having been transported, remains unsold or in original unbroken packages,
or that is sold or offered for sale in any State, or that is imported-from a
foreign country, shall be liable to be proceeded a,gainst in any district court
in the district where it is found and seized for confiscation by a process in
rem for condemnation if—
"(1) in the case of a pesticide—
"(A) it is adulterated or misbranded;
"(B) it is not registered pursuant to the provisions of section
3' . . . . . - .
"(C) its labeling fails to bear the information required by
this Act;
"(D) it is not colored or discolored and such coloring or
discoloring is required under this Act; or
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2158 LEGAL COMPILATION—SUPPLEMENT I
"(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, 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 unreasonable adverse effects
on the environment. In the case of a plant regulator, defoliant, or
desiccant, used in accordance with the label claims and recom-
mendations, 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.
"(c) DISPOSITION AFTER CONDEMNATION.—If the pesticide or device
is condemned it shall, after entry of the decree, be disposed of by de-
struction or sale as the court may direct and the proceeds, if sold, less
the court costs, shall be paid into the Treasury of the United States,
but the pesticide or device shall not be sold contrary to the provisions of this
Act or the laws of the jurisdiction in which it is sold: Provided, That upon
payment of the costs of the condemnation proceedings and the execution and
delivery of a good and sufficient bond conditioned that the pesticide or
device shall not be sold or otherwise disposed of contrary to the provisions of
the Act or the laws of any jurisdiction in which sold, the court may direct
that such pesticide or device be delivered to the owner thereof. The pro-
ceedings of such 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 pro-
ceedings shall be at the suit of and in the name of the United States.
"(d) COURT COSTS, ETC.—When a decree of condemnation is entered
against the 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 pesticide or device.
"SEC. 14. PENALTIES.
"(a) CIVIL PENALTIES.—
"(/) 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 Adminis-
trator of not more than $5,000 for each offense.
"(2) PRIVATE 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 Adminis-
trator 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.
"(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 appro-
priateness 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.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2159
" (4) REFERENCES TO ATTORNEY GENERAL.—In case of in-
ability 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.—
"(1) IN GENERAL.—Any registrant, commercial applicator,
wholesaler, dealer, retailer, or other distributor who knowingly
violates any provision of this Act shall be guilty of a misdemeanor
and shall on conviction be fined not more than $25,000, or im-
prisoned for not more than one year, or both.
"(2) PRIVATE APPLICATOR.—Any private 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 30 days, or both.
"(3) DISCLOSURE OF INFORMATION.—Any person, who, with
intent to defraud, uses or reveals information relative to formulas
of products acquired under the authority of section 3, shall be fined
not more than $10,000, or imprisoned for not more than three years,
or both.
"(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.
"SEC. 15. INDEMNITIES.
"(a) REQUIREMENT.—If—
"(1) the Administrator notifies a registrant that he has suspended
the registration of a pesticide because such action is necessary to
prevent an imminent hazard;
• "(2) the registration of the pesticide is canceled as a result of a
final determination that the use of such pesticide will create an
imminent hazard; and
"(3) any person who owned any quantity of such pesticide im-
mediately before the notice to the registrant under paragraph (1)
suffered losses by reason of suspension or cancellation of the regis-
tration,
the Administrator shall make an indemnity payment to such person,
unless the Administrator finds that such person (i) had knowledge of
facts which, in themselves, would have shown that such pesticide did not
meet the requirements of section 3 (c) (5) for registration, and (ii) continued
thereafter to produce such pesticide without giving timely notice of such
facts to the Administrator.
"(b) AMOUNT OF PAYMENT.—
"(1) IN GENERAL.—The amount of the indemnity payment under
subsection (a) to any person shall be determined on the basis of the
cost of the pesticide owned by such person immediately before the
notice to the registrant referred to in subsection (a)(l); except that
in no event shall an indemnity payment to any person exceed the
fair market value of the pesticide owned by such person immediately
before the notice referred to in subsection (d)(l).
525-313 O - 73 - 22
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2160 LEGAL COMPILATION—SUPPLEMENT I
"(2) SPECIAL RULE.—Notwithstanding any other provision of
this Act, the Administrator may provide a reasonable time for use
or other disposal of such pesticide. In determining the quantity
of any pesticide for which indemnity shall be paid under this sub-
section, proper adjustment shall be made for any pesticide used or
otherwise disposed of by such owner.
"SEC. 16. ADMINISTRATIVE PROCEDURE; JUDICIAL RE-
VIEW.
"(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.
"(&) REVIEW BY COURT OF APPEALS.—In the case of actual contro-
versy as to the validity of any order issued by the Administrator following
a public hearing, any person who will be adversely affected by such order
and who had been a party to the proceedings may obtain judicial review
by filing in the United States court of appeals for the circuit wherein
such person resides or has a place of business, within 60 days 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 Administrator or any officer designated by him
for that purpose, and thereupon the 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 order of the Administrator shall be sustained if
it is supported by substantial evidence, when considered on the record as
a whole. 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 28 of the United States Code. The
commencement of proceedings under this section shall not, unless spe-
cifically 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
cases filed therein pursuant to this section.
"(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.
"(d) NOTICE ok JUDGMENTS.—-The Administrator shall, by publica-
tion in such manner as he may prescribe, give notice of all judgments
entered in actions instituted under the authority of this Act.
"SEC. 17. IMPORTS AND EXPORTS.
"(a) PESTICIDES AND DEVICES INTENDED FOR EXPORT.—Notwith-
standing any other provision of this Act, no 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, except that producers of such pesticides
and device? shall be subject to section 8 of this Act.
"(b) CANCELLATION NOTICES FURNISHED TO FOREIGN GOVERN-
MENTS.—Whenever a registration, or a cancellation or suspension of the
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2161
registration of a pesticide becomes effective, or ceases to be effective, the
Administrator shall transmit through the State Department notiiication
thereof to the governments of other countries and to appropriate inter-
national agencies.
"(c) IMPORTATION OF PESTICIDES AND DEVICES.—The Secretary of
the Treasury shall notify the Administrator of the arrival of pesticides
and devices and shall deliver to the Administrator, upon his request,
samples of pesticides or devices which are being imported into the United
States, giving notice to the owner or consignee, who may appear before the
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 provisions set forth in this Act, or is otherwise
injurious to health or the environment, the pesticide or device may be
refused admission, and the Secretary of the Treasury shall refuse delivery
to the consignee and ihall cause the destruction of any pesticide or device
refused delivery which shall not be exported by the consignee within 90
days from the date of notice of such refusal under such regulations as the
Secretary of the Treasury may prescribe: Provided, That the Secretary of
the Treasury may deliver to the consignee such pesticide or device pending
examination and decision in the matter on execution of bond for the amount of
the fullinvoice value of such pesticide or device, together with the duty thereon,
and on refusal to return such 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 said bond: And provided further, That all
charges for storage, cartage, and labor on 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 Adminis-
trator shall, 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.
"(e) REGULATIONS.— The Secretary of the Treasury, in consultation
with the Administrator, shall prescribe regulations for the enforcement of
subsection (c) of this section.
"SEC, 78. EXEMPTION OF FEDERAL AGENCIES.
"The Administrator may, at his discretion, exempt any Federal or State
agency from any provision of this Act if he determines that emergency
conditions exist which require such exemption.
"SEC. 19. 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) ff requested by the owner of the pesticide.
"(6) ADVICE TO SECRETARY OF TRANSPORTATION.—-The Admin-
istrator shall provide advice and assistance to the Secretary of Transporta-
tion with respect to his functions relating to the transportation of hazardous
materials under the Department of Transportation Act (49 U.S.C. 1667),
the Transportation of Explosives Act (18 U.S.C. 831-835), the Federal
[p. 25]
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2162 LEGAL COMPILATION—SUPPLEMENT I
Aviation Act of 1958 (49 U.S.C. 1421-1430, 1472 H), and the Hazardous
Cargo Act (46 U.S.C. 170, 375, 416).
"SEC. 20. RESEARCH AND MONITORING.
"(a) RESEARCH.—The Administrator shall undertake research, includ-
ing research by grant or contract with other Federal agencies, universities,
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.
"(6) NATIONAL MONITORING PLAN.—The Administrator shall for-
mulate 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 monitor-
ing 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 activities
shall be carried out in cooperation with other Federal, State, and local
agencies.
"SEC. 21. SOLICITATION OF COMMENTS; NOTICE OF PUB-
LIC HEARINGS.
"(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.
"(c) In connection with all public hearings under this Act the Admin-
istrator shall publish timely notice of such hearings in the Federal Register.
"SEC. 22. DELEGATION AND COOPERATION.
"(a) DELEGATION.—All authority vested in the Administrator by
virtue of the provisions of this Act may with like force and effect be executed
by such employees of the Environmental Protection Agency as the Ad-
ministrator may designate for the purpose.
"(b) COOPERATION.—The Administrator shall cooperate with the De-
partment of Agriculture, any other 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.
"SEC. 23. 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 ass'ist States in implementing cooperative enforcement
programs through grants-in-aid; and r nn,
IP- zbj
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2163
"(2) to assist State agencies in developing and administering
State programs for training and certification of applicators con-
sistent with the standards which he prescribes.
"(b) CONTRACTS FOX 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, in cooperation with the Secretary of
Agriculture, utilize the services of the Cooperative State Extension Services
for informing farmers of accepted. uses and other regulations made
pursuant to this Act.
"SEC. 24. AUTHORITY OF 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 require-
ments for labeling and packaging in 'addition to or different from those
required pursuant to this Act; and
"(c) a State may provide registration for pesticides formulated for
distribution and use within that State to meet special local needs if that
State is certified by the Administrator as capable of exercising adequate
controls to assure that such registration will be in accord with the purposes
of this Act 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.
"SEC. 25. AUTHORITY OF ADMINISTRATOR.
"(a) REGULATIONS.—The Administrator is authorized to prescribe
regulations to carry out the provisions of this Act. Such regulations shall
take into account the difference in concept and usage between various
classes of pesticides.
"(b) EXEMPTION OF PESTICIDES.— The Administrator may exempt
from the requirements of this Act by regulation any pesticide which he
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 Administrator, after notice and oppor-
tunity for hearing, is authorized—
"(1) to declare a pest any form of plant or animal life (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 health
or the environment;
"(2} to determine any pesticide which contains any substance or
substances in quantities highly toxic to man;
"(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 con-
sumption, 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; r 071
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2164 LEGAL COMPILATION—SUPPLEMENT I
"(4) t° 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;
"(5) to prescribe regulations requiring any pesticide to be colored
or discolored if he determines that such requirement is feasible and is
necessary for the protection of health and the environment; and
"(6) to determine and establish suitable names to be used in the
ingredient statement.
"SEC. 26. SEVERAB1L1TY.
"If any provision of this Act or the application thereof to any person
or circumstance is held invalid, the invalidity shall not affect other pro-
visions 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.
"SEC. 27. AUTHORIZATION FOR APPROPRIATIONS.
"There is authorized to be appropriated such sums as may be necessary
to carry out the provisions of this Act for each of the fiscal years ending
June 30, 1973, June 30, 1974, and June 30, 1975. The amounts author-
ized to be appropriated for any fiscal year ending after June 80, 1975,
shall be the sums hereafter provided by law.
AMENDMENTS TO OTHER ACTS
SEC. 3. The following Acts are amended by striking out the terms
"economic poisons" and "an economic poison" wherever they appear and
inserting in lieu thereof "pesticides" and "a pesticide" respectively:
(1) The Federal Hazardous Substances Act, as amended (15
U.S.C. 1261 et seq.);
(2) The Poison Prevention Packaging Act, as amended (15 U.S.C.
1471 et seg_.); and
(3) The Federal Food, Drug, and Cosmetic Act, as amended (21
U.S.C. 301 etseq.).
EFFECTIVE DATES OF PROVISIONS OF ACT
SEC. 4- (a) Except as otherwise provided in the Federal Insecticide,
Fungicide, and Rodenticide Act, as amended by this Act, and as otherwise
provided by this section, the amendments made by this Act shall take
effect at the close of the date of the enactment of this Act, provided if
regulations are necessary for the implementation of any provision that
becomes effective on the date of enactment, such regulations shall be
promulgated and shall become effective within 90 days from the date of
enactment of this Act.
(b) The provisions of the Federal Insecticide, Fungicide, and Roden-
ticide Act and the regulations thereunder as such existed prior to the
enactment of this Act shall remain in effect until superseded by the
amendments made by this Act and regulations thereunder: Provided,
That all provisions made by these amendments and all regulations
thereunder shall be effective within four years after the enactment of
this Act.
(c)(l) Two years after the enactment of this Act the Administrator
shall have promulgated regulations providing for the registration and
classification of'pesticides under the provisions of this Act and thereafter
shall register all new applications under such provisions.
[p. 28]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2165
(2) After two years but within jour years after the enactment of this
Act the Administrator shall register and reclassify pesticides registered
under the provisions of the Federal Insecticide, Fungicide, and Rodenticide
Act prior to the effective date of the regulations promulgated under
subsection (c)(l).
(3) Any requirements that a pesticide be registered for use only by a
certified applicator shall not be effective until four years from the date of
enactment of this Act.
(4) A period of four years from date of enactment shall be provided
for certification of applicators.
(A) One year after the enactment of this Act the Administrator
shall have prescribed the standards for the certification of applicators.
(B) Within three years after the enactment of this Act each State
desiring to certify applicators shall submit a State plan to the
Administrator for the purpose provided by section 4(b).
(C) As promptly as possible but in no event more than one year
after submission of a State plan, the Administrator shall approve
the State plan or disapprove it and indicate the reasons for dis-
approval. Consideration of plans resubmitted by States shall be
expedited.
(5) One year after the enactment of this Act the Administrator shall
have promulgated and shall make effective regulations relating to the
registration of establishments, permits for experimental use, and the
keeping of books and records under the provisions of this Act.
(d) No person shall be subject to any criminal or civil penalty im-
posed by the Federal Insecticide, Fungicide, and Rodenticide Act, as
amended by this Act, for any act (or failure to act) occurring before
the expiration of 60 days after the Administrator has published effective
regulations in the Federal Register and taken such other action as may be
necessary to permit compliance with the provisions under which the penalty
is to be imposed.
(e) For purposes of determining any criminal or civil penalty or lia-
bility to any third person in respect of any act or omission occurring
before the expiration of the periods referred to in this section, the Federal
Insecticide, Fungicide, and Rodenticide Act shall be treated as continuing
in effect as "'/ this Act had not been enacted.
And the Senate agree to the same.
W. R. POAGE,
W. M. ABBITT,
BERNIE SISK,
JOHN G. Dow,
PAGE BELCHER,
GEO. A. GOODIING,
JOHN KYL,
Managers on the Part of the House.
HERMAN E. TALMADGE,
JAMES B. ALLEN,
P. A. HART,
FRANK E. Moss,
JACK MILLER,
ROBERT DOLE,
L. P. WEICKER, Jr.,
Managers on the Part of the Senate.
[p. 29]
-------
2166 LEGAL COMPILATION — SUPPLEMENT I
JOINT EXPLANATOKY STATEMENT OF
THE COMMITTEE OF CONFERENCE
The managers on the part of the House and the Senate at the
conference on the disagreeing votes of the two Houses on the amend-
ment of the Senate to the bill (H.R. 10729) to amend the Federal
Insecticide, Fungicide, and Rodenticide Act, and for other purposes,
submit the following joint statement to the House and the Senate" in
explanation of the effect of the action agreed upon by the managers
and recommended in the accompanying conference report.
The Senate amendment struck all after the enacting clause of H.R.
10729. There were over 50 points of difference between the two ver-
sions' and these differences were resolved in the conference substitute
which makes the following changes in the House bill :
(1) It changes section 1 of FIFRA to conform the table of con-
tents to the amended text.
(2) It changes section 2(c) to indent the numbered paragraphs.
(3) It deletes "pesticide" from "certified pesticide applicator" in
section 2(e) and elsewhere (and similar titles) to avoid confusion with
certified public accountants.
(4) It permits an employee to apply pesticides on his employer's
land as a private applicator (section 2(e)(2)).
(5) It gives EPA discretion as to the necessity for the physical
presence of a certified applicator (section 2(e)(4)).
(6) It gives the Administrator discretion as to which provisions of
section 2(q)(l) [definition of misbranded] or section 7 [registration of
establishments] shall be applicable to any class of device (sections
2(h), 2(q)(l), and 25(c)(4)).
(7) It clarifies the definition of the term "device" in section 2(h) by
not including equipment used for the application of pesticides when
sold separately therefrom.
(8) It changes the registration criteria from "substantial" to
"unreasonable" adverse effects on the environment and changes the
definition slightly, without making ,any change in substance. This
change from the House language is a matter of clarification only.
There is absolutely no difference in substance in this respect between
the conference substitute and the House bill or the Senate amendment
(sections 2(x) and 2(bb) and elsewhere throughout the bill).
(9) It defines "imminent hazard" to include a situation involving
unreasonable hazard to survival of endangered species (section 2(1)).
(10) It defines "ingredient statement" to require all pesticides to
show the name and percentage of each active ingredient and the total
percentage of inert ingredients (section 2(n)).
(11) It requires the establishment registration number to be shown
on the label [rather than on accompanying labeling] (section
(12) It deletes the Senate provision which would have classified a
pesticide as misbranded if "when used in accordance with the require-
[p. 30]
-------
PESTICIDES — STATUTES AND LEGISLATIVE HISTORY 2167
ments of the Act or commonly recognized practice" it causes un-
reasonable adverse effects on the environment and amends provisions
dealing with the registration process instead. The conferees deleted
section 2(q)(l)(H) of the Senate amendment, which defined a pesti-
cide as "misbranded" if the product, when used in accordance with
requirements imposed under the Act or with "commonly recognized
practice", caused unreasonable adverse effects on the environment.
The conferees do not believe that a manufacturer should be subjected
to criminal penalties for a "misbranding" which is beyond his control.
The conference substitute shifts this language to section 3 and sec-
tion 6. Thus, although no criminal penalties are applicable, the Ad-
ministrator will have the authority to deny registration or cancel
where there is a widespread and commonly recognized practice of
using a pesticide which generally causes unreasonable adverse effects
on the environment.
(13) It excludes non-toxic, vitamin-hormone products not intended
for pest destruction from the definition of "plant regulator" (section
2(v)).
(14) It defines "establishment" as a place where pesticides or de-
vices are produced or held for distribution or sale. This provision is
designed to make it clear that a farmer who mixed two or more
pesticides in his spreader or sprayer would not be required to register
as an establishment (section 2(dd)).
(15) It provides for mandatory licensing of test data. The conferees
concluded that the Administrator is in the best position to determine
the proper amount of reasonable compensation for producing the test
data that should be accorded the originator of such data. It was con-
sequently concluded that an appeal of such determination by the
originator of such data to the District Court should not result in a
lowering of the Administrator's determination. It was also concluded
that the pendency of such proceeding before the Administrator or the
Court should not stay or delay use of such data (section 3(c)(l)(D)).
(16) It keeps the prohibition against making lack of essentiality
a criterion for registration as provided in the House bill and adds
the Senate clarifying provision which states that "Where two pes-
ticides meet the requirements of this paragraph, one should not be
registered in preference to the other," thus reflecting the conferees'
intent that no difference between these provisions exists. (Section
.
(17) It gives the Administrator discretion to give an applicant
more than thirty days to make corrections (section 3(c)(6)).
(18) It permits "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 (sections 3(c)(6), 3(d) (2), 6(a)(l),_ and 6(c)(4)).
(19) It authorizes the Administrator to require pesticide packaging
and labeling for restricted use to be clearly distinguishable from
packaging and labeling for general use (section 3(d)(l)(A)).
(20) It makes restricted classification depend in part on the hazards
involved in the use of a pesticide in accordance with "widespread and
commonly recognized practice" (section 3(d)(l) (B) and (C)).
(21) It subjects restricted use regulations to judicial review (section
).
[p. 31]
-------
2168 LEGAL COMPILATION—SUPPLEMENT I
(22) It specifically subjects a change in classification, to judicial
review (section 3(d)(2)).
(23) It makes registration prima facie evidence of compliance as
long as no cancellation proceedings are in effect (section 3(f)(2)).
(24) It makes clear that EPA can withdraw its approval of a
State certification plan (section 4 (a) and (b)).
(25) It allows the Administrator to permit States to issue experi-
mental use permits (section 5(f)).
(26) It allows the Administrator to permit continued sale or use of
a pesticide whose registration is cancelled where not inconsistent with
the purposes of the Act (sections 6(a)(l), 12(a)(l)(A), and 12(a)(2)
(K)). Additional authority is provided in section 15(b)(2).
(27) It preserves cancellation criteria in existing law and permits
the Administrator to initiate cancellation proceedings either by can-
cellation notice or hearing notice. Procedures for hearings and other
matters would be in accord with chapter 5 of title 5 of the United
States Code (formerly the Administrative Procedure Act) except as
otherwise specifically provided (section 6(b)).
(28) It provides for initiation of change in classification proceedings
as an alternative to cancellation proceedings when registration is
suspended (section 6(c)(l)).
(29) It provides for hearings on suspensions except in emergency
situations (section 6(c)).
(30) It provides for judicial review for suspensions [as generally in
other cases] in the district court where there has been no hearing, in
the court of appeals where there has been a hearing. The House bill did
not provide for an administrative hearing on suspension and therefore
provided for judicial review only in the district court. Under the con-
ference substitute a court st&y of a suspension order would be effective
until final decision with respect to cancellation or change in classifica-
tion (section 6(c)).
(31) It provides for the submission, but only with concurrence of
the hearing examiner, of scientific questions at any time prior to the
hearing record being closed (section 6(d)).
(32) It specifically prohibits any member of a scientific advisory
committee from having a financial or other conflict of interest with
respect to any matter considered by the committee (section 6(d)).
(33) It provides for entry by EPA of any place at reasonable times
where pesticides or devices are held for distribution or sale [as well
as manufacturing establishments]. Such entry may take place only
for the purpose of inspection and obtaining samples (section 9(a)).
(34) It describes an illegal pesticide or device as one "which is
adulterated, misbranded, not registered [in the case of a pesticide], or
otherwise in violation of this Act" (section 9(b)(2)).
(35) It specifically provides for certification of facts to the Attorney
General with respect to institution of proceedings for civil penalties
(section 9(c)).
(36) It provides for judicial review of the Administrator's decision
to release information which the applicant or registrant believes to be
protected from disclosure (section 10 (d)).
(37) It prohibits tests on human beings without adequately inform-
ing them and obtaining their voluntary participation (section 12 (a)
[p. 32]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2169
(38) It clarifies provisions regarding both civil and criminal penalties
for wrongdoers (sections 14 (a) (2) and 14 (b) (2)).
(39) It includes a provision for indemnities, except in the case of
a manufacturer who (i) had knowledge of facts which, in themselves,
would have shown that a pesticide did not meet the requirements of
section 3 (c) (5) for registration, and (ii) continued thereafter to produce
a pesticide without giving timely notice of such facts to the Adminis-
trator (section 15).
(40) It provides judicial review of any order following a public
hearing for "any person who will be adversely affected by such order
and who had been a party to the proceedings." It is the intent of the
conferees that anyone who intervenes in a public hearing under this
Act shall be considered a party for purposes of this provision. Provision
is made for publication of timely notice in the Federal Register of all
public hearings under this Act. The conferees intend the words
"adversely affected" to have the same meaning that they have under
5 U.S.C. 702. (Section 16).
(41) It provides for notice to foreign governments whenever a
registration or suspension becomes effective or whenever a registration,
cancellation, or suspension ceases to be effective. It should be noted
that this provision provides for notification to "the governments of
other countries". This would not necessarily mean all other countries,
but it is expected that notification would be provided to all countries
which desired such notification, or where some useful purpose would
be served thereby (section 17(b)).
(42) It permits the Administrator under emergency conditions to
exempt Federal or State agencies (section 18).
(43) It requires the Administrator to solicit the views of the Secre-
tary of Agriculture before publishing regulations (section 21 (a)).
(44) It authorizes the Administrator to utilize, in cooperation with
the Secretary of Agriculture, the Cooperative State Extension
Services in providing information to farmers (section 23(c)).
(45) It makes it clear that a State may provide registration to meet
special local needs, - subject to disapproval by the Administrator
(section 24).
(46) It extends the appropriation authority for the Act to fiscal
year 1975, but retains the "open-end" authorization, in the House
bill. The conferees have deleted the ceilings proposed in the Senate
amendment, not in an effort to obtain greater appropriations but
rather to reflect the level of appropriations estimated by EPA to
be necessary to carry out the Act (section 27).
(47) It makes penalties effective only after the Administrator has
taken such action as may be necessary to permit compliance [as well
as having issued regulations] (section 4(d)). The conference substitute
adopts the provision of the Senate amendment in section 4(d) of
this bill which would make penalties effective only after the Adminis-
trator had taken such action as might be necessary to permit com-
pliance (as well as having issued regulations). For example, failure
to have a plant registration number on the label would not be subject
to penalty until sixty days after the regulations had been published
and the Administrator had issued the registration numbers on timely
applications. Another example would be that of extension of the Act
to intrastate commerce. Section 4(c)(l) of this bill gives the Adminis-
trator up to two years to promulgate regulations providing for regis-
[p. 33]
-------
2170 LEGAL COMPILATION—SUPPLEMENT I
tratipn of pesticides under the provisions of H.R. 10729. This
provision of section 4(d) makes it clear that state registered pesticides
moving only in intrastate commerce would be provided an opportunity
to register under the federal law before their distribution would be
prohibited.
(48) It make numerous technical and clerical changes.
In addition, the conferees have deleted several substantive provi-
sions included in the Senate amendment as follows:
(1) Language which would have specifically required the Admin-
istrator to request all test data not in his possession that he needs to
make his decision on registration.
(2) Provisions calling for more liberal disclosure policies with
respect to trade secrets and other confidential information.
(3) Alternate language concerning the requirement for making data
available to the public.
(4) A prohibition against the exportation of pesticides which would
result in unreasonable adverse effects on the environment of the United
States.
(5) A provision for quality control screening of imported agri-
cultural commodities for pesticide residues.
(6) Authority for certain types of citizen suits against the
Administrator.
(7) Language which would have prohibited the Environmental
Protection Agency from charging fees, other than reasonable registra-
tion fees, in connection with any activity under this Act. The con-
ference substitute omits this provision, and it is the intention of the
conferees that no fees would be charged for registration or any other
activity under the Act.
W. K. POAGE,
W. M. ABBITT,
BEBNIE SISK,
JOHN G. Dow,
PAGE BELCHER,
GEO. A. GOODLING,
JOHN KYL,
Managers on the Part of the House.
HERMAN E. TALMADGE,
JAMES B. ALLEN,
P. A. HART,
FRANK E. Moss,
JACK MILLER,
ROBERT DOLE,
L. P. WEICKER, Jr.,
Managers on the Part of the Senate.
[p. 34]
-------
-------
2172 LEGAL COMPILATION—SUPPLEMENT I
l.lk(5) CONGRESSIONAL RECORD
l.lk(5)(a) VOL. 117 (1971), Nov. 8, 9: Considered and passed
House, pp. H10674-H10680, H10726-H10774
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LEGAL COMPILATION—SUPPLEMENT I
(Mr. POAGE) and other members of the
committee also are, for pointing out that
this is truly a balanced bill It Is not
weighted in any way in favor of the
manufacturing chemical companies.
I am one of the ranking members of
the committee, and I honestly do not
recall ever even being contacted by a
chemical company. I do not know how
any committee could possibly have
worked more fairly and impartially in
producing the results we did.
Mr. Chairman, I have no further re-
quests for time, and I yield back the re-
mainder of my time.
Mr. POAGE. Mr. Chairman, I have no
further requests for time, and I yield
back the remainder of my time.
The CHAIRMAN. The Clerk will read.
The Clerk read as follows:
H.R. 10729
Be it enacted by the Senate and House of
Representatvies of the United States of
America in Congress assembled. That this
Act may be cited as the "Federal Environ-
mental Pesticide Control Act of 1971".
Mr. POAGE. Mr. Chairman, I move
that the Committee do now rise.
The motion was agreed to.
Accordingly the Committee rose, and
the Speaker pro tempore (Mr. BOGGS)
having assumed the chair, Mr. HUNGATE,
Chairman of the Committee of the Whole
House on the State of the Union, reported
that that Committee, having had under
consideration the bill (H.R. 10729) to
amend the Federal Insecticde, Fungicide,
and Rodenticide Act, and for other pur-
poses, had come to no resolution thereon.
[p. H10680]
FEDERAL ENVIRONMENTAL PESTI-
CIDE CONTROL ACT OF 1971
Mr. POAGE. Mr. Speaker, I move that
the House resolve itself into the Com-
mittee of the Whole House on the State
of the Union for the further considera-
tion of the bill (H.R. 10729) to amend the
Federal Insecticide, Fungicide, and Ro-
denticide Act, and for other purposes.
- The SPEAKER. The question is on the
motion offered by the gentleman from
Texas.
The motion was agreed to.
IN THE COMMITTEE OP THE WHOLE
Accordingly, the House resolved. itself
into th'e Committee of the Whole House
on the State of the Union for the further
consideration of the bill H.R. 10729, with
Mr. HUNGATE in the chair.
The Clerk read the title of the bill.
The CHAIRMAN. When the Commit-
tee rose on yesterday, the Clerk had read
through the first section, ending on page
1, line 4 of the bill.
The Clerk will read.
The Clerk read as follows:
AMENDMENTS TO FEDEKAL INSECTICIDE,
FUNGICIDE, AND RODENTICIDE ACT
SECTION 2. The Federal Insecticide, Fungi-
cide, and Rodenticide Act (7 U.S.C. 135 et
•seq.) Is amended to read as follows:
"SEC. 1. SHORT TITLE AND TABLE OP CON-
TENTS.
"(a) SHORT TITLE.—This Act may be cited
as the 'Federal Insecticide, Fungicide, and
Rodenticlde Act'.
"(b) TABLE or CONTENTS.—
"SECTION 1. Short title and table ol con-
tents.
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2185
"(a) Short title.
" (b) Table of contents.
"Sic. 2. Definitions.
"(a) Active Ingredient.
"(b) Administrator.
"(c) Adulterated.
"(d) Animal.
" (e) Certified pesticide applicator, etc.
" (1) Certified pesticide applicator.
" (2) Private pesticide applicator.
"(3) Commercial pesticide applicator.
"(f) Defoliant.
"(g) Desiccant.
"(h) Device.
" (1) District court.
"(J) Environment.
"(Is.) Fungus.
"(I) Imminent hazard.
"(m) Inert ingredient.
"(n) Ingredient statement.
"(o) Insect.
"(p) Label and labeling.
"(1) Label.
"(2) Labeling.
"(q) Mlsbranded,
"(r) Nematode.
"(s) Person.
"(t) Pest.
"(u) Pesticide.
"(v) Plant regulator.
" (w) Producer and produce.
" (x) Protect health and the environment.
"(y) Registrant.
"(z) Registration.
"(aa) State.
"(bb) Substantial adverse effects on the
environment.
"(cc) Weed.
"Sac. 3. Registration of pesticides.
"(a) Requirement.
"(b) Exemptions.
"(c) Procedure for registration,
" (1) Statement required.
" (2) Data in support of registration.
"(3) Time for acting with respect to appli-
cation.
"(4) Notice of application.
" (5) Ap'pro val of registration.
"(6) Denial of registration.
" (d) Classification of pesticides.
"(1) Classification for general use, re-
stricted use, or both.
"(2) Change In classification.
"(e) Products with same formulation and
claims.
"(f) Miscellaneous.
" (1) Effect of change of labeling or formu-
lation.
"(2) Registration not a defense.
"(3) Authority to consult other Federal
agencies.
"Sec. 4. Use of restricted use pesticide; cer-
tified applicators.
"(a) Certification procedure.
"(1) Federal certification.
"(2) State certification.
"(b) State plans.
"Sec. 5. Experimental use permits.
"(a) Issuance.
" (b) Temporary tolerance level.
"(e) Use under permit.
"(d) Studies.
"(e) Revocation.
"Sec. 6. Administrative review; suspension,
" (a) Cancellation after five years.
"(1) Procedure.
"(2) Information.
"(b) Cancellation and change in classifica-
tion.
"(c) Suspension.
"(1) Order.
"(2) Duration of order.
"(3) Judicial review.
" (d) Public hearings and scientific review.
"(e) Judicial review.
"Sec. 7. Registration of establishments.
"(a) Requirement.
"(b) Registration.
"(c) Information required.
"(d) Confidential records and information.
"Sec. 8. Books and records.
"(a) Requirement.
"(to) Inspection.
"Sec. 9. Inspection of establishments, etc.
"(a) In general.
"(b) Warrants.
"(c) Enforcement.
" (1) Certification of facts to Attorney Gen-
eral.
"(2) Notice not required,
"(3) Warning notices.
"Sec. 10. Protection of trade secrets, «tc.
"(a) In general.
"(b) Disclosure.
[p. H10726]
-------
2186
LEGAL COMPILATION—SUPPLEMENT I
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY
2251
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2253
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2257
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2258
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2260
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2261
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2262
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2264
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2265
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY
2267
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY
2269
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PESTICIDES STATUTES AND LEGISLATIVE HISTORY
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2273
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2276
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2277
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2278
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2280
LEGAL COMPILATION—SUPPLEMENT I
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Nichols
Nix
O'Konski
O'Neill
Passman
Patten
Pepper
Perkins
Pettis
Peyser
Pickle
Pike
Pimie
Poage
Poff
Powell
Preyer, N.C.
Price, 111.
Abourezk
Abzug
Adams
Anderson,
Calif. -
Ashley
Aspin
BadfiTo
Begich
Biaggi
Bingham
Boland
Boiling
Brademas
Brinkley
Burke, Mass.
Burton
Carey, N.Y.
Chisholm
Clay
Conte
Gorman
Culver
Danielson
Dellums
Price, Tex.
Pryor, Ark.
Pucinski
Qule
Quillen
Randall
Rhodes
Roberts
Robinson, Va.
Roblson, N.Y.
Rogers
Roncalio
Rooney, N.T.
Rooney, Pa.
Rostenkowskl
Roush
Rousselot
Roy
Ruppe
Ruth
Sandman
Satterfleld
Saylor
Scherle
Schmitz
Schneebeli
Scott
Sebelius
Shipley
Shoup
Shriver
Sikes
Sisk
Skubitz
Slack
Smith, Calif.
Smith, Iowa
Smith, N.Y.
Snyder
Spence
Staggers
Stanton,
James V.
Steed
NATS— 91
Edwards, Calif.
Poley
Ford,
William D.
Fraser
Giaimo
Grasso
Green, Oreg.
Green, Pa.
Gude
Harrington
Hawkins
Hechler, W. Va.
Helstoski
Howard
Karth
Kastenmeier
Koch
McCormack
Mathis, Ga.
Meeds
Melcher
Metcalfe
Mikva
Minish
Steiger, Ariz.
Stelger, Wis.
Stephens
Stratton
Stubblefleld
Sullivan
Symington •
Talcott
Taylor
Teague, Calif.
Terry
Thompson, Ga.
Thomson, Wis.
Thone
Ullman
Vander Jagt
Veysey
Waggonner
Wampler
Ware
Whalen
Whalley
White
Whitehurst
Widnall
Wiggins
Williams
Winn
Wright
Wyatt
Wydler
Wylie
Wyman
Yatron
Young, Fla.
Young, Tex.
Zablocki
Zion
Zwach
O'Hara
Podell
Rangel
Ranck
Rees
Reid, N.Y.
Reuss
Riegle
Rodino
Roe
Rosenthal
Roybal
Runnels
Ryan
St Germain
Sarbanes
Scheuer
Seiberlmg
Steele
Stokes
Thompson, N.J.
Tiernan
Udall
Van Deerlin
Vamk
Denholm Mink Waldie
Dingell Mitchell Wilson,
Donohue Moorhead Charles H.
Dow Morse Wolff
Drlnan Moss Yates
Dulski Nedzi
Eckhardt Obey
NOT VOTING— 51
Alexander Edwards, La. Michel
Arends Ford, Gerald B. Mills, Ark.
Baker Gubser Minshall
Barrett Halpern Patmau
Bevill Hebert Pelly
Blackburn Heckler, Mass. Purcell
Broyhill, N.C. Horton Rallsback
Burke, Pl». Jones, Ala. Schwengel
Clancy Kemp Springer
Clawson, pel Kuykendall Stanton,
Collier Landgrebe J. William
Collins, Tex. Link Stuckey
Conable Lloyd Teague, Tex.
Conyers Long, La. Vigorito
Crane McClory Whitten
Derwinskl McCloskey Wilson, Bob
Diggs McFall
Dowdy McKinney
So the bill was passed.
The Clerk announced the following
pairs :
Mr. Hubert with Mr. Gerald R. Ford.
Mr. Barrett vltb. Mr. Dlggs.
Mr. Vigorito with Mr. Conyers.
Mr. Dowdy with Mr. Baker.
Mr. McFall with Mr. Michel.
Mr. Purcell with Mr. Pelly.
Mr. Wnitten with Mr. Springer.
Mr. Teague of Texas with Mr. Horton.
Mr. Stuckey with Mr. Collins of Texas.
Mr. Jones of Alabama with Mr. Clancy.
Mr. Bevill with Mr. Gubser.
Mr. Alexander with Mr. Railsback.
Mr. Link with Mr. Clawson.
Mr. Mills of Arkansas, with Mr. Arends.
Mr. Pat/man with'Mr. Bob Wilson.
Mrs. Heckler of Massachusetts with Mr.
Minshall.
Mr. Broyhill of North Carolina with Mr.
Lloyd.
Mr. Crane with Mr. Kemp.
Mr. Kuykendall with Mr. McClory.
Mr. McKinney with Mr. J. William Stan.ton.
Mr. Landgrebe with Mr. Blackburn.
Mr. Derwinski with Mr. Halpern.
Mr. McCloskey with Mr. Burke of Florida.
Mr. Collier with Mr. Conable.
Mr. ASHLEY changed his vote from
"yea" to "nay."
The result of the vote was announced
as above recorded.
A motion to reconsider was laid on the
table.
[p. H10774]
-------
PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2281
l.lk(5)(b) Vol. 118 (1972), Sept. 26:
Considered and passed Senate,
amended, pp. S15885-S15900
FEDERAL ENVIRONMENTAL PESTI-
CIDE CONTROL ACT OP 1972
Mr. ROBERT C. BYRD. Mr. President,
I therefore, ask unanimous consent that
the unfinished business be temporarily
laid aside and that the Senate proceed
to the consideration of H.R. 10729, a bill
to amend the Federal Insecticide Act.
[p. S15885]
-------
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2320
LEGAL COMPILATION—SUPPLEMENT I
from Alabama for characterizing the
amendment as excellent.
It was my understanding, in addi-
tion—I have just heard this in the last
few minutes—that the administration
lobbied very heavily against the amend-
ment I offered. I was wondering whether
the distinguished Senator has any knowl-
edge of those activities.
Mr. ALLEN. I have no knowledge of
any such activity.
Mr. TUNNEY. It seems to me that the
sufferers are the American farmers, and
it seems to me a great shame that the
products of Americans farmers should
have to subscribe to a stiffer test than
the products of foreign farmers.
Mr. ALLEN. I say to the Senator from
California that if he will offer this
amendment in the form of, a bill, we will
,see that he gets an early hearing before
the subcommittee on which I serve.
Mr. TUNNEY. I thank the Senator.
The PRESIDING OFFICER. The Sen-
ator from Kansas has 2 yz minutes.
Mr. DOLE. Mr. President, I rise in sup-
port of the conference report.
As one of the conferees, and having
some interest in the bill, I can say, as
the Senator from Michigan said earlier,
that there were a number of difficult is-
sues to be resolved.
There was not full satisfaction on the
part of the Senate conferees with the
indemnity provision. I think many of us
felt that it should have been restricted
to producers and perhaps retailers and
not manufacturers. I believe the ques-
tion essentially became whether we
would have a pesticide bill or break up
in disagreement over one issue. In fact,
that issue finally was resolved.
So when we look at the entire bill and
look at the great work done by the Sena-
tor from Alabama and others who held
very extensive hearings, in my opinion
it is a step forward. If there are some
imperfections, they can be resolved in
the next session of Congress, as can the
amendment referred to by the distin-
guished Senator from California.
Issues were compromised, as is true in
any conference. The issues of citizens'
suits, disclosure of data, and payment
for data were resolved not to our entire
satisfaction; but I believe the question
became, In the minds of the conferees,
Should there be a bill this year? I felt
that in good faith the conferees on the
Senate side felt that this bill would be
much better than no bill at all, even
with some imperfections.
I rise in support of the bill. I think
it is a good effort, and I am happy to
associate with all those in the Commit-
tee on Agriculture and Forestry and the
Committee on Commerce in arriving at
what I believe is a good beginning.
The PRESIDING OFFICER. The ques-
tion is on agreeing to the conference
report.
The conference report was agreed to.
[p. S16981]
l.lk(5)(d) VOL. 118 (1972), Oct. 12: House agreed to conference
report, pp. H9795-H9798
CONFERENCE REPORT ON H.R. 10729,
FEDERAL ENVIRONMENTAL PES-
TICIDE CONTROL ACT
Mr. POAGE. Mr. Speaker, I call up the
conference report on the bill (H.R. 10729)
to amend the Federal Insecticide, Fungi-
cide, and Rodenticide Act, and for other
purposes and ask unanimous consent
that the statement of the managers be
read in lieu of the report.
The Clerk read the title of the bill.
The SPEAKER. Is there objection to
the request of the gentleman from Texas
(Mr. POAGE) ?
Mr. YATES. Mr. Speaker, reserving the
right to object, as I understand the bill,
this is one that contains certain indemni-
fication provisions of not only the manu-
facturers of pesticides but as well for
those using pesticides all the way down
the chain. The provisions may possibly
be more drastic than the provisions for
'indemnification that were contained in
the cyclamate bill that was passed by
the House recently.
Mr. Speaker, I have no will to object
to consideration of the bill. All that I
want to do is alert the House to the fact
that the bill does contain such pro-
vision, and that those of us who oppose
the bill want to be given an opportunity
to have a vote on the bill. If that be so,
I will withdraw my reservation of ob-
jection.
The SPEAKER. Of course, the House
has control always over the form of the
vote and whether a vote will be taken.
Mr. YATES. There will be a vote
taken?
The SPEAKER. There will be a vote.
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY
2321
Mr. YATES. All right. I withdraw my
reservation of objection.
Mr. SEIBERLING. Mr. Speaker, re-
serving the right to object, I would just
like to observe that this bill is following
a precedent that we, unfortunately, es-
tablished in connection with the cycla-
mate bill of indemnifying manufactur-
ers who put out substances which are
harmful, if found to be harmful. I sim-
ply want to record the fact that this
bill has a very undesirable aspect.
Mr. YATES. Mr. Speaker, will the gen-
tleman yield?
Mr. SEIBERLING. I yield to the gen-
tleman from Illinois.
Mr. YATES. The bill goes further than
that. It not only presupposes to indem-
nify the manufacturers; it also presup-
poses to indemnify those who have
bought the pesticides and who have
stored them, intending to use them.
intending to use them. They, too, may
be indemnified under the terms of this
bill.
Mr. SEIBERLING. Mr. Speaker, I
withdraw my reservation.
The SPEAKER. Is there objection to
the request of the, gentleman from
Texas?
There was no objection.
The Clerk read the statement.
(For conference report and statement,
see proceedings of the House of October
5, 1972.)
Mr. POAGE (during the reading). Mr.
Speaker, I ask unanimous consent that
the statement be considered as read.
The SPEAKER. Is there objection to
the request of the gentleman from
Texas?
There was no objection.
Mr. POAGE. Mr. Speaker, this confer-
ence report does not involve any new
principles that were not in the House
bill. In fact, the provisions that are put
in here are provisions limiting the scope
of the House bill. We did come to a real
compromise. The conferees on the part
of both Houses were in unanimous agree-
ment, and every conferee signed the re-
port, and every viewpoint was repre-
sented.
Among the conferees of the House are
W. R. POAGE, W. M. ABBITT, BERNIE SISK,
JOHN Dow—who did not agree with some
of us when the bill was before the
House—PACE BELCHER, GEORGE GO.ODLING,
and JOHN KYL.
The Senate position involved such a
difference of viewpoint as those held by
Senator HART, Senator MILLER, Senator
DOLE, and Senator ALLEN.
There was a very decided difference
of opinion among the conferees. We did
seriously work out those differences.
Those who have expressed some fear that
the conferees were too liberal with in-
demnities should remember that some of
those who signed the report'were most
active in the effort on the floor of the
House to refuse any indemnity. We did
accept compromise.
The provision as to indemnity does not
give anyone who holds any of these pes-
ticides which may have been prohibited
the right to get paid for it if it was pro-
duced after registration is withdrawn.
It only gives that right to those who hold
pesticides which were produced under a
valid license from the United States, and
who had not been notified by the En-
vironmental Agency that that pesticide
might be dangerous.
We do provide that in the event of any
feeling on the part of the Environmental
Agency that a compound might be dan-
gerous they might notify the manufac-
turer that they were going to hold a
hearing on it, and from that moment on,
the manufacturer could not receive any
indemnity for what he produced.
We think it is a fair and equitable pro-
vision. We believe we are presenting an
equitable compromise in this report. We
have represented all viewpoints. We hope
the House will approve the conference
report.
Mr. Speaker, I yield to the gentleman
from Iowa.
(Mr. KYL asked and was given permis-
sion to revise and extend his remarks.)
Mr. KYL. Mr. Speaker, I include with
mv remarks a section-by-section synopsis
of the major provisions of the conference
pesticide bill prepared by the Environ-
mental Protection Agency:
SECTION-BY-SECTION SYNOPSIS OF THE MA-
JOR PROVISIONS OF THE CONFERENCE PES-
TICIDE BH.L
Section 1 of the bill states Its purpose and
title.
Section 2 of the bill sets forth the amend-
ments to the Federal Insecticide, Fungicide.
and Rodentlclde Act, as amended:
AMENDMENTS TO FITBA
Section 1. Short Title and Table of Con-
tents.
Section 2. Definitions.
Section 3. Registration of Pesticides.
1. With certain exceptions, any pesticide
In U.S. trade must be registered with the
Administrator.
2. In order to obtain registration, a pesti-
cide producer must submit an application
Identifying himself and the pesticide, Show-
ing the labeling, and stating claims to be
[p. H9795]
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2322
LEGAL COMPILATION SUPPLEMENT I
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2323
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PESTICIDES—STATUTES AND LEGISLATIVE HISTORY 2325
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U.S. Environmental Protection Agency,
Rev ion V. library ^->
230 South Dearborn Street y
Chicago, lllir.ois 60604 S ,. .r«:x3.
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