office pf
pesticide
programs
  STATUS  REPORT

          AND

  ACTION  GUIDE
                  CRAFT
           ctecember 31 1976

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NOTE TO THE READER:
     The attached document was  intended  for  distribution  for
December 1976.  Late  in that month,  two  developments  occurred
which may prove to  impact on program operations  in  ways  not  fore-
seen when the paper was originally  prepared.   First,  the  Senate
Subcommittee on Administrative  Practice  and  Procedure of  the
Committee on the Judiciary issued a  draft  report  critical  of the
depth of data review  undertaken by  the Agency prior to reregistration,
The report now before you has been  rewritten since  its previous draft
to reflect the Agency's commitment  to the  Senate  committee regarding
data review.  Secondly, a preliminary injunction  recently  issued
by a United States  District Court has required the  Agency  to consider
basic modifications to  its reregistration  data requirements.

     The Agency is  now  reviewing resources,  adjusting program plans,
and preparing to go before Congress  for  the  FIFRA reauthorization
hearings with these new developments in  mind.  The  public  will be
kept informed throughout  the next  few months as  events unfold
through prepared statements, reports, and  Federal Register notices.

     Since a new Administrator  will  soon assume  leadership of the
Agency, this document may be a  logical  starting point to discussion
of the operation of Pesticide  Programs  in  the future.  We  would,
therefore, welcome  your comments and suggestions.

     Although this  is a draft  document  and the new Administrator
has not had  an opportunity  to  review it, the Office of Pesticide
Programs  intends to begin implementing the policy decisions and
changes discussed  herein  except in those instances where  they
may conflict with  existing  formal policy statements or legal
constraints.

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                           PESTICIDE PROGRAMS
                  A STATUS REPORT AND GUIDE FOR ACTION
                             DECEMBER 1976
                           TABLE OF CONTENTS

I  BACKGROUND

  A.  Purpose 	 p. 1
  B.  Program Objectives 	 p. 2
  C.  Historical Perspective  	 p. 3
  D.  Accomplishments  	 p. 4
  E.  Problems  	 p. 6

II.   PREMARKET REVIEW
  A.  Background 	 p. 6
  B.  Priorities	 p. 8
  C.  Data Requirements
       1.  Background  	 p. 8
       2.  Problems	 p. 10
           a)   Section 3 modifications  	 p. 10
           b)   Minimum standards  	 p. 10
           c)   Nonconforming  tests  	 p. 11
           d)   Conveying data requirements  	 p. 12

  D.  Data Availability, Validity,  and  Applicability
       1.  Background  	 p. 13
       2.  Problems  	 p. 17
           a)   Cataloging  	 p. 17
           b)   Reliability  	 p. 17
           c)   Depth of review 	 p. 19
           d)   Compensation/trade  secrets  	 p. 21

   E.  Transition Impacts  	 p. 24
       1.  Background  	 p. 24
       2.  Problems  	 p. 24
           a)   Registration 	 p. 24
           b)   Status  of Guidance  Packages  	 p.  26
           c)   Labeling  	 p. 27
           d)   Use Inconsistent  with  Labeling 	 p.  29
           e)   RPAR 	 p.  30
           f)   Petroleum Distillates  	 p.  33
           g)   Minor Uses  	  p.  34
           h)   Intrastate  Pesticides  	 p.  36

   F.  Tolerances  	  p.  37

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                              -2-

III.   USE REGULATION

  A.   Background 	 p.  38
  B.   Classification 	 p.  39
  C.   Certification	 p.  40
  D.   Problems  	 p.  41

     1.  Restricted Use List  	 p.  41
     2.  Contingency plans  	 p.  42
     3.  States without plans 10/77	 p.  43
     4.  Federal applicators  	 p.  43
     5.  Indian reservations	 p.  44
     6.  Quality assurance  	 p.  44
     7.  Costs  	 p.  45

IV.  ORGANIZATION  	 p.  45

 V.  ATTACHMENTS

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                       PESTICIDE PROGRAMS
             A  STATUS  REPORT  AND GUIDE FOR ACTION
                          DECEMBER 1976
                           •
I.  BACKGROUND   •

A.  Purpose.  The  deadline for full implementation of the  1972 amendments
to  the  Federal  Insecticide,  Fungicide, and Rodenticide Act (FIFRA)
was originally. set for October 1976, later extended until  October  1977.
Since the  deadline is  approximately one year away, this  is an  annro-
priate.  tjime -to  review what has been accomplished and what  remains  in
be  done.   Significant  progress has been made, but  frustrating  delavp
have  also  occurred.   There is some confusion about just  where  we
stand -in- implementing  the Act, particularly in the effort  to reregister
'ami classify, all the pesticides presently marketed in this country.

      These have been active and controversial years.  Although  it
may appear that progress has been tortuously slow, much  forward
movement has  been  made, despite unforeseen delays  due to  lengthv
public  debate, on rulemaking, an in-depth Congressional oversieht
'pe'riod  during,which  the future of some major program elements  were
tih'ce'rtain, and  some  unexpected discoveries affecting our  fundamental
assumptions  for reregistration purposes.

      Pesticide  regulation affects many  interests:  the Congress,
the regulate^ industry, farm groups,  professional  applicators,
ot'hei: pesticide users, our State  and  Federal colleagues,  environ-
mental  groups,  consumer groups, acaderaia,  and the  general  public.
All these, groups  are  the  audience  for this  paper  and we  thus  include
basic background  for  those less  familiar with the  Agency's develop-
ment  of pe,st,i,c'idei .regulatory  policy,  while  also  providing specific
discussions of, problem1 areas  and  solutions.  This  paper  is intended
to' provide a description  of our goals,  an  historical  per-sufect ive
of pesticide regulation,  a status  report  on  some  of  the  major  areas
of 'difficulty,  and  our proposed, solutions  to the  problems.

      We dan"ri6t provide all the  answers  now.  Where we  cannot,
we can nevertheless propose  pathways  to  decisions. We  need your
constructive thoughts  on  these  issues.  The  challenges  posed  by
 this' transit ion time  between  the  "old"  and  "new"  FIFRA  must  be
met wil.h patience and  careful  thought,  and  above  all  with a  co-
operat'ive spirit  between  the  regulators,  the  regulated,  and the
many  interests'-affected by EPA's,  decision  making.

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                              -2-

     This document  is not a replacement  for  the  long-range  Pesticides
Strategy paper.  The Strategy, now being  developed,  will  address  in
detail the Agency's objectives and plans  for the  entire  regulatory
program through 1981.  This paper addresses  immediate  concerns  and
issues.  It is a discussion of short-term problems  (although some
of the solutions may be extended over a  period  of time)  to  deal
with the major current dilemmas which need prompt attention.

ฎ*  Program Objectives.  The primary mandate of  the Office  of Pesticide
Programs is to protect human health and  the  environment  from unreason-
able adverse effects of pesticide use. Pesticides are  deliberately
introduced into the environment to achieve a distinct  benefit.
Decisions on pesticides must thus consider not  only the  possible
adverse effects from pesticide use, but  also the  potential  effects
on food production  and health of the absence of  these  pest  control
tools. It would not serve this nation to  restrict the  use of pesticides
to the point that an adequate supply of  food and  fiber could not
be produced or protected, or that disease vectors or structural
pests could not be  adequately controlled.  Nor would it be a service
to permit the  continued use of pesticides to the  detriment  of the
health of our  citizens. The heart of the  regulatory objective,
then,  is to assess  and determine  the acceptability of  risks as
balanced against the benefits.

     Social policy  in  this  context requires  that  the benefits,
or social utility,  afforded by a  pesticide be weighed  aeainst its
undesirable consequences.   The standard  guiding all pesticide regulatory
decisions is "unreasonable  adverse effects on the environment."  This
is defined by  law as "... 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."  Risk/benefit decision-making
is not easy; there  are no magic  formulas  for achieving the  absolutely
right  answer.  Neither  side of the equation   is known with certainty,
since  each involves  some  non-quantifiable inputs.  The key  question
is simply, "What  is an  acceptable  level  of risk?" That determination
is not based on science,  economics,  or  social factors  alone; all
components and  their  interrelationships  must be considered  in the
regulatory decision-making  process.   It  is,   in short,  decision-
making which most typically involves  extrapolation beyond the strict
bounds of scientific measurement:   the  very   subjective area of
trans-science.

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                              -3-

     Thus, in fulfilling our objective  to  protect  the  public  from
unreasonable adverse effects of pesticide  use, we  turn  to  three
crucial elements:   1)  obtaining the most  up-to-date,  complete,
and accurate information available, 2)   conducting  a  thorough
assessment of risks and benefits and 3)  making decisions  in  the
open, with as much  public  participation  as  possible.

C.  Historical Perspective.  EPA assumed pesticide  regulation  responsi-
bilities from the Department of Agriculture and  the Federal  Food
and Drug Administration  in 1970.   All  pesticides Federally registered
before 1972 were subject to  the  1947 FIFRA, an Act  passed  when the
great benefits of pesticide  use were  first being recognized.   It took
many years to realize  that some of these products,  although  efficient
in pest control, could cause subtle long term adverse effects   in
man, wildlife, and  the environment.   In  addition,  overuse  of certain
chemicals was creating a resistance in some pests.

     Congress responded  to the  need for  a more  comprehensive regulatory
scheme with the  passage  of the  Federal Environmental Pesticide Control
Act  to amend FIFRA  in  1972.  The amendments transformed FIFRA  from a label in;
Act  to a  comprehensive regulatory  Act, affecting all aspects of  pesticide
use.  EPA assumed responsibility  for  regulating  pesticides from  the early
experimental stages,  through premarket data review, to use in  the
environment.  The Agency was assigned  responsibility to monitor
for  long  term effects  and  to respond  to accumulated scientific
knowledge.  And  we  were  to get  underway with two giant tasks:   the
registration, reregistration,  and  classification of all pesticides
marketed  in the  country;  and the  establishment  with the States of
programs  to train  and  certify  applicators who would need  to use
restricted  pesticide  products.

     Several  important factors  were at work at  the time the 1972
amended  FIFRA was  passed.   They are still of critical  importance:

     o    Rapidly advancing scientific knowledge and public interest
          which  escalates the serious  question of long-term effects
          — cancer, mutagenesis,  birth defects, and nervous system,
            blood  and  organ dysfunctions.

     o    Advancing  monitoring  technology  that increased our
          ability to detect pesticides first  in  parts  per
          million,  then parts per billion,  and now  parts
          per  trillion, beyond  our ability  to estimate  significance;

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     o   Tliซ' results of monitoring studies usinp.  such  technology
         showing that, pesticide residues are  found  in  soil, water.
         air, and can accumulate in wildlife  and  man;

     o   Increasingly complicated legal issues that  are  slow
         and costly to resolve;

     o   Increasingly complicated economic and political  factors
         that must be considered.

     The Congress further amended the FIFRA  in 1975  after  a lengthy
oversight process.  The latest amendments are  intended to  ensure
that all agricultural and scientific ramifications  of  proposed
rulemaking or cancellation actions are explored.  They require EPA
to submit copies of proposed regulations or  notices  of intent  to
cancel to the Secretary of USDA and to a Scientific  Advisory  Panel
60 days before public notification.  Final notices  and rulemaking
are to be submitted 30 days prior to public  notification.   EPA
must also submit to USDA an assessment of the agricultural impact
of proposed cancellation actions.  The Senate  and House Agricultural
Committees are also  informed in advance of our significant actions.

D.  Accomplishments.  Despite  the complexities,  progress has  been slow
but steady.  Regulations began appearing  in  1973 and most major
rulemaking followed over the subsequent three years:

     July 1973:  Section 6, Administrative Review (cancellation
         and suspension procedures);

     November 1973:   Section 7,  Registration of  Establishments;

     December 1973:   Section 18, Emergency Exemptions;

     May 1974:   Section  19, Disposal  and  Storage;

     May 1974:   Farm Worker Protection Standards;

     July 1974:   Section  14(a) ,  Assessment  of Civil Penalties;

     September  1974:   Section  8, Books  and  Records;

     October  1974:   Section 4, Standards  for Certification of
         Applicators;

     March  1975:   Section 4,  State  Plans  for Certification of
         Applicators;

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                              -5-

    Harch 1975:   Subpart D, Section 6, Reconsideration of Previous
         Cancellation Decisions;

    April 1975:   Section 5, Experimental Use Permits;

    June 1975:   Proposed Registration Guidelines;

    May 1975:  Section 17, Notice to Foreign Governments;

     July 1975:   Section 3, Registration, Reregistration, and
         Classification; and

     September 1975:  Proposed  24(c), Special Local Needs.

     In addition, some significant policy statements have been
issued under  the new Act:   two  papers on the compensation  for
data provisions of the Act, Section 3(c)(l)(D)  (November  1973
and January 1976); the categorization and call-in  scheme  for
reregistration (February 1976); the procedures  for handling
problem chemicals through  the Office of Special  Pesticide Review
(December 1975); the procedures for handling new registrations
identical or  substantially  similar to already registered  products
(May 1976); and five Pesticide  Enforcement  Policy  Statements
regarding how the Agency will enforce "use  inconsistent  with
the label" under Section 12(a)(2)(G):

     #1, less than label dosage — May  1975,

     #2, unnamed structural pests — September  1975,

     #3,  State registered  products — April 1976,

     #4,  preventive  treatments  — July  1976,  and

     #5,  unnamed agricultural  pests —  September 1976.

     #6,  use  and labeling  of  service containers — December 1976.

Twenty-nine Pesticide  Regulation  (PR)  notices  have been issued  to
registrants on a variety of policy  issues.  In  addition,  the Agency
proposed  an EPA-wide policy on  addressing  chemical carcinogens,
including potential  pesticide  carcinogens,  in May of 1976.

     During this  time,  too, we  have  been processing the applications
which  come  in daily.   In the  past 4  years,  we  have issued more
than  145,000  supplemental  registrations;  16,930 amended regis-
trations, and 11,140 new registrations.   More  than 500 experimental
permits,  and  more  than 110 emergency  exemptions have been processed.
In  addition,  great  progress has been made  by joint effort with USDA
Extension Service  (ES),  EPA Regions,  and the States in starting
applicator  certification.   As  of  this  writing,  47 State Plans have
been  submitted  for approval,  and  more  than 225,000 applicators
have gone through  training programs.

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                               -6-

K.  IV obi t'.mn.  Although  wu  are  pleased with  these  accomplishments,
major proj',r/im decisions  must  be made  to  complete  the  task  of  imple-
menting FIKkA.  Many of  our  problems  are caused  by the  dynamics
of the transition  from the  old  law  to the  new law.   Registrants
knew where  they stood under  the old Act. They know where  they will
stand when  the 1972 FIFRA  is  implemented.  But they are  confused
and impatient about their  status during  this important  in-between
period.  Industry, users,  and  environmentalists  alike  are  equally
concerned as we try to sort  out an  avalanche of  complex and new
variables.

     To explain our policies  and problems,  this  paper  will systematically
address two  of the primary  functions  of  the  Office of  Pesticide Programs
in achieving program objectives:  premarket  review of  pesticide products,
and use regulations.

     Part II will  describe  the  foundation of the regulatory process
and will discuss data requirements, the  status of  the  data, the
problems concerning the  data,  ways  to convey requirements  to
registrants  and the public,  registration and reregistration proce-
dures, and  the problems  being experienced during the transition
between the  old and new  Acts.   Part III  will discuss the  use  aspects
of the regulatory  process,  specifically  applicator certification
and training.  Part IV will discuss the  Office of Pesticide Programs
staffing and organization  to carry  out  program functions.

II.  PREMARKET REVIEW

     A.  Background.   Before a pesticide can be registered by  EPA,
the applicant must demonstrate to  the Agency that  the product  will
perform  as  claimed on  the  label,  and  that its use will not cause
unreasonable adverse effects on man or  the environment.  A registration
application,  then, must  be supported  by data on efficacy,  human
safety, chemistry, fish  and wildlife, and environmental effects.

     We  are presently  engaged in  two  simultaneous processes under
the new  statute:

      . registering pesticides not  previously on the market, and

      . reregistering  those products already registered under the
        1947 Act.

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                             -7-

     A system Lo reregister the more than 35,000 products which
arts already Federally registered was developed  in  1973.   Products
will be grouped into "batches"; all products  in a  batch will  be
"called in" for reregistration according to chemical  similarities
in their active ingredients.

     In ta*ing this approach, the Agency is attempting  to minimize
potential confusion during the reregistration  process,  and  to
facilitate the submission of reregistration applications by clarifying
what information is or will be expected for the applicant  to  achieve
full registration.  The  entire onus for submitting a full  and complete
application with supporting data could have been  placed  squarely
on the industry.  The Agency chose  the task sharing approach, however,
which we believed would  be the most equitable  and  orderly  option.

     Applications will be called in through the Guidance  Package,
a document which:

     .  informs  the registrant of  the proposed  classification of
       his product (either general or restricted use),
     .  cites pertinent data already  on  file,
     .  provides label  information, and
     .  specifies any additional data requirements  to be filled.

When long-term data must be accumulated,  presuming there  are no
data indicating adverse  effects  in  our  files, the registrant will
receive a conditional registration  for  the  specified period of
time necessary to conduct  the  additional  tests.

     The  primary purposes  of  reregistration  are to:

      . classify products,

      . update  labeling,

      .  identify and  fill data  gaps, and

      . review  data  on hand  to  ensure  that  the problem pesticides
       will  be identified  and  subjected  to in-depth  scrutiny.

     The  in-depth  risk/benefit review procedure is  triggered when
the  risk  criteria  enumerated  in  the Section 3 regulations  are met
or  exceeded.  The  Agency  then  "presumes"  that  a reregistration will
not  be issued.  The  registrant,  users and the public may "rebut"
this  presumption  by submitting information showing  that there
is no  risk,  that  the  hazard  can  be reduced by special use  directions,
packaging,  or  other  means,  or that  the benefits of  the pesticide's
use  outweigh  the  risks.

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                              -8-

     This information-gathering and decision-making  process,  which
will be discussed in greater detail later,  is known  as  "rebuttable
presumption against registration"  (RPAR).

     B.  Priorities.  The Agency has set registration/  reregistration
priorities to provide the greatest public  protection and  best use
of limited resources:

     1.  Classification  and reregistration of those  product  uses
         most likely to  be restricted.

     2.  Basic registration/cancellation decisions on those  products
         triggering presumptions against registration on  the  basis
         of potential adverse health effects.

     3.  Making the basic registration  process  more  workable  by
         such efforts as improving data cataloging,  data  valida-
         tion and regional support to help firms  properly make
         application.

     4.  Reregistration  of products destined  for  general  use.

     While we will not meet the statutory  deadline of October 1977,
devoting top resources to classification of restricted uses,  reviewing
pesticides which potentially cause unreasonable adverse effects,
and smoothing the registration mechanisms, will be responsive to
essential goals of the statute.  An important point  to note  is that
products will remain on  the market regardless of  the October 1977
date until action on reregistration is  taken.

     C.  Data Requirements;

     1. Background.  There are three  places where data requirements
are articulated:

     The Law:  The  statute requires under  Section 3(c)(5) that the
Administrator make a  finding prior  to  registration  that a product,
among  other things,  will perform  its  intended  function without
unreasonable adverse effects on the environment.   To make this
finding the Act authorizes the Administrator to request test data
in support of the application  for  registration.

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                              -9-

     The Regulations:  To write regulations implementing that
standard has been one of the biggest challenges before the Office
of Pesticide Programs.  Efforts to  include the public  in the
decision making process for devising the registration, reregis-
tration, and classification regulations were unprecedented.   In
July of 1974, a public meeting was  held in Washington  in which
the first draft of the regulations  — which had previously been
mailed to over 200 interested parties — was openly discussed.
That meeting was  followed by the  formally proposed regulations
in October of that year.  Because of the tremendous impact these
regulations were  to  have, and the intense public  interest, there
was an extensive  comment period on  the proposals.  Final regulations
were not issued until July  1975,  and were effective in August.

     The regulations enumerate the  basic registration  requirements
(ง162.8) and establish criteria for identifying  those  products
with potential for an "unreasonable  adverse effect1' (ง162.11).
The regulations reflect the Agency's concern about the potential
chronic effects of pesticides on  human health.   They  include
requirements for  oncogenic, mutagenic, teratogenic, and
reproductive testing where  appropriate to adequately  assess
health effects in addition  to environmental chemistry, wildlife,
phototoxicity, chemistry, and efficacy data.

     The Guidelines:  To more clearly define specific  data  recuirenents
to support registration, Section  3(c)(2) of the  Act  instructs the
Agency to  issue Guidelines.  The  Guidelines will  specify,  among
other things:

      .data requirements  for registration,
      .characteristics of acceptable testing,
      .examples of acceptable test methods,  and
      .the  information required  in test  reports.

Proposed Guidelines  were published  in  the  Federal Register on
June  25, 1975.  The  Agency  is revising  this  document  after careful
review of  the  large  number  of comments  received.

      The Guidelines  represent a difficult  concept:   the  regulatory
articulation of  scientific  requirements.   In  science, practically
nothing  is  absolute.  In regulatory affairs,  clear-cut answers
are  required.   In science,  the  search  for  knowledge  never ends.
In regulatory  affairs,  decisions  must  be  made  on the  basis of
the  knowledge  available.   In science,  the  freedom to   experiment
and  innovate  is  cherished.   In  regulatory  affairs,  a  definitive
method  of  measuring  and  judging must be established.

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                               -10-

     Cotnpetent regulatory decisions must, of course,  be made
largely on the basis of scientific  information.   EPA,  therefore,
must find a way to reconcile these  differences.   In  the final
Registration Guidelines, EPA will provide minimum standards  for
acceptable testing.  Thus, with respect  to many  types  of  toxicity
testing, the Registration Guidelines will not  only indicate  when
the testing is required, but also specify such  factors  as  relia-
bility, preferred  species of test animals and  routes  of adminis-
tration, numbers of dose levels to  be  tested,  reporting requirements
and so on.  In practically all instances, these  specifications
have been derived  from, or are consistent with,  test  protocols
already published  in the scientific literature.

2.  Data Requirements;  PROBLEMS
     PROBLEM ffl;  Should  the  Section  3  regulations  be  modified?

      Discussion.   The  State-Federal  FIFRA  Implementation Advisory
Committee  (SFFIAC)  has  suggested  several  changes  in the  registration/
reregistration/classification regulations.  SFFIAC"s major recommendations
are to:

      .better define "use  inconsistent with  the  label,"
      .increase  flexibility  in efficacy  and  hazard data requirements,
      .re-establish  negligible residue concept,
      .clarify  precautionary statement requirements, and
   •   .increase  flexibility  of the numerical toxicity indicators
      used  to  trigger  an  in-depth risk/benefit  review  or classify
      products.

      Agency commitment.  Amendments  to the Section 3  regulations
will  be  prepared  for transmittal  to USDA,  Congress, and  the Scientific
Advisory Panel  in early 1977  as  the Agency deems appropriate.

    PROBLEM #2:Will  EPA insist  that new testing conform — without
   ' exception  —  to the minimum  standards specified in the Guidelines?

   •   Discussion.   Testing that meets the standards in all respects
may not  always  be accepted  without question, but testing that does
not meet the  standards is much more likely to run  into problems.

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                             -11-

     When a prospective registration applicant believes  that  a
particular testing standard is inapplicable or impractical  in a
particular case, or when the applicant wishes to  deviate  from the
standards in any significant respect, consultation  with  EPA before
testing begins will be strongly advised.  Alternatively,  the
applicant can proceed with testing and take a chance  that  it may
be accepted.  In either case,  it will be  up to the  applicant  to
spell out reasons why non-conforming tests should be  accepted.
Such reasoning will have to include a persuasive  argument  showing
that the non-conforming testing will not  (or did  not) significantly
reduce the likelihood of discovering any  adverse  effects  that  a
pesticide may be capable of producing. In short,  insofar  as new
testing is concerned, applicants will have to take  the initiative
in persuading EPA to accept testing that  will not (or did  not)
meet the minimum standards.

     Agency commitment.  Taking  into account  the  intricacies of
toxicological testing and  the  diversity of scientific opinion  on
many aspects of such testing,  EPA's position must be  that while
the minimum standards are  designed to facilitate  decision-making,
testing that does not conform  in all respects does  not necessarily
preclude decision-making.  To  the  extent  that EPA's scientists  can
reach reasoned  conclusions from  test results  (even  though the testing
fell somewhat short of EPA's  standards) without  making extrapolations
or assumptions  that have no  foundation  in the  test  results or in
other pertinent data, such test  results will  not  be rejected.   In
such cases, of  course, the EPA scientists performing the evaluation
will thoroughly document their reasoning  so  that  the  public may
be fully  informed.
PROBLEM #3:   How  will  the Registration Guidelines be applied to data
submitted  in  years  past?	  	
      Discussion.   Thousands  of tests performed over the past 25
years  will  be  examined  during reregistration.  Many of them, however,
do  not  satisfy the specific  criteria of new testing standards in
many  respects.  EPA could,  of course, reject all such nonconforming
tests.   The  testing standards set forth in the Registration Guidelines,
however,  are not an absolute prerequisite for decision-making.
For instance,  the results of a test performed with only 40 animals
per dose  level,  when considered in light of both the remainder
of  the  test  protocol and other available information about the
pesticide,  may very well enable a scientist to reach sound conclusions
regarding the  pesticide's chronic toxicity.

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                                -12-

     Agency commitment.  In the reregistration  process,  EPA  will
necessarily take the  initiative in evaluating nonconforminp,  test inc.
EPA will determine whether tests performed before  the  issuance  of
the Registration Guidelines — if they do not meet  the  new minimum
standards — can be considered scientifically valid  and  provide
the information needed  for decision-making.  Again,  the  EPA
scientists who make such judgments will document  their  reasoning.

     The key issue to consider in reviewing  non-conforming tests
is validity — can the  Agency have confidence in  the  results?  In
each case, EPA must assess the information present  and  determine
if 1) the data are reliable and meet  or exceed  the  "unreasonable
adverse effects" criteria enumerated  in the  Section 3 regulations,
and thus that an RPAR is triggered, 2) the data are reliable and
show a negative effect, thus supporting registration or reregis-
tration, or 3) the test was so poorly conducted that  the results
are meaningless, and  thus that a data gap exists.

     PROBLEM #4  How  can the Agency successfully convey data requirements?

     Discussion.   It  is not a simple  matter  to  convey a complex set
of data requirements  to an applicant  or any  other interested party for
the first Lime.  But  it is important  to do  so.   It  wastes company
resources to submit and resubmit  incomplete  applications for
registration.  This is  most important to  the small manufacturer or
formulator and to  potential minor  use registrants.  And it wastes
Agency resources to deal with procedural matters, when there are
so many substantive issues which  demand attention.

     After the Section  3 regulations  were  published last year, the
Agency sent a  team across the nation  to explain the new requirements
and to assist  registrants  in  understanding  and  preparing for reregis-
tration.  Nine workshops  in  10 cities were  attended by approximately
2000 registrants.   The  Agency  found  that  it  is  very helpful  to discuss
requirements  face  to  face with registrants,  and we should thus not
only be able  to  express data  requirements  in written form, but also
be  available  for personal  explanations.   Because of the changes
in  the registration process  since  those workshops, further  personal
guidance  should  be available  to  registrants at  the local  level.

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                               -13-

     Agency commitment.  To convey data  requirements,  the  Agency
will:

     . issue the Guidelines.  The  schedule  is  as  follows:

       — Hazard Evaluation and  Chemistry Sections:  first  quarter
          1977: through  internal EPA review groups;  second quarter
          1977:  to USDA, Congress, and  the Scientific Advisory
          Panel; third quarter 1977:   publish  in  Federal Register.
          A document with which  the EPA  staff  can work will be
          complete by  the first  of March and will be available
          to registrants and  the public  and will  be  used while
          the  Guidelines are  under review by the  rest of the Agency.
          Notice of availability will  be published in the Federal
          Register after EPA  working  group  approval, but before
          interagency  review.

      . train Regional  personnel  to assist registrants at the local
       level.   The initial  phase of this training program is near
       completion, and additional  programs  and instructions will
       follow.

      . invite  registrants to  use the  Regional  expertise.  PR
       Notice  76-2 was issued on June  21,  1976, notifying all
       manufacturers  and formulators  of  the availability of
       Regional assistance.

D.   Data Availability, Validity, and  Applicability

      1. Background

        a)   Company data files.

         What  data do we have, and how good is it?  The data  required
by  the Agency  is  received  from individual manufacturers in  support
of  product  registrations.   Most  of the data on hand,  therefore,  is
in  data  files  submitted  by  companies.   When the  1972  Act  was  passed,
none of  the  data was  cataloged.   It  was in  different  formats,  and
reflected  the  various regulatory standards   acceptable  at  the  time
of  submission.  Data  files  thus go back many  years  and  range  widely
 in  terms  of  quantity, quality, and organization.

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                               -14-

     Under the old FIFRA, products could be registered  in  accordance
with "accepted patterns of use."  In other words, a reviewer  could
issue a registration based on the fact that a  similar product  was  already
registered.  An application did not have to be  linked to specific
data.  Now,  in accordance with Section 3 of the  amended Act,  the
Agency must be able to  identify specific data  in  support of  any
registered product.  This does not mean that reams of duplicate
data must be submitted  nor that duplicate  testing would be required;
it does mean, however,  that specific data  references must  be  associated
with each registration.

        b)  Data Validation.

     This  is an area of particular concern to  the Agency.  To
discuss it properly, we must  first establish the  historical  per-
spective  for data examination for the reregistration  process.  In
1973, during the planning stages for the new registration/reregis-
tration program, we were operating on the  basis  of certain important
precepts  and constraints:

     o  first, there would be no significant  increase  in
        resources, particularly manpower;

     o  there was a Congressional deadline to  reregister  some
        35,000 Federally registered  products  and  register  for
        the  first time  an estimated  15,000 intrastate  products
        by October 1976, now, of course, by October  1977;

     o  the  Agency had  to maintain  a reasonable response
        capability to continue handling applications  for  new
        registration, tolerance, and experimental use  permits;

     o  the  Agency anticipated that  data  gaps  would  exist  because
        of new data  requirements.   However, we made  three  very
        important assumptions  about  the data  already on file;

          —  data  results  were derived  from testing which generally
             was properly  performed  and  fully  reported;

          —  they  were  initially  reviewed  in  accordance with
             scientific  standards  appropriate  for today's
             decision-making;  and

          —  data  problems  were  generally  identified by prior  reviewers
             and  followed  up  in  terms of  resolving questions  or obtaining
             additional  studies  as  needed.

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                               -15-

     It was recognized that these assumptions would not hold  for
every case.  However, it was anticipated  that in  those  few  instances
when imperfect decisions had been drawn,  the potential  errors  would
appear when registrations had to be renewed  (the  law  requires  renewal
every 5 years) and could be addressed then.  All  in all,  we believed
that our suppositions were sound, and our  resources could be  focused
on the obvious problem products, label  improvements,  and  the  collection
of additional data where gaps were discovered.

     Our assumptions, as will be discussed  in the  problem section
below, did not prove  to be viable.  Increased emphasis  has  been
placed on validation  during the past year.   Data  validation will
consist of three  primary elements in the  regulatory context:

     1.  First, the data must be evaluated  on a  purely  scientific
         basis to establish the scientific  soundness  of the
         conclusions.

     2.  If these studies are  found to  be scientifically sound,
         their applicability  to the regulatory  decision must  be
         determined,  after consideration  of other supplementary
         data and the Guidelines.

     3.  Finally, validation  consists  of  a statement  of the
         scientific decision  on the adequacy of  the  data to
         fulfill  the  standard  and  a  summation of the  basis  for
         the decision.

     One difficult  concept relates  to  the absence of  data as related
to the presence of  risk.  Bad  data  or  missing data,  unless  falsified
to show opposite  conclusions,  does  not  equal a potential human
or environmental  risk.   The  presence  or absence of a certain type
of study reduces  the  certainty of making  a proper finding of un-
reasonable  adverse  effect but  does  nevertheless not  show a risk
to be  present.  Data  validity shows  hopefully first,  that studies
are  not  fraudulently  conceived or  reported; second,  that they  are
relevant or  not;  and, third,  identifies where data gaps  exist  which
must be  filled  in order  to  reduce  the  potential for  a regulatory
misjudgment.

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                               -16-
        c)  Data Accessibility.

     Company data  files are accessible  to  the  public  and  the  industry
to varying degrees.  Section 3(c)(2) provides  that  the  Administrator
of EPA "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."  However,  the  Agency  is  speci-
fically prohibited in Section  10 from releasing  "trade  secrets ,or
commercial or financial information" pertaining  to  registration
applications.

     Congress in deliberating  on the 1972  FIFRA  amendments  grappled
with the  issue of whether companies who do  not  develop  their  own
data should get a  "free ride"  by relying on data  already  submitted
by another registrant.  To equalize the costs  of  data development ,
a Section was incorporated into  FIFRA which prohibits the Administrator
from considering data submitted  by one  applicant  in support  of  another
application unless the originator of the data  has given permission or
the applicant has  offered to pay reasonable compensation  for  use of
the data.  That is, of course  Section 3(c)(l)(D).  In part,  this
Section became effective with  the issuance  in  the Federal Register of
the Interim Policy Statement (IPS) of November  1973.  According to
the IPS,  data first submitted  on or after  October 21, 1972,  were
eligible  for compensation under  3(c)(l)(D). This policy  pertained to
all applications for registration submitted after November  19,  1973.
However,  in 1975 Congress further amended  the  FIFRA to  specify  that
data submitted on  or after January 1, 1970, were  eligible for compensation
and that  the compensation provisions applied to  all applications for
registration submitted on or after October 21,  1972,  and  not approved
before November 28, 1975, the  effective date of  the amendment.

     The  issue is  further complicated because  various segments  of
the pesticide industry are disagreeing  as  to what data  are  covered by
Section 10, Trade  Secrets.  Data covered by Section 10  cannot be
relied upon by the Administrator or released to the public  without
consent of the owner.  In addition, small  formulators are concerned
about signing an offer to pay  statement, or "blank check,"  which
commits them to paying an unspecified sum  in the future.   Congress
is concerned that  the data compensation provisions may  be encouraging
a monopoly within  the  industry to the detriment of the  small businessman.
Many of these issues  are now being considered  in the  courts, which
will ultimately resolve some of  the  fundamental problems.

     We have issued  a  second Federal Register  notice  (January 1976)
stating our current  policy with  regard  to  data compensation and describ-
ing the changes to this Section  brought about  by the  1975 amendment.
This amendment further provided  that registration not be delayed
pending the  determination of reasonable compensation in  the courts.

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                               -17-

It has been EPA's position that the Agency should proceed with
registration if an applicant either has permission  to  use data
submitted by a previous registrant or has signed  an offer to  pay
reasonable compensation for the use of the data,  unless  the Agency
is specifically prohibited from utilizing the  supporting data by
court order.

     2.  Data Availability, Validity, and Applicability:  PROBLEMS

     PROBLEM #1:  How  and when will the Agency organize  the  data  on
     file in suppport  of registrations?	

     Discussion.   As  stated in the background section,  company
data have never been completely sorted or organized.   This  creates
a problem for the industry in referencing data to support  registrations
and for the Agency in  locating specific files.

     Agency Commitment.  EPA is now in the  progess  of  cataloging  all
company data in the  files.

     The  first step  was to index  the  volumes  of data  currently  in
our data  library.  We  have now identified 50,000 volumes of  company
data,  i.e., we have  an index of the physical  description of  each
volume on hand.

     The  second major  step in  the cataloging  process  will  be to
identify  the tests within each volume (each volume  averages  20-22
tests).   An OPP contractor is  cataloging  these tests  at a steadily
increasing rate.  We have twice accelerated  the contractor's schedule
to obtain maximum speed:   for  the priority  chemicals  (those which
may be subject to RPAR and the restricted classification),  the  job
will  be  complete  in  January  of  1977,  the  entire file  to be completed
by April  1977.

     ?ROBLEM ^2;   Are data  in EPA files  reliable and properly reported?

      Discussion.  Based  on the  precepts  developed when the new
registration, reregistration,  and classification regulations were
written  (see  page 14), the Agency began  sorting pesticides into
three  categories  in  1974/75:   those  for  which the rebuttable presump-
tion  against  registration  would  likely be triggered;  those potentially
restricted  to use by certified  applicators; and those for general
use  candidacy.   In  looking  into  past  files, the Agency  sought  what
was missing,  i.e.,  what  now-required  studies had not been
completed,  rather than what  was  on hand.   Our primary purpose
was  to identify  data gaps  which  could then be filled during the
rerergistration  process.

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                                -18-

     Then in  1976, new  information came  to  light  which  questioned
the assumptions of the  registration  and  reregistration  process.
In January, it was disclosed  in discussion  with FDA and CAO
officials and during Senate hearings  that some  toxicological
data provided to FDA were of  questionable reliability.   An
independent toxicologist was  contracted  to  look  into a  sample
of pesticide  data.  Based on  his  preliminary findings,  the Office
of Pesticide  Programs established  its  own review  force.   In
April 1976 we developed, in cooperation  with FDA.,  a thorough
auditing program to examine laboratory data validity.   Serious
questions were raised about the adequacy of the  testing in
EPA files, and the completeness of the Agency's own review and
followup.

     As a result of these efforts, we  now know that it  is not enough
to determine  whether a  study  is present.  Preregistration review
must go beyond that to  determine  what  the study showed  and whether
proper follow-up was taken.   Grossly inadequate  and misreported
previous testing will hopefully not  be widespread; however, the
problem cases already identified  require us to go to the extra
effort.

Agency Commitment.  To  resolve  the reliability of data question,
several important  steps are to  be  taken:

First — the  Agency is  initiating an auditing program in conjunction
     with FDA to determine  if:

     1.  The  testing  in audited files was performed in accordance
     with the test protocol selected by  the sponsor (i.e.,  pesticide
     company) or testing laboratory.

     2.  Any  errors were made that may have materially affected
     the test results.

     3.  Any  practices  were  followed that may have biased  the test
     results  or  obscured the  biological  effect of  the chemical.

     4.  Test procedures or  results or any relevant data  were
     materially  altered during  or after  testing.

     5.  Test reports  submitted to EPA (or  predecessor agencies)
     fully  and  accurately  reflected all  material  facts regarding
     the actual  test  procedures and results.

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                               -19-

Seconcl — KPA published an ndvnnce notice of  proposed  rnlos  on
      October 5, 1976, which would require  toxicology  tost
      reports to include certain information  to  provide  the
      Agency with a greater degree of confidence  that  the work
      has been properly conducted.  Public  comment  has been
      solicited.
PROBLEM: T3:  How deeply should data  in EPA  files  be  reviewed
prior to reregistration?	

     Discussion:  Just what "review of data" means  has  recently
become a matter of some considerable  concern.   A  Senate sub-
committee report has stated that the  Agency  has misled  the  public
as to the depth of review of data  on  file  prior to  reregistration.
Obviously,  there are several levels of data  review — each  with
specific implications regarding resources,  timeliness,  and  public
impact — which are possible.  The  following  logical  review stages
could be applied:

     1)  identify all the acute, subacute,  and  chronic  toxicity
data on hazard  to humans, domestic  animals,  fish  and  wildlife  and
all environmental chemistry data currently in our files;

     2)  review any existing Agency summary  and analyses of these data;

     3)  review summaries of use history,  if any,  including any
accident reports;

     4)  review the full  test  report  which was  submitted by the
applicant and validate  the data  in accordance  with present  day
standards.  The test report  is the narrative and graphic description
of the test method and  results;

     5)  compile and review  any  articles  and monographs readily
available in  the open  literature  and  any  Agency working documents
which bear  on the effects of  the  compound;

     6)  review the raw data  and  slides  which were the bases for
the test report which  was  submitted to the Agency.  Raw data
includes the  laboratory workbooks  and any other recorded material;

     7)  perform an extensive  literature search and review  any
articles which  bear on  the  effects of the compound.

     When the Agency  planned  its  original strategy for  reregistration
in 1973,  it was decided -that  the  best utilization of public resources
in the  alloted  time would  be  to  basically divide pesticides into
two primary categories:   suspected problems and those  which the
use history and the  literature implied were not posing  unreasonable
adverse  effects.  Those suspected  problem pesticides (those which
had greatest  potential  for  causing an unreasonable adverse  effect)

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                                -20-

wpuld undergo a thorough  data validation  and  risk/benefit review
through the RPAR process.   The  other  pesticides would be classified,
their labeling upgraded,  and data  gaps  identified and new testing
required in accordance with the regulations implementing Section 3
of the amended Act.  Our  approach,  then,  was  to screen out the "bad
actors" to which our resources  could  be immediately devoted while
further testing was being  conducted on  the  other pesticides which
could be more thoroughly  reviewed  after the new test results were
received.

     However, due  to the  discoveries  made earlier in the year as
discussed above regarding  data  on  hand, our original approach was
not affording adequate examination of data  in our files for non-
RPAR products.

     A full review, including examination of  every piece of paper
in each file, data validation including recourse to tissue slides
and raw data where needed,  literature search  and outside consul-
tation on risk data as well as  an  assessment  of economic and social
importance of the  compound's uses, alternatives, and use history
would at best require  about two man-years of  effort per chemical.
A basic de novo review of all the  data on hand, then, could take
between 10 - 20 years  to  accomplish  at our  current resource level,
especially considering the scarcity  of hazard evaluation scientists.
At the other extreme,  we  could  simply look  at the first level of
review and give primary  priority to  identifying data gaps.  That
kind of job could  be accomplished  in  one or two years even with
current resources.  And  in between those two options are various
levels of review depth and resource  commitments which could affect
the  thoroughness and timeliness of the task.

     The more in-depth the data review prior to reregistration,  the
greater  is the eventual  certainty that the public will not be exposed
to an unreasonable  adverse effect  based on all available knowledge.
But  on the other hand,  the longer the Agency spends  on reviewing  data
on hand, the  longer  it will be  until  Guidance Packages identifying
da'ta gaps and requiring  additional testing are  issued, and thus  the
longer it will be  until  the review of each product  takes place.   In
actuality, there  is no alternative but to  sacrifice  some degree  of
either certainty or  timeliness.  The  policy question  is  then:   is
the  public best  protected by a  thorough  in-house review  of those
data  in our  files  which  delays  filling data gaps, or  is  the  public
interest best served by  a screening process which seeks  to  identify
the  "bad actors"  and —  while  these compounds are going  through  the
RPAR process  —  increase the data base from which a more  complete
assessment can be  made?   Clearly,  this question  comes down  to how
the  public will  be best  protected.

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                               -21-

     Agency Commitment.  The Agency will  conduct  a  review on  bioeffects
and environmental chemistry data through  level  five  as  explained  above.
As far as efficacy data are concerned,  we  are  considering relying on a
certification either by the applicant or  USDA  that  the  pesticide  will
perform per label claims, provided that any  new use  will  require
efficacy data, and all efficacy data on disinfectants or  other products
related to public health will  be reviewed  and  validated.   General
chemistry data will be required with each  application.

     The general reregistration strategy  will  remain the  same,
that is, products will be called in by  batches  and  Guidance
Packages will be issued.  However, the  internal review  before
the development of the Guidance Package will be substantially
amended.  The Agency will:

     1.  look at the files  through level  5,  and determine whether
         studies are valid  and proper  follow-up on  reviewers'
         questions has occurred in the  past;

     2.  develop standard procedure  for our  own reviewers to use
         in documenting  their  findings, so that the basis for the
         decision  is clear;

     3.  consult with  other Agencies  in addition to looking
         to primary  literature sources;

     4.  present all pertinent findings to an   internal  review
         panel  before  the  issuance of  the Specific  Guidance
         Package to  assure  scientific,  legal,   and policy
         consistency and  credibility.

     The heart  of  the  new procedures  will be a chemical  review
      file  (CRF).   The  CRF  will contain a  summation of  all supporting
     data,  the  use history of the  pesticide, literature  citations,  and
      all other  pertinent  information.   The review panel  will  examine
      the CRF  for  content  and  completeness, concur in the  classification
      conclusions,  the  RPAR conclusions, and the  action recommendations.
 PROBLEM #4:What data are eligible for compensation,  and  can  the
 Agency register in cases where a compensation dispute  is outstanding?

      Discussion.   While 3(c)(l)(D) now provides clear  direction  as  to
 what data are compensable, if used by another registrant in  support
 of a subsequent registration, it is not certain what data  are  available

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                                -22-

for use in this way.  The  trade  secret  provisions  of Section 10 of
the Act significantly affect  the  availability  of  data.   Specifically,
test data submitted before January  1970 may  be relied  on without
consent of the owner firm, without  an  offer  to pay compensation, and
without regard to Section  10.   (This does  not  mean such  data may be
released, but rather may be considered  internally for  purposes of .
reviewing registration applications).   However, the right to rely
on test data submitted on  or  after  January 1,  1970, depends upon
the applicability of Section  10.   If the data  are  not  confidential,
the data may be relied upon by  other applicants with or  without
the consent of the owner (although  in  this case the applicant must
offer to pay reasonable compensation).  If the data are  confidential
they may be relied upon only  with  the  consent  of  the owner so long
as the provisions of 3(c)(l)(D)  are observed.   There is  thus a
reciprocal relationship between  3(c)(l)(D) and Section 10.  It is
the Agency's position that data  submitted  by companies in support
of registration (e.g., toxicity  data,  feeding  studies,  environmental
chemistry data, etc.) may  be  compensable,  and  are  not  trade secrete.
It is our view that upon a showing  that the  information  has been
maintained in confidence and  that  its  public disclosure  would likely
cause substantial harm to  the data  submitter's competitive position,
the confidential  formula,  financial information and data in support of
an application not yet approved,  should be accorded confidential
treatment.

     Ten cases involving data compensation/trade  secret  disputes
are currently at  issue in  the courts.   Pending any final decision
on these trade secret issues, we  have  been enjoined from considering
any of the data in question in  support  of  other registrants' applications
or have entered into stipulations  to that  effect.   This  is a significant
problem, as it potentially can  affect  approximately 12,000 products
on which no registration or reregistration actions may be taken until
the courts make a final ruling.   In the meantime  the current registrations
continue on the market and applications for new registrations cannot
rely on that data without  the consent  of the owner.

     An even more crucial  trade  secret  problem concerns  use of
confidential formulas.  The relevance  of data  in  support of an
application is generally determined by comparing  one registrant's
product with another.  Product  B cannot rely on Product  A's data

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                               -23-

unless the two products are the same.   Some  segments  of  industry
claim that EPA cannot compare any  application  to  a previously
registered product without considering  the  formula of the  two
products in question, and thus all data are  protected under  Section
10.  Litigation is also pending on this issue,  which  will  have
a major impact on the whole reregistration  process.

     Agency Commitment.  EPA  is taking  several  steps  to  help resolve
data compensation complexities:

     o  a Federal Register notice  was  issued on October  18 relating
to the determination of data  compensation  claims.   In that notice,
the Administrator authorizes  the Chief  Administrative Law Judge
to hold hearings and issue Initial Decisions as to claims  under
Section 3(c)(l)(D).

     o  the proposed Section  3(c)(l)(D) regulations have been written
and were transmitted to the USDA and  the Agriculture Committees of
Congress in November 1976.  They were  presented to the Scientific
Advisory Panel when  it convened  in early December.

     o  a solution to  the  identicality  question in some
cases is the  submission of complete  chemical analyses on the two
products showing practical  identicality, thus demonstrating the
relevancy of  prior data  to the  current  action without use of trade
secret materials.  Some  applicants have requested that we accept
these reports as evidence  of  identicality.   Where such comparative
analyses are  not adequate  to  show relevance of prior testing, the
problem remains.

     o  a paper  is being  prepared  for the  House Agriculture Committee
which addresses  the  competitive aspects of FIFRA  implementation,
including the data compensation and  trade  secret  issues.  During
the next oversight hearings  early  next  year, we will discuss with  the
Committee the possibility  of  amending the  Act  to  clearly define
what  information  falls  under  the  trade secret  provisions of  Section
10, and how the  Agency can use this  information during  the  registration
and reregistration process.

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                                 -24-

     E.  TRANSITION IMPACTS
  1             ..'.:•           '
     1.  Background.  Many of the  problems  now being-faced  by the
Ofefice of Pesticide Programs are attributable  to  the  dynamics of
changing from the 1947 statute  to  the new  Section 3  regulations
under the 1972 amendments.  It  has been  obvious  from  the  beginning
that a certain amount of  confusion and  inconvenience  would  be ex- <
perienced in this transition period; however,  when it  was anticipated
that the transition would be but a year  or  two,  the  associated
problems appeared to be tolerable.  Now  —  because of the data validity
question — the transition period will  be  considerably lengthened,
and it is imperative that additional thought be  given to  the transition
impacts, especially as they affect applications  for  new registration.

     2.  Transition Impacts;  PROBLEMS

          a)  Registration

PROBLEM:  How will  the Agency treat registrations and conditional
registrations now that all chemicals are back  in Category V for
purposes of data validation?	;	

Discussion:  It has been  the Agency position  that data requirements
for registration and reregistration should  be  separate, and that
applications for new registrations should  for  the most part fully
comply with all the requirements of the Section 3 regulations prior
to registration.  On February  17,  1976,  the Agency published in the
Federal Register a  description  of  the  reregistration process, and
placed all pesticides  in  five  categories according to data status:
I) compounds for which all supporting  data were present,  II) compounds
for which long-term data  were missing,  III) compounds for which short-
term data were missing, IV) compounds  in the  RPAR category, and V)
compounds unreviewed.  Data policy was  further described in the
May 1976 statement  on  conditional  registration which allowed regis-
trations of products  identical  or  substantially similar  to those
already registered  while  long  term data gaps  were being  filled
so  long as the  parent  compounds were  placed in Categories I or  II.
With the data validity problem, however, all  products are back
in Category V  (unreviewed) and  thus  the May statement is virtually
inoperative.

     The Agency must  therefore  come  to  grips  with the question  of
processing new  applications while  the  data validation efforts  are
underway.  It  is clear  that all new  chemicals must meet  the new
Section 3 requirements  fully  prior to  registration.   If  the Agency
were  to  insist  that every data requirement of Section 3  be met

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                             -25-

and validated prior to any new registration of  old  chemicals,
however, (given the fact that data validation will  take  many  years),
we could virtually bring new registrations of old chemicals  to
a standstill.  (The Administrator's  Pesticide Policy Advisory Committee
has passed the following resolution:   "Old chemicals now registered
will be treated alike regardless of  whether  they are now registered
or will be conditionally registered  in  the future,  while data are
being gathered; the definition of old  chemicals to  include existing
products with new  formulations.")  On  the other hand, if we  permit
any registration of any old chemical without  data validation, we
would not be protecting the public health.   Clearly, to  best  serve
the public interest (which demands a balancing  of pest control
needs with potential  adverse effects impacts),  we must take  a position
intermediate to either extreme.

     Several important factors must  be noted  in this regard:

     o  the Section 3 regulations require  some  chronic data which
        take years to accumulate; thus, while the regulations
        became effective overnight,  the ability of  registrants
        to comply  with new data  requirements did not;

     o  during a transition  period,  it is  more  logical and less
        economically  and  socially disruptive to get  from  point
        x to point y  gradually  rather  than  abrubtly  — the important
        thing  is to get  to point y,  and to  get  there
        without creating havoc  along the way;

     o  the  absence of data  does not preclude our  ability to make
        an "unreasonable  adverse effects"  decision   —  if, for
        example, the  Agency has  95%  of the studies  on a  certain
        pesticide  but one  long  term  study is missing, that final
        study  will serve  to  only incrementally add  to our know-
        ledge  about  the  product  and  our confidence  that  the
        product will  not  pose  an unreasonable  adverse effect.
        But  that one  increment  may not prevent the Agency from
        making a Section 3 finding based on all  the information
        which  is  available;

     o  any  new uses  of  old chemicals  during the transition  period
        must be  supported  by validated data pertaining  to the new
        use;

     o  our  primary mandate is to protect public health and  the
        environment;  however,  we should strive  to  assure that
        our  registration policies do not disrupt pest control
         producers  and particularly users without achieving
        environmental protection.

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                                -26-

Agency Commitment.  The Agency  will  develop  a  new registration policy
which treats like chemicals  in  a  like  manner during the transition
period.   We plan basically to remove the  distinction between
registration and reregistration as  far as data requirements are
concerned.  Any application  involving  a change in use pattern
will be treated as a new  chemical with respect to the new use,
i.e., the full complement of data necessary  to judge the environ-
mental impact will be  required  prior to registration.

     A policy statement implementing the  new approach to registration
and its implications for  tolerance  setting is  being prepared, and
will appear in the Federal Register  in February 1977.  A general
description of the process is in Attachment  II.  Additionally, the
Agency plans to exercise  an  open-minded policy with regard to Section
18 requests for use of new chemicals during  the transition period
in cases where there is an urgent need for pest control and,most of
the information needed for registration is developed and looks
promising.

          b)  Status of Guidance  Packages

     PROBLEM;   What is happening  to the  72  Guidance Packages previously
     issued by the Agency?	

     Discussion.  After the  need  to  better review data on hand was
discovered, a moratorium  was declared  on  registration.  At that time,
72 Specific Guidance Packages covering 2,527 pesticide products had
been mailed.  The  following  actions  have  since been taken with regard
to these  72 packages:

     — an acute hazard profile has  been  built for the
        Chemical Review File.   Most  of the earlier packages
        were built  from abbreviated  chemical worksheets which
        are now considered  inadequate;

     — external  reviews  have been  added  to a  substantial number
        of CRF's;

     — a summary  of chemical use history is being added;

     — documentation  of  the original  classification  decision
        has been  added to each  package.

     Agency Commitment.   The following actions require completion
for  the CRF covering  the  72  Specific Guidance  Packages:

     — use pattern  summaries;,

     — environmental  chemistry summary;

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                           -28-

o antidote  statements  which  need  to  be reviewed  and improved.

  These  problems complicate  the  following broader issues
  dealing with  the Act,  and/or Agency policy:

o current strict  interpretation  of 12(a)(2)(g),  which according
  to many user  groups  gives  rise  to  unnecessary problems of
  misuse;

o possible  inadequacy  of PEPS to  meet long-term interpretations
  and/or specific  cases  on a broad policy basis;

o transition  from  old  labels to  reregistered labels;

o coordination  of  certified  applicator training program with
  label  classification changes.

Agency Commitment.   To resolve  these issues, we will:

 1.   Initiate  improvement of use  directions in the reregis-
     tration process  as follows:

     A.   develop a format for the  elements found in use
         directions and the order  in which they should appear.

     B.   develop an internal training program to alert
         EPA reviewers  to inconsistencies in labeling
         so  that such problems can be addressed  in  future
         Guidance  Packages.

 2.   Ask  a  special  Chemical Specialities Manufacturers Association
     (CSMA)  committee to help us  develop a new class  of  labels  for
     home products.  A proposal  from CSMA is expected within  the
     next few months.  Such labels would bear simplified,  less  techni-
     cal  use directions and general pest descriptions.   The Agency
     could  then  consider whether  or not home labels may  serve
     as  a prototype for similar approaches for agricultural  labels.

 3.   Adopt  the transitional scheme included  as Attachment  III
     for  conversion of old labels to reregistered  labels.

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                               -27-
     -*- literature search;

     — completion of the use history  summaries;                 ;

     — annotations of data bibliographies with  abstracts  of
        prior reviews.

     Following the completion of the CRF's  for  the  72  packages these
files will be reviewed for:

     — validation of the data

     — RPAR criteria                     ;

     Recommendations  for  action will then be  prepared  and  the CRF's
will be submitted to  the  internal review  panel.
    v
     Depending upon the changes indicated  (if any),  either a
revision letter or a new  package will  be  issued  for  each of the
Guidance Packages.

          c)  Labeling
     PROBLEM:  What actions  to  improve  the  pesticide label
     will be taken during reregistration?	

     Discussion.  While  existing  pesticide  labels are undergoing
considerable upgrading  as a  result  of  regulatory changes during
the reregistration process,  these, improvements are largely confined
to the warning and precautionary  statements concerned with the safety
aspects of the label.   The label  format  has been standardized to
make labels more  uniform and easier to  read.

     Because of time  and resource constraints, very little has
been done to improve  the use directions portion of the pesticide
label.  A number  of problems exist  with use directions:

     o inconsistency  between directions for the same use on
       different  product name labels of identical formulation;

     o lack  of a  standard format  and nomenclature for presenting
       a given use direction to insure  uniformity and inclusion
       of all  the necessary  elements such  as method of applica-
       tion, site, timing, etc;

     o a high  degree  of specificity with regard to pests, which in
       some  cases is  considered too rigid;

     6 extensive  technical  language which  is too  sophisticated  for
       certain user  audiences;

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                               -29-

          (d)  Use Inconsistent With the Label
     PROBLEM:  Are all deviations  from  the  label  directions  illegal?

     Discussion:  Part of the  labeling  problem  is the  issue  of "use
inconsistent with the label" as  incorporated  in Section 12(a)(2)(G)
of the Act.  The Agency has  interpreted  12(a)(2)(G)  in a "strict"
manner, i.e., it is Agency position  that  any  deviation from  the
label  is at  least technically  a  violation of  the  law.   In a  series
of Pesticide Enforcement Policy  Statements  (PEPS),  the Agency has
exercised  its prosecutorial  discretion  by defining those kinds of
label deviations against which enforcement  action will not be taken.

     The PEPS are meant to be  an intermediary tool during the
transition  period between the  1947 Act  and  the  fully implemented
1972 amendments.  As  the transition  period  is extended, so is the
question of  PEPS viability.

     Agency  Commitment.  To  help alleviate this problem, registrants
will be encouraged rather than discouraged  to broaden label  directions
during registration  and reregistration, e.g., the phrase "... and
similar corn root pests" and "similar broadleaf weeds in the home  '
lawn." This  policy has  been  used in  the herbicide area, and should
be expanded  to  other  areas where applicable.   The basic difficulty
to this approach  is  the reluctance of some registrants to broaden
labels because  of potential  liability problems.

     A more  fundamental  approach to  the problem would be to develop
a more flexible interpretation of "use inconsistent with the  label."
The Report of  the House Agriculture  Committee  issued  after the  1975
oversight  hearings  specified that not all deviations  from the  label
should be  considered  a misuse, although the Report did not provide
any definitive  guidance  in  this  regard.  During  the first half  of  the
year,  the  Agency will give  priority to reviewing the  various  views
on use inconsistent  with  the label.   PEPS were designed  primarily
with  a relabeling  completed  in 10/76 or 10/77.   If the  process  is
to run on  longer —  we now  expect to 1979-80 —  then  other longer
term  alternatives must be  considered including a process  of  before-use
definition of  what  our reviewers have  in mind  when looking at  label
directions,  and giving advisory guidance to  growers before the  use as
to whether we  consider it  inconsistent or not.

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                             -3 fl-

     it is likely that  further Congressional direction  will  be
forthcoming this Spring in the absence of a  finite  solution
before that time.

          e)  Rebuttable Presumption Against Registration  (RPAR)

Background

     One of the most  significant processes of  registration/reregis-
trat ion, which is particularly intensive during  the transition  period,
is the screening of already  registered products  to  determine if they
meet the "unreasonable  adverse effects"  standard  of amended  FIFRA.
Products which meet or  exceed the  risk criteria  enumerated in the
Section 3 regulations undergo an intense risk/benefit  analysis  under
the auspices of the Office of Special Pesticides  Review.   If any of the
risk criteria have been triggered,  the Agency  may "presume"  that  the
product will pose unreasonable adverse effects on man  or  the environ-
ment.  The registrant can rebut  that presumption  by demonstrating
that the risk is not  present or  that the risk, while valid,  can be
mitigated so as to reduce actual hazard.  Failing to establish  that
the risk is invalid or  can be acceptably mitigated, the registrant
also has the option of  demonstrating that the  benefits  exceed the
risks of the product's  use.

     A notice of rebuttable  presumption  is not tantamount  to
a notice of intent to cancel. It is rather a statement  of  the reasons
why the Agency presumes against  registration,  and an invitation
for the industry, other Government agencies,  users, environmental
groups, and the public  to provide  benefit  and  risk data.   The
process may last up to  180 days, during  which  time the  pesticide
in question may continue  to  be  sold.

     Basically, RPAR  is a  five-step process:

     1.  Preliminary  review  of EPA data  files  and the  relevant
         literature to  determine candidates;

     2.  Validation of  the data  to establish the trigger of  the
         unreasonable adverse effects  criteria;

     3.  Notification of  the registrant  and  the public of the
         RPAR, via  the  Federal  Register  and  solicitation of  input;

     4.  Submission of  rebuttal  and/or supporting  information  by
         the registrant and  interested  parties regarding risks and
         and benefits;  and

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                              -31-

         Determination as to whether to register  or  deny  registration,
         or to initiate cancellation.  If the decision  is  to  proceed
         with a notice of intent to cancel,  the Agency  must  submit
         the proposed notice to USDA and the Scientific Advisory
         I'anel as mandated by tho  1975 FIFRA .•imciulnuMit s.   If  tin-
         decision is to proceed with reregistration,  the  public  is
         notified of the decision  and  the reasons therefore  in the
         Federal Register.
     Seven RPAR's have been  issued:   Kepone,  Chloroform,  Chlorobenzilate ,
Endrin, BHC, 1080 and strychnine.  Two  chemicals (picloram and sperm
whale oil) have been cleared  and  referred  to  the reregistration
process.
RPAR Problem yl;_  What  is  an  RPAR  candidate  & what is its status?	

Discussion.  RPAR candidates  are  those  compounds which "appear" to
meet or exceed the  "unreasonable  adverse  effects" criteria enumerated
in Section 3 regulations.   They remain  candidates until we examine
the data which we feel  may trigger the  criteria.  If that examination
confirms that the data  are good and  do  meet  or exceed the criteria, an
RPAR is issued.  If,  on the other  hand,  we  find that the data are not
good or do not meet the criteria,  the  product is returned to the
registration process.

     Candidates were  identified  from three  primary sources:

     1.  the Mrak report ("Report  of the [HEW's] Secretary's Commission
         on  Pesticides  and Their  Relationship to Environmental Health",
         1969);
     2.  "Bioassy of  Pesticides  & Industrial Chemicals  for Tumorigenicity
         in  Mice:   A  Preliminary  Note"   done in  1969  for  the National
         Cancer  Institute.
     3.  Referrals  from chemical  screening  by the Registration
         and Criteria and Evaulation Division in preparation for
         reregistration.

Registrants  have  inquired as  to  the status  of their  products which  are
on  the  candidate  list as far  as  registration and reregistration  purposes
are  concerned.

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                              -32-

Agency Commitment.  The following policy  applies  to  candidates  on
the RPAR list:

     — no RPAR candidate will  be reregistered  until  it  receives
        clearance  from the Office of  Special  Pesticide Review.

     — no new registrations  involving  an ingredient  on  the  RPAR
        candidate  list will be  issued unless  the  registrant  can
        demonstrate that there  would  be a positive  environmental
        or health  benefit from  the new  registration.
RPAR PROBLEM #  2:   Are  too many  candidates  being  identified
through the acute  triggers?	

     Discussion.   The  Section  3 regulations  at ง162.ll(a)(3) set out
three acute toxicity criteria  which  if  met  or exceeded,  trigger the
RPAR procedure.  However,  it has  been discovered  that  the criteria
are not serving their  intended function as  a screening mechanism
to select out those pesticides which  should  be subjected to an
intensive review.  For example, one-third  of the  insecticides
have triggered  at  least  one of the criteria.

Agency commitment.  We are presently preparing a  proposed regulation
change to modify the acute trigger criteria,  which we  plan to present
to USDA and the Scientific Advisory  Panel  in early 1977.
RPAR  PROBLEM  #3:   How will  benefits data be collected and
incorporated  into the procedures?	

      Discussion.   One important concern to the user community
is  that  EPA receive  proper  information regarding benefits of a
pesticide  during  the RPAR process.   One of the primary purposes
of  the RPAR review is,  in fact, the consideration of benefits data
outside  the adjudicatory process.

      The Agency has  been working with USDA to develop a  system
which will facilitate the collection of benefits data from the
field.   USDA  recently announced the establishment of a national
pesticide  assessment program to provide input to pesticide decision
making.  This effort includes participation by seven USDA agencies,
land  grant colleges, and agricultural components of state governments

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                              -33-

and other concerned organizations.  Questionnaires will be  sent
to participators requesting information on the benefits and  risk
of RPAR candidates.  The flow of  information should also be  augmented
by a data use system, which USDA  predicts will be operational  by
July 1977, and will be accessible through existing computer  networks.
This system will advise participators of the current registration
status of pesticide products.

     Agency Commitment.  EPA has  just completed  a formal memorandum
of understanding with USDA.  The  memorandum outlines the specific
procedures for:

     .exchanging existing benefits  information,
     .gathering new information where appropriate including
      that for minor uses,
     .introducing  this information  into the RPAR process.

     A copy of the memorandum of  understanding is Attachment IV.
RPAR PROBLEM #4:  Why  is  the  process  behind  the  original  schedule
and what does this mean in  terms of the  October  1977  date?	

     Discussion.  According  to  the original  schedule,  21  compounds
were to have been reviewed  by October to determine  whether  or not
RPAR's should be issued.  Unfortunately,  the  establishment  and
staffing of the Office of Special  Pesticide  Reviews  took  longer
than anticipated.  The Agency also found that  the validation review
was more complex than  originally thought and  that grouping  of compounds
on the list by major use  patterns, e.g.,  fumigants,  wood  treatments,
cotton insecticides, would  provide for more  efficient and logical
decision making.

     Agency Commitment.   EPA has just published  a new OSPR  schedule.
Decisions on whether or not  to  issue  RPAR's  on that  list  will be
made by October  1977.  A  copy of the  schedule is Attachment V.

          f)  Petroleum Distillates
 PROBLEM:  What  will  the Agency do  in the reregistration of pesticides
 containing  petroleum distillates given potential of risk from PNA's?

     Discussion.   Petroleum distillates are contained in thousands
of  pesticide products both as  inert and active ingredients.  Poly-
nuclear  aromatic  hydrocarbons  (PNA) can be found in petroleum
distillates.   Since  some PNA's are  carcinogens, the Agency is concerned
about  the  PNA content in pesticide  products,  and the associated potential
hazard.

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                               -34-

     On September 21, EPA published  a  proposed  method  for  detecting
PNA's through ultraviolet (UV) absorption.   Each  applicant  for
registration and reiregistration of any  product  containing  a petroleum
distillate would be required  to provide  the  Agency  with  information
regarding the -PNA content of  the distillate  as  indicated  by the
UV absorption method.  Registrants would  also be  required  to keep
records of the UV absorbance  of subsequent batches,  which  shall
be made available to EPA upon request.   Public  input  to  the proposed
action was solicited in the Register notice.

     The Agency  is evaluating:  (1)  the  risks which  petroleum
distillates may  pose for man  and the environment,  (2)  the  type
and amount of exposure to petroleum  distillates which  the  public
experiences as a result of  pesticide products,  and  (3) the benefits
accruing from use of petroleum distillates  in  pesticides.

     Agency Commitment.  Because more  than  20,000 products are
affected by the  petroleum distillate question,  it  would  unduly
interfere with the production of food  and fiber to  deny  registrations
while the' risk is being assessed.  Therefore,  the Agency is preparing
a notice to appear in  the Federal  Register  which in effect rebuts
the presumption  against registration for cetain products and outlines
the data requirements  which will be  attached to conditional registrations

     The petroleum distillate question is but  an example of an
environmental problem  which  includes pesticides only marginally
(less than 1% of petroleum  distillates manufactured are  used  in
pesticides).  In all  such cases, the Agency should have  an overall
policy to resolve the  entire  problem.   This  dilemma will be further
explored as the  Agency implements  the  new Toxic Substances legislation.

     Petroleum distillates  are  also  but an example of the  general
issue of inerts-contaminants  (e.g.,  HCB, dioxin, nitrosamine)  which
fundamentally affects  the registration/reregistration process.   The
Agency's general approach  in  this  area will be consistent  with  the
PNA  situation, i.e., we will  attempt to limit  exposure while  taking
appropriate  steps  to  assess the  risk.

          g) Minor Uses
 PROBLEM:   How can the Federal Government assist in the registration
 of  needed  products which are too minor to justify industry expense?

      Discussion:   The availability of pesticides for  so-called  "minor
 uses" has  long been a topic of concern to growers.   In general,  a
 pesticide  use is  considered minor if its market potential  is  insufficient
 to  economically justify the development of needed data required  for
 registration  by the manufacturer.  Apart from data development,
 industry  is  also  concerned about high liability risk  in  cases  where
 damage  may be great even though pesticide use is small.

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                               -35-

     Before 1972, FIFRA did not require  all  uses  to  be  Federally
registered and did not include penalties  if  label  directions
were not followed.  Section 12(a)(2)(G)  of the  amended  Act  now
makes it unlawful "to use  any registered  pesticide in a manner
inconsistent with its labeling."   Under  the  earlier  Act,  too,
intrastate products were not regulated by the  FIFRA,  and  many
minor use needs were registered by States.   The problem is,  then,
that it is now a violation of the  law  to  approve  minor  uses via
many of the former techniques and  the  industry cannot justify
the expense of gathering necessary data  to achieve Federal
registration.  It is also  anticipated  that registrants  will drop
some minor uses during the reregistration process rather than
meet new data requirements.  While Section 24(c)  of  the Act
permits the States to register products  for  special  local needs,
which include minor uses,  such registrations cannot  be  granted
unless a tolerance for the food  crop in  question already exists.
24(c) thus is not a complete solution.

     A cooperative effort  to facilitate  Federal registration of minor
uses has been underway for several years through the Interregional
Research Project  group (IR-4) at  Rutgers, sponsored  by USDA and EPA.
Just a few years  ago thousands of minor  use  pesticide products needed
to  be registered.  IR-4  liaisons  at the  various State Agricultural
Experiment Stations  analyzed and  prioritized these needs, and  now
the current  list  for agricultural uses,  which constitutes the major
part of minor use requirements,  includes about 700 requests.

     Agency Commitment.   As  a  regulatory agency, EPA does not have
lead responsibility  in obtaining  the data needed  to  support regis-
tration; because  of  the  difficulties in  the  minor use  area, however,
we  will  facilitate the resolution of the problems as best we  are
able.  Toward  this end,  we will  take several steps:

      1.  The  Registration Division of OPP is assigning a
special manager  to  "shepherd"  minor uses exclusively and to
address  industry  and  user group  concerns.  The possibility of
grower organizations becoming  registrants will be explored.
Instructional material  to guide EPA reviewers  will  also  be made
available  to  industry  and other  interested parties  outlining  how
minor use  registrations  will  be  handled.

      2.  A full  time professional from the Registration  Division
has been assigned to work in IR-4 for the next year  to  assist  in
developing complete  submissions  to  the Agency.

      3.  The  700 requests referred  to above will, with  the  assistance
of  EPA  Regions  and  the States,  be prioritized  by  the end of January
1977.   The prioritized list  will  be sent to industry representatives
to  determine their  willingness to cooperate  in registering/reregistering
the proposed  uses.   Attempts will then be made to  identify adequate

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                               -36-

substitutes that will not be encumbered by minor  use  considerations.
These combined efforts will permit USDA, EPA,  IR-4  and  the  industry
to focus their efforts in dealing with minor  uses that  are  of  priority
importance.

     4.  A similar prioritized list will also  be  developed  in  January
in cooperation with user groups  for non-agricultural  applications.
Since tolerances are not involved, the difficulties in  registering
these uses are considerably less, although the  liability  issue
remains.

     5.  EPA is working with USDA to  accelerate  the cataloging
and release of registration use  data.  The data  on  registered  uses
via microfiche is the current mechanism used  to  convey  this use
information to the States and to user groups.   The  use  computer
system  described on page 28 could assist in  collecting  efficacy
and phytotoxicity data from the  States.  This  combined  system  could
well ease  the minor use and 24(c) problem  by ensuring that  users
have easy  access to needed data  on currently  registered uses.

     6.  EPA will encourage Directors of State Experiment Stations
to apply for and employ broad, one-year experimental  use  permits
for uses related to those cited  on the EPA,  IR-4, USDA  priority list.

     7.  Beginning in January 1977, EPA will  begin  providing brief
quarterly  progress reports in the minor use  area for Congress  and
other interested parties.

     8.  EPA will discuss with the House Agriculture Committee
the possibility of creating a liability  fund  for minor  use
pesticides and exploring  such options  as user group/non-EPA
Federal Agency registration during the next  oversight session in
early 1977.  This might be a means of  relieving industry's concern
about liability from  expanding current  labels.

           h)  Intrastate  Pesticides.
PROBLEM:   How will  EPA register the products currently being
marketed  solely  within a State without a Federal registration?	

     Discussion.   On September 17,  1975, the Agency published a notice
in  the Federal Register advising all manufacturers of intrastate pesti-
cides of  the  impending promulgation of new final regulations  for the
registration  and  classification of  pesticides.   To provide for an orderly
transition from  State to Federal regulation.  The Agency has  permitted
a manufacturers  of  valid State registrations to continue marketing
intrastate so long  as they submitted a notice (within 60 days of the
effective  date of the Section 3 regulations) of this intent  to apply
for Federal  registration.  We would notify such registrants,  at a later
date, when to submit a full application for registration.

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                               -37-

     Agency Commitment.  EPA will  issue  a  Federal Register  notice in
April 1977 requesting manufacturers  of  intrastate products  to  submit
an application  for Federal  registration.

     F.  Tolerances

     Background.  Section 408  of  the Federal  Food,  Drug,  and Cosmetic
Act (FFDCA) requires that a tolerance (allowable  residue  level) or
tolerance exemption be  established for  a pesticide  that is  added to
a raw agricultural commodity.  A  petitioner  for  such a tolerance must
submit to the Agency data on  the  pesticide's  toxicology,  residue, and
analysis.  Toxicological data  are  also  required  by  the Agency in
evaluating whether a pesticide meets the standards  for registration as
set out  in Section 3 of the FIFRA.   Hazard evaluation performed to
meet the standards of  the FFDCA cannot  be  inconsistent with hazard
evaluation performed to meet  the  standards of FIFRA.  Thus, require-
ments  for toxicological tests  for pesticides  which  may result in
residues in food  or  feed, as  articulated in  the  Section 3 regula-
tions  and the Registration  Guidelines,  are equally  applicable to
registration  and  tolerance  setting activities.   Similarly,  the data
validation program which  is aimed at reviewing the  validity of data
for purposes  of reregistration will  also pass comment on the validity
of data  for purposes of tolerance setting.  The  net result is that
the enactment of  the  '72  FIFRA and the  promulgation of Section 3
regulations have  blurred  the  sharp distinctions  between regulation
and tolerance matters.  FIFRA and FFDCA are  intrinsically related and
the Agency must act  accordingly.

     Although  it  would be most desirable to review  tolerances  for a
chemical at the same  time  that its Chemical Review  File is being
prepared, two factors  argue against doing so:  lack of resources  to
perform  both  reviews  simultaneously and the existence  of uncertainties
surrounding  the tolerance question.  Rather than beginning  a  tolerance
review without  full  resolution of these uncertainties, it would  be
better to delay the  review until  a comprehensive set  of procedures
and policies  is developed.   Thus, we propose first  to  study the
current  procedures  and if necessary to amend them;  and also develop
policies on how to  handle interim tolerances, zero  tolerances,
temporary  tolerances,  and existing uses which result  in residues
on  food  or  feed but  for which no  tolerances exist.

     Agency  Commitment.  EPA intends to:

      1.   Complete a detailed  description  of present tolerance
          setting procedures by January  1977.

      2.   Perform a  comprehensive  evaluation of the  principles
         underlying tolerance setting.  The Environmental  Health
         Advisory Committee of EPA's Science Advisory Board  will
          be  asked to undertake this  task.

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                               -38-

     3.  Issue new procedural tolerance  regulations  —  taking into
         account the Advisory Committee's  findings — by January 1978.

     4.  Systematically review tolerances  chemical-by-chemical  after
         January 1978  independent of  the reregistration  process.

     As part of the reregistration  process,  however,  some steps can
be taken to improve the tolerance situation:

     1.  Labels will be reviewed  to  identify those uses  which can
be expected to result  in  food or  feed  residues  and  for  which no
tolerances exist.  We  will  impose animal  feeding or  other restrictions
on the label where corrective action  is  found  to be  appropriate.

     2.  Toxicology data  will be  reviewed  in-depth  as  part of the
data validation program for  reregistration.   If long-term data gaps
are discovered and if  the pesticide  does not exceed  any RPAR criteria,
the pesticide will be  conditionally  registered  for  the  length of time
necessary to perform and  report  additional testing.   During this
period, the pesticide  tolerances  will  remain in effect.   They will
be reviewed again  after the  missing  data are submitted  to the Agency.

III.  USE REGULATION

     A.  Background

     Congress, in  passing the  1972  Act,  recognized  that pesticide use
presented both benefits and  risks to human health and  the environment.
One of the major additions  to  pesticide  legislation  was the strengthening
of regulatory controls over  the  uses and users of pesticides.

     The new Act accepts  the premise that  most pesticides,  if
correctly registered and  properly labeled, can be used  by the
general public with  the  assurance that human health and the
environment would  be adequately  protected.  These are general
use pesticides.

     The Congress  also recognized that there would be certain
pesticides and certain uses of  pesticides  which, because  of  their
potential hazard,  should  not be  used by an applicator who does
not have the needed  level of skill  or awareness.  They  determined,
therefore, that  such a use  would be classified as a restricted  use
pesticide.  Under  the  Act,  a person applying restricted use  pesticides
would  need to become  a certified applicator or would have  to use
restricted use  pesticides under  the supervision of a certified  applicator,
or be  subject  to  any other  restriction deemed  appropriate by the
Administrator.

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                               -39-

     The Act provides that EPA shall establish standards  for
certification, and that States shall conduct certification  programs.
EPA published standards in October 1974 that must  be met  by private
applicators (farmers) and 10 categories of commercial  applicators:
(1) agricultural pest control; (2) forest pest control;  (3) ornamen-
tal and turf pest control; (4) seed treatment; (5) aquatic  pest  control;
(6) right-of-way pest control; (7) industrial, institutional,  structural
and health-related pest control; (8) public health pest  control;  (9)
regulatory pest control; and (10) demonstration  and research  pest
control.

     EPA published guidelines  for use  in  developing State Certification
Plans in March 1975.  After considerable  controversy  over methods for
certifying fanners,  an  amendment to the FIFRA  was  passed  in  1975
authorizing training as an acceptable  certification method.   The
program is now generally well  received and commendable progress  is
being made.

     A major advantage  of certification is that  it eliminates the
"all or nothing" approach to registration and  cancellation decisions.
Rather than removing a  pesticide from  the market,  or  denying  its
access to the market, the Administrator can  restrict  the uses of the
pesticide and be assured that  the product will be  used only by skilled
applicators.  This  in turn provides the degree of  human health and
environmental safety needed to authorize  the  use of  the pesticide.

     B.  Classification

     The key  to  implementation of the  State  Certification Plans   is the
classification of  pesticide uses.   In  the future,  all new products will
be classified restricted or general during  the registration process.
The reregistration  and  classification  of  the  more  than 33,000 pesticide
products currently registered  and on  the  market  is underway.

     Classification  involves:

      .establishing  criteria  for  identification of restricted uses;
      .evaluating  the  toxicity  and  the  exposure from use  patterns
       against  these  criteria;
      .considering  the  use  history  in  terms of reports of adverse
       effects  involving the  product;
      .making  an  initial EPA determination;
      .allowing  registrants  to  consider this  determination;
      .discussing any disagreements; and
      .making  a  final EPA determination.

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                               -40-

Thia process will continually change the number  of  restricted  uses.
Uses will be added and removed as  the  registration  and  reregistration
proceM moves forward.

     Several issues discussed earlier  have  caused  serious  delays
in registration.  Consequently,  classification,  which  is  integral
to the reregistration/registration process,  is  about  to get underway.

     C.  Certification

     As indicated above,  the  amended FIFRA,  Section 4,  calls for
a cooperative Federal/State program  to provide  for  the  certification
of applicators  of restricted  use pesticides.  Through  concerted
technical and funding assistance from  EPA  to  all States over the
past 2 years, major progress  has been  made  toward  the  goal of
fully operational State plans nationwide by the October 21, 1977,
deadline established  by Congress.   To  date,  47  States  have formally
submitted plans  to EPA for  approval.   Nine  more States  are expected
to submit plans  during the  next  several months.   Applicator training
programs have been established  in  all  States  and have  achieved a
generally high  level  of acceptance among  private and commercial
applicators  alike.

     Over the past two years,  and  in cooperation with  the  States and
the USDA Extension Service, EPA  has  developed and  published a  host
of training  materials which can  be used by the  State Cooperative
Extension Services which  have  the  major responsibility for training
applicators.  The basic concept  of this cooperative approach is that
EPA would sponsor the development  of training materials which  would
be an extension of our standards for certified  applicators.  These
materials would, therefore, of  necessity  be minimal in terms of
all the complex material  that might be made available for presen-
tation.  The States would then  add their  more specific requirements
to this "core"  material.   This  concept has worked well and has
led to reasonable and well  developed training programs in almost
all States.

     It should  be pointed out that training is  not mandatory under
the Act.  All States, however,  have recognized  the value of
training, education,  and  voluntary compliance,  and have made
training a major component  of their certification program.

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     D.  Use Regulation:  PROBLEMS
PROBLEM t 1:  How can the  States  certify  applicators  in  the
	absence of a definitive  list  of  restricted uses?

Discussion.  Training and  certification of  applicators  are  intended
to be directed  at the proper  and  safe  use of  pesticides  classified
for restricted  use.   It can be  assumed  that  for-hire  commercial
applicators will need to use  one  or  more  restricted  use  pesticides
in the course of their normal operations.   The same  assumption
cannot be made  with  respect to  the  so-called  "non-commercial" and
private applicators.  The  result  is  that  for-hire applicators are
participating in training  and certification programs, while many
non-commercial  and private applicators  are  not, deferring parti-
cipation until  pesticides  are classified  and  a determination can
be made as  to the necessity of  becoming certified.   EPA long
ago recognized  this  likelihood,  and  in 1975 prepared and
distributed a list of active  ingredients  which presumably would
have one or more restricted uses.  EPA intended that the list
would provide information, pending  actual product classification,
sufficient  to enable States to  develop and  implement programs
which would reach maximum  numbers of potential users of restricted
use pesticides  prior to October 21,  1977.  However,  there is
still uncertainty among States  and  applicators as to the final
result of  classification,  leaving training and certification
programs in many States short of the necessary momentum.

Agency Commitment.   In  conjunction with States, industry, and user
groups, EPA has for  the past  month  been developing a more compre-
hensive listing of  active  ingredients likely to have one or more
restricted  uses.  The list was  completed  and distributed in
early December.  It  should provide greater certainty of classifi-
cation and  thereby  increase  the impetus of State training  and
certification programs.

      It  is important to  note  that a good "rule of thumb" to   apply  is
that  an applicator  using  pesticides with "danger"and skull and  crossbones
on the current  label, labeled for use in aquatic environment  or in
forests, or registered  as fumigants, should plan to  be certified  since
these types of  uses  are most  likely to be restricted.

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                               -42-

     EPA recognizes the difficulty in  frequent  changes  in the  number
of uses that are restricted.  Such changes  create  problems  for the
Extension Service training  the applicators,  for the  State Lead Agency
administering the program,  and for the  farmer who  may or  may not
require certification, depending  on which  uses  are restricted.  To
compensate  for these difficulties, we  have  taken  three  steps:
1)  ensured that certification of farmers  is  an uncomplicated  adminis-
trative process with many options available  to  the States;
2) authorized an emergency  program to  allow an  uncertified farmer to
purchase a  restricted  use pesticide under  circumstances beyond
his control, and;   3)  established a phasing concept  in  terms of
label changes to reflect  the  restricted  use  determinations,  and
in terms of the date by which the purchaser must  either be certi-
fied or be  the agent of a certified applicator.  It  is  the Agency's
intent not  to require  a label change  in  the middle of  a growing
season which could  disrupt  or inconvenience  applicators.
PROBLEM #2:  What  is  the  relevance  of  the October 21, 1977, date
to those States whose  plans  have  been  approved on a contingency basis?

Discussion.  Of the  forty-six  plans  formally submitted to date,
all but five have  been or will be approved contingent upon passage
of legislation  and/or  promulgation  of  regulations.   Most of the
remaining  eight States will  receive  approval of their plans also
on a contingency basis.   In  order to have a fully approved and
therefore  fully operational  plan, a State must satisfy all contin-
gencies; that  is,  it  must enact any  necessary legislation and
promulgate  all  necessary  regulations.   Failure of any State to
accomplish  these actions  by  October  21,  1977, will  leave such  a
State deficient in requisite legal  authorities, thereby preventing
EPA from granting  full approval to  that  State's plan.  The effect
of this situation, in terms  of law,  may  be the termination of  that
State's authority  to  carry out Section 4 of amended FIFRA.

Agency Commitment.  EPA will continue  to review and provide comments
on all proposed legislation  and regulations, testify  at legislative
and public  hearings when  requested  by a State, and take other
appropriate actions to ensure  that  all States have received infor-
mation and  assistance necessary to  achieve  full approval  status.

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                               -43-
PROBLEM #3:What will happen  in  a State without  an  approved
plan by October 1977?	

Discussion.  Despite the best  efforts  of this  Agency and  the  States,
circumstances may arise in one  or more States  to  prevent  compliance
with all requirements necessary for  full plan  approval  by the
October 21,  1977, implementation  deadline  for  certification.   It is
EPA's legal  opinion that in  such  a  situation EPA  has two  available
options:   (1)   to defer enforcement  against  use of restricted use
pesticides by uncertified  applicators  in States without fully approved
plans until  such time as those States  satisfy  the requirements of,
and are granted  full plan  approval;  or (2)  to  make certification
available  through some other mechanism or  combination of  mechanisms
such as:

     — developing  a Federal certification program
     — relying on  the certification apparatus of a neighboring State.

Agency Commitment.  EPA is  fully cognizant of  the ramifications of
these options.  Decisions  are  being  made,  and  policies  developed,
to  structure programs necessary to  take action under both.  Cir-
cumstances will dictate whether one  or both options will  be
exercised, but  regardless  of the course taken, the actions will
be  based not only  in law,  but  also  in  equity.   Restricted use
pesticides will  not be denied  to those needing and qualified to
use them.
PROBLEM  M;   How will Federal employees be certified?

Discussion.   In the State Plan Regulations published March 12, 1975,
provision  was made  for the Government Agency Plan (GAP), through
which  Federal employees could become qualified for certification.
The  act  of certifying Federal employees would be carried out by
the  individual States.  The failure of GAP to generate much  interest
among  Federal agencies, and recent Supreme Court decisions rendering
tenuous  the concepts underlying GAP, have caused EPA to consider
other  approaches.   The most viable approach is to treat Federal
agencies as States  for purposes of certification.  A Federal agency
would  thus certify  its employees under a plan developed in accordance
with the State Plan regulations and approved by EPA.  Federal  agencies
not  desiring to develop a plan would have the option to voluntarily
submit to  State jurisdiction for certification.

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                                -44-

Agency Commitment.  EPA will  prepare  amendments  to  the State Plan
regulations to provide  for Federal agency  certification,  and will
work with agencies wishing to  follow  this  course  in the development
of necessary programs and plans.  These  efforts  arc underway.
PROBLEM #5:  How will  applicators  on  Federal  Indian
reservations be certified?	

Discussion.  State  jurisdiction  on Federal  Indian reservations
varies widely.  The State Plan Regulations  take  note of this fact
and make provision  for Indian governing  bodies  to develop their
own'certification plans  or  to enter into cooperative agreements
with States  for the purposes of  carrying out  certification under
those States'  plans.   To date few  Indian governing bodies have
exercised  either option  or  made  their desires known.  At the same
time, little effort has  been made  by  States or  the Federal government
to  inform  Indian governing  bodies  of  the requirements of Section 4
and the available courses of action.

Agency; Commitment.   EPA will increase its efforts in working with
the Bureau of  Indian. Affairs to  contact  Indian  governing bodies
and to ensure  the development of appropriate certication programs
on  all1 Federal Indian reservations.
PROBLEM  #6:   How  will  EPA ensure that State certification and training
programs are  being carried out in accordance with approved plans, and
that  the purposes of FIFRA are being achieved?	

Discussion.   The  submission and approval of State plans is only  the
first  step  in implementing Section 4.  The heart of implementation
lies  in  the  conduct and quality of State certification and related
training programs.   To ensure attainment of the goals of certification,
a  system must be  established not only to measure State adherence  to
the  provision of  approved plans, but also to evaluate the qualitative
effectiveness of  certification and training.

Agency Commitment.   A guidance document is being developed to provide
the  basic structure for Regional Office evaluation of State  certification
and  training  programs.  The evaluation will begin this winter.   In
addition, a Request for Proposal (RFP) will be  issued for a  major
contract to  provide base line data on quality of current pesticide use,
and  to evaluate the overall impact of certification and training.
This  second  element of the contract will involve not only an evaluation
of the relative improvement in the quality of pesticide use, but  also
an effort to  determine the adequacy of various  EPA and State
certification requirements in achieving the purposes of FIFRA.

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                               -45-
PROBLEM #7:Can States be expected  to  assume  the  full  cost
burden of certification and training programs?	

Discussion.  Prior to  the passage  of amended FIFRA in 1972,  few
States had in place or intended  to establish comprehensive  pesti-
cide use control programs.  It can be fairly said  that  many,  if
not a majority, of the States would  not now be  constructing  such
programs in  the absence of the FIFRA requirement  that they do so.
The reasons  are both political and economic.   The  Federal Government
proceeded  to urge States  to participate on a cost  sharing basis
for start  up costs, presuming that the States  would then continue
the program  on  a maintenance basis solely with  State funds.   The
exact point  of  the termination of  Federal assistance is difficult
to determine precisely, but it appears that continued assistance
at a reduced level is  appropriate  for FY '78 and  perhaps FY "79.

Agency Commitment.  EPA has received an appropriation of $4.6 million
in FY '77  for certification and  training assistance, and will request
additional funds  in FY '78 and consult with the States on FY '79.
The amount of funds to be requested  for the latter two fiscal years
will be determined on  the basis  of joint EPA/States assessment
of need.

IV.  ORGANIZATION

     It  is clear  from  the preceding  sections  that  there  are two
vital but  nonetheless  separate  processes in pesticide regulation:
the scientific  evaluation and  the  regulatory decision.   Scientific
expertise  is necessary to validate and interpret data; regulatory
judgment  is  necessary  to  apply  the scientific  evaluation to risk/
benefit  decision  making  in  which social and economic as  well as
scientific factors must  be  weighed to reach final  conclusions.
The scientist must be  free  to make scientific  judgments  and the
regulator  must  be able to apply the   findings of scientific reviews
to  the  requirements  of the  law  and regulations in  drawing conclusions.

     The most  important  tasks  within OPP all require scientific
support.   The  reregistration  process must  look to  scientists for
data validation and  assessment  of data gaps.  The  registration
and tolerance  setting  process  for new  applications  and  petitions de-
pends  upon scientific  evaluation of  supporting data.   The RPAR process
looks  first  for the  scientific  validation  of the  information
triggering the  Section 3 162.11  criteria.  In other  words, there
are three  major program elements responsible for  regulatory  decisions
which  rely on  scientific data validation  and evaluation  efforts:

      1)  registration/tolerances
      2)  reregistration;
      3)  OSPR

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                               -46-

     Presently, primary scientific support  is  divided  up  among the
Criteria and Evaluation Division, the Registration  Division,  and
the Technical Services Division.  Because of the  priority need
for data validation and review which cuts across  Division lines,
it is only logical to reassemble  the bulk of scientific  personnel
in a new Division which will be responsible  for review of supporting
and hazard data.  During  the recent past, OPP  has not  had adequate
staff in certain critical  skill pools to accomplish all  of its
objectives in a timely fashion, a condition  that  has been worsened
by the fact that the program's human hazard  and environmental effects
analytical talent is scattered across three  Divisions.

     For these reasons, OPP management  has  decided  to  seriously pursue
an.organizational regrouping of some critical  functions  and activities.
Principally involved are  those scientists with the  responsibility  for
hazard evaluation and hazard data validation,  and those  scientists
involved in the aggregation of use data and  the preparation of the
benefits cases under RPAR.  However, to complete  that  effort most
responsibly, OPP must also look at the  other segments  of  the
organization as well and  take  this particular  opportunity to make
some necessary changes in location of some  additional  functions
which are supportive of hazard assessment  and  benefits case
preparation.

     Accordingly, OPP has taken  a first cut at some major changes
which appear not only desirable,  but essential.   Stated  somewhat
simply, these changes would go generally as follows:  The science
directorate in the Registration  Division,  (RD) with one exception,
along with the Metabolic  Effects, and  the  Chemistry Branch, and a
portion of the Ecological Effects Branch in the Criteria and Evaluation
Division would be consolidated  in a newly  created Hazard Evaluation
Division (HED).  A portion of  the staff in RD's Efficacy and Ecological
Effects Branch would also be moved  to HED.   The Registration Division
would retain its Pesticides Registration Office structure largely
as is including the Special Registration directorate.

     The pesticides use  data  expertise  in  the  Technical Services
Division (TSD) would be  combined  with  similar  expertise and  functions
now  existing in the Plant Studies and  Ecological  Effects Branch
in C&E into a  use data/efficacy  - RPAR benefits program within
TSD.  Just how that program would be  actually  organized  is  still
very much an open question.   The  Economics Analysis Branch would
be relocated to TSD, and would  retain  its  Branch  status.

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                               -47-

     The Technical Services Division would  retain  the  Health
Effects and Ecological Monitoring  programs  to  which  would  be
added the Pesticides Episodes Reporting  System now located  in
the Operations Division.  The laboratories  now in  TSD  would
remain in that Division with the addition of  the  laboratories and
analytical reference program now run  in  the Registration Division.
The System Support Branch and portions of the  Information Branch
would be transferred to a newly created  Management Operations Division.
That portion of the Information Branch which  would remain in TSD
are those functions with lead responsibility  for  use data collection
and analysis vis a vis RPAR benefits  cases.

     The newly created Management  Operations  Division  would have
not only the responsibilities just mentioned  but  also  those
functions presently vested in the  Office of Program Planning,
Evaluation and Administration.

     The Office of Special Pesticides  Review would be  given
Division Status, but would remain  essentially unchanged.  The
Operations Division would, except  for the loss of the  Pesticides
Episode Reporting Program to TSD,  remain as it is now.

     Separating the sciehtific  from  the  regulatory functions
in each area will optimize the  use of both  scientific  and
management skills.  A  proposed  reorganization chart is
Attachment VI; OPP has  asked  for  its  employee's thoughts on
this proposal, and management  in  pursuing  it with Agency and
Civil  Service  personnel  experts.

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              LIST OF ATTACHMENTS






I     Summary of Problems and Commitments




II    Summary of New Approach to Registration/Reregistration




III   Label Conversion Schedule




IV    USDA/EPA Memorandum of Understanding




V     Revised RPAR Decision Schedule

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        ATTACHMENT I
                          SUMMARY OF PROBLEMS AND COMMITMENTS
             PROBLEM

   PREMARKET REVIEW
   COMMITMENT
DISCUSSION
                                        PAGE #
A.  Section 3 Modification
    proposed by SSFIAC
Agency will make decision as to
what proposed changes are deemed
appropriate early '77	
        10
    Tests which do not meet
    minimum standards of
    guidelines
Agency will encourage applicants
to consult before deviating from
Guidelines.  Agency scientists will
judge on case-by-case basis and
document decisions
        10
    Applicability of Guide-
    line stopastdata	
Scientific assessment on
case-by-case basis	
        11
    Making data requirements
    widely understood
   Issue Guidelines
   Regional assistance to
   registrants (PR Notice 26-2)
        13
E.  Organizing data  for
    reference
Catalogue data.  Priority chemicals
by February 1977, entire file by
April 1977	
        17
F.  Data validity
      — reliability
   Auditing program
   Proposed rules published
   10/5/76
         17
      — review depth
   Chemical Review File
   Level 5 Review
         19
G.  Data compensation
    disputes
   10/18/76 FR Notice  assigning
   ALJ authority  to begin hearing
   disputes.
   Proposed 3(c)(l)(D) regulations
   transmitted to Congress  &  USDA
   11/76.
   Assessing  proposal  to  establish
   identicality by sampling from
   the marketplace.
   Ask Congress to consider clari-
   fying  trade secret  provision  of
   Act
        23
    Transition  impacts  on
    registration,  reregis-
    tration,  and  tolerances
   FR notice  by  February '77
   stating new policy
         24

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                                        -2-
               PROBLEM
I.   PREMARKET REVIEW
COMMITMENT
DISCUSSIOTP
                                    PAGE #
  I.  Status of previously
      issued Guidance Packages
Agency will complete use
pattern summaries, data
summaries, literature
search, use history summaries,
data validation.
        26
  J.  Labeling
format label
internal training
development of new home
use labels
        27
      Use inconsistent with
      the label
Broaden label directions
where appropriate
reconsider "strict" interpre-
tation of 12(a)(2)(G)
        29
      Status of RPAR
      candidates
No reregistrations until
fully processed  in OSPR
No new registrations
containing candidate
compound unless  clear health
or environmental advantage
        31
  M.  Benefits data  input
 	into RPAR process
Memorandum of understanding
with USDA signed  12/76	
         32
  N.  RPAR behind  schedule
New  schedule  12/76
Decisions  on  whether  to
issue RPAR's  by  10/77
         33
  0.  Petroleum  distillates
Method  for  detecting  PNA's
outlined  in 9/21/76 FR  Notice
New  FR  Notice  explaining  policy
by February 1977	
         33
  P.  Minor Uses
 Special  contact  for minor
 uses  in  Registration Division
 Full  time  professional from
 Registration  Division to IR-4
 for  1 year
 Prioritize needs of agricultural
 uses
         34

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                                        -3-
               PROBLEM
     PREMARKT REVIEW
   COMMITMENT
DISCUSSION
                                       PAGE #
  P.   Minor uses  (con't)
   Encourage Experiment Stations
   to apply for broad, one-year
   experimental use permits
   Issue quarterly reports be-
   ginning 1/77 on minor use
   situation
   Discuss with Congress the
   possibility of creating a
   liability fund	
        34
  Q.   Intrastate pesticides
  D.  Federal applicators
      needing certification
   Will issue FR notice calling
   for applications for Federal
   registration 4/77
   Treat Federal  agencies
   like States and develop
	plans	.
        36
R.
II.
I.
B.
C.
Tolerances
USE AND CERTIFICATION
Restricted Use List
States which have
contingency Plans
as of 10/77
States which have no
plans as of 10/77
. New procedural regulations
by 1/78
. New list issued 12/77
Commit resources to help
States achieve fully
approval plans by 10/77
. Defer enforcement or
. Establish Federal plan
37
41
42
43
         43
* E.  Indian reservations
   Increase efforts  to
   work with Bureau  of
   Indian Affairs
 . P.  Quality assurance
   Regional  training
   Contract  study
•  G.  Colts
   Assess needs  with  States
         4r,

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                                                       12/10/76

                                                            HP ^ฃ'Y
                       Summary of New Approach              dJ'a^jHki  a
                    to Reg1strat1on/Rereg1station
     1.  Data requirements for new registrations and reregistrations
will be Identical.  Since the same finding of absence of unreasonable
adverse effect must be made 1n each case, there really 1s no basis for
distinguishing between the two.
     2.  Pesticides considered for reregistration will require, at time
of application, general chemistry data and acute and subacute toxicity
data for mammals, fish, and birds.  If other required data are not
available at time of application, the pesticide may be conditionally
reregistered for the length of time necessary to perform the requisite
testing 1f there 1s no Indication that the product may otherwise pose
an unreasonable adverse effect.
     3.  Old Chemical; Old use pattern:  .New registrations of products
Identical to currently registered products will be treated in a similar
manner.  The short term data described 1n 2 above will be required at
time of application.  All other required data must be cited by the
applicant accompanied by a signed offer to pay statement.  However, if
any data other than that described 1n 2 above are not available for
citation ~ I.e., the tests have not been performed — then the
applicant will be granted a conditional registration allowing him
the time necessary to perform  the required tests.
     4.  Old Chemical; New use:  New registrations of products which
are not Identical to currently registered products but which contain
currently marketed active Ingredients will be treated as  follows.   If
the new pesticide 1s similar to a currently registered one  —  i.e.,

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adds a new pest to the label or Involves a relatively minor change 1n
formulation — then 1n addition to the short term data described 1n 2
above, data to support the efficacy of the new formulation against the
new pest will be required at time of application.
     If the new pesticide Includes a new food or feed crop on its label,
the registration will be granted 1f the Agency determines that the
available data can support the safety of the additional use, and there
is enough data to support a tolerance under the FFDCA.  Such factors
                        •
as the percentage of the diet contributed to by the new crop, the per-
centage of the Allowable Dally Intake already taken up by other food
uses of the chemical, and the results of recent Market Basket Surveys
will be taken Into consideration 1n making this determination.
     Finally, if the new product Involves a changed use pattern, its
registration will be approved 1f data are available to evaluate the
safety of any additional human or environmental exposure caused by
the changed use.
     In all cases, 1f data other than that necessary to make the above
determinations are not available at time of application, the applicant
will be given a conditional registration for a length of time necessary
to perform the missing tests.
     5.  New Chemicals:  Pesticide products with new ingredients or
which otherwise do not fall into any of the above categories will
require the full range of data at time of application  -- no conditional

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                                   3
registrations will be approved.
     6.  Amendments will be treated according to the principles of 4
above for new registrations.  That 1s, amendments Including formulation
changes of a minor nature, or additions of new pests or minor uses
will be approved conditionally 1f short-term data and additional
safety and efficacy data to support the amendment are available at
time of application.
     If the amendment Involves a major crop or changed use pattern, a
scientific and regulatory judgment will be made as to whether the
additional risks Incurred by the amendment are offset by the benefits
for the period of time necessary for the applicant to fill data gaps.

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                                CONVERSION SCKEDULE FROM NON-CLASSIFIED TO CLASSIFIED LABELS
              ATTACHMENT III
 Classification Decision
 Sent to Registrant
 Reregistration

 RESTRICTED USES
 called in prior to May 21.
 1977

 May 21,  1977 -  July 31, 1977
 (assume  all  restricted
 called-in by 7/21/77)
   RD Label Approval
     to Registrant
 Label in Effect for
   all Production
(60 days for submission
   30 days for approval)

 3 mo.  after call-in
 no later than  Oct 21,  1977
 GENERAL USES                 '  3 mo. after call-in
 called in after Jan. 21, 1977
  .,  . .                     !  3 mo. after call-in, no later
 called in prior to Jan. 21,  !  than April 21, 1977
New Registrations before
October 21, 1977

After October 21, 1977

Case-by-case extensions may
be granted upon submission erf
written justification to RD
(cans, labels molded into
plastics, etc.)
                             j
Upon completion of review


Upon completion of review
 October 21,  1977


 December 21,  1977



 6 months  after receipt


 October 21, 1977




October 21, 1977


Effective Immediately
   Label in Effect  for
   all Channels of  Trade
 December 21, 1977


 February 21, 1978



 Not Applicable


 Not Applicable




October 21, 1977


Effectively Immediately

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ATTACHMENT IV
                           MEMORANDUM OF UNDERSTANDING
                                     between
                       THE U.S. DEPARTMENT OF AGRICULTURE
                                       and
                    THE U.S. ENVIRONMENTAL PROTECTION AGENCY
  •I.  Purpose

      The purpose of this Memorandum of Understanding is to formalize

      the working relationship between the United States Department of

      Agriculture (USDA) and the U. S. Environmental Protection Agency (EPA)

      that provides for Improving the capability of both Agencies- to

      conduct pesticide benefit/risk assessments.  The Memorandum of

      Understanding identifies, consistent with existing statutory

      authority, the principles and policies of cooperation between

      the two Agencies and describes the general management and

      operational approaches that will govern the planning, approval,

      underwriting and conduct of the cooperative effort to accomplish

      mutually agreed upon objectives.  This Memorandum is within the

      context of the overall Memorandum of Understanding as signed by

      the Secretary of Agriculture and the Administrator of EPA, July 31, 1974.


  II.  Background

      The USDA is the prime Federal Agency with responsibility for assuring

      an adequate supply and efficient production of food, fiber, forest

      and other agriculturally-related products and improving  the welfare

      of rural people.  EPA has lead Federal responsibility in regulatory

      actions to protect the environment.  The 1972 amendments to the Federal

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      Infiecticide,  Fungicide and  Rodenticide Act  provided  EPA with  the  respon-




      sibility for  regulating the use  of  pesticides.  Additionally,  the legis-




      lative amendments to the Act in  1975  (PL  94-140)  provide  that  EPA must




      notify the Secretary of Agriculture 60 days prior to publication  in  the




      Federal Register of intent  to cancel  a pesticide  product,  except  in  cases




      where the Administrator of  EPA determines that  there is an imminent




      hazard to human health wherein notification is  waived.  USDA  has  30  days




      to respond.   This response  is to be published jointly with the EPA notice.






      With those pesticides that  are presumed to  present an unreasonable




      adverse effect on the environment,  an accurate  benefit/risk assessment



      is required to determine whether or not the pesticides should be




      registered.   Such assessments are multi-disciplinary, involving input




      from biological, physical and social  sciences.  In this Memorandum,




      both Agencies recognize the importance of benefit/risk assessment, and




      the desirability of a viable cooperative  working  relationship to




      carry out designated responsibilities.






III.   Policy



      It is the policy of the two agencies  that.they  work  together  to develop




      objective and accurate data and  related information  required  for




      benefit/risk  assessments of pesticide uses  and  use patterns subject




      to a presumption to refuse  to register  or to  reregister.   It  is




      agreed that this will be done in a manner which recognizes and utilizes




      the capabilities of each agency  to  the  greatest feasible  extent in




      either making resources available to  the  other  agency or  for  the  joint

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                                                                               .3




    planning and execution of activities.   Consistent with  its broad  agricultural




    responsibilities,  USDA and States/universities  are  recognized  as  major  sources




    of information on pesticide uses,  relative effectiveness  of  pesticides  and the




    importance of specific pesticide uses  for agricultural  arid forestry purposes.




    When USDA notifies EPA that it is  not  able to" supply the  necessary information




    for uses such as industrial, home  and  garden, and  agricultural, EPA may work




    with any available data source.  EPA is recognized  as a basic  source of




    information on pesticide registration  and environmental and  health hazards




    associated with pesticide use.  Both agencies have  important contributions to




    provide on environmental aspects of pesticide use.






IJI   Organization and Policy Management              .




    USDA will establish an appropriate mechanism to plan, manage,  and conduct:




    activities.  This mechanism involves a Steering Committee composed of




    Associate or Deputy Administrators of  key Departmental agencies and



    State/University representatives.   This Committee will be chaired by




    the Coordinator of Environmental Quality Activities, Office of the Secretary.






    The Steering Committee will draw upon the technical expertise of key agencies




    through a Technical Advisory Group.  The Technical Advisory Group will be




    chaired by the USDA Pesticide Coordinator.  The Steering Committee will




    establish Assessment Teams for pesticides or groups of pesticides requiring




  * detailed assessments.  The Assessment Teams will develop a plan  of work.




    The individual agencies, through membership on the Steering Committee,



    will concur in plans of work and mutually approve the commitments required




    to implement the plans of work.

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                                                                            4
      I
    EPA will interface with the USDA Steering Committee in addressing policy

    issues, delineating specific joint activities,  and to assure that both

    agencies are fully aware of ongoing efforts in the respective agencies.

    Additionally, EPA will identify a contact person to interface with the

    Technical Advisory Group and serve to facilitate information exchanges.

    When Assessment Teams are in existence,  EPA will also identify a person

    at the technical level to interact with  the Assessment Team Leader and

    to assign EPA members to assure that all information relevant to the data

    collection and assessment efforts are utilized.


    It is understood that, as appropriate, individual sub-agreements to

    this general agreement will be developed to identify individual

    activities and resource commitments.'
                           *

V.  General Guidelines and Provisions

    It is agreed that:

         a.  EPA and USDA will share all available data and analyses
             required for assessment work, but will be free to reach
             independent interpretations of  the information.
       ).
         b.  EPA will channel its requests for agriculture and forestry
             related information and analyses initially through a central
             office in USDA to be designated.  Information in central data
             banks will be made available.  For other information needs
             not in central banks, consideration will be given to formation
             of assessment teams.  Upon recommendation of the USDA/Universi-
             ty Steering Committee, requests for information will be passed
             to the States.  Each state system will be free to clarify
             the extent to which information is available and the ability
             of their system to be responsive to requests from assessment
             teams or EPA requests for other data.  EPA will be advised
             within 15 days if requested data cannot be made available
             within the required time frame and/or when available data can
             be delivered.

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   c.   USDA,  States/Universities  and  EPA will  continue  joint  efforts  to
       determine data requirements  and  availabilities in  order  to  identify
       data gaps and facilitate  filling those  gaps.

   d.   USDA and States/Universities will develop and provide  to EPA new
       data to the extent possible, given  resources  available in the  program.

   e.   EPA will share on a continuing basis  with USDA its timetable of
       actions in the RPAR process  and  the bases for triggering RPARs.

   f.   EPA will inform USDA of decisions on  pesticide uses which in turn
       may be assessed by the States  and USDA.

   g.   EPA will appoint a contact person to  channel  information requests
       and exchange of information  through the USDA  Pesticide Coordinator
       as Chairman of the Technical Advisory Group.

   h.   In cases where an Assessment Team is  assembled by  USDA,  OSPR/OPP,
       EPA will appoint an EPA technical person(s)  to work with each
       Assessment Team as deemed appropriate.

   i.   EPA will advise USDA of its  intentions  to secure needed data or
       information in cases where an  assessment team is not established by USDA.

Both agencies agree that;
  *
   1.   Pesticide benefit/risk assessment is  multi-disciplinary, in which
       inputs from biological, physical and social sciences are desirable;

   2.   Accurate, objective benefit/risk assessments  are desirable for
       implementing certain provisions  of  FIFRA as amended;

   3.   The information flowing from the cooperative effort is subject
       to jndependent agency assessment;

   4.   This Memorandum does not inhibit in any way the participation  of
       either agency in any hearing,  litigation process or regulatory
       action initiated under FIFRA as  amended, or other State or Federal
       statutes;

   5.   This Memorandum does not prohibit either Agency from obtaining
       additional data that will be available to both parties;

   6.   This Memorandum doe's not alter or negate any existing agreements,
       except as both agencies agree; and,

   7.   Working documents and/or clarifying statement:; regarding opera-
       tional relationships will be developed, as appropriate,  to
       facilitate the cooperation agreed to in this Memorandum.

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                                                                                6

  VI.  Funding

       The specif ic .defcaJLls of the levels of support to be furnished one agency

       by another with respect to funding will be developed in specific sub-agreements.

 VII.  Procurement Policies

       Any program or project activities undertaken by USDA for EPA or vice versa

       may involve contractual arrangements with non-governmental institutions.

       When such arrangements are necessary, they will be conducted in a manner

       consistent with policy, regulations and procedures of the contracting

       agency.

VIII.  Public Information and Coordination

       Timely release of information to the public regarding activities

       implemented under this Memorandum will be an objective of both agencies.

  IX.  Amendment and Termination

       A.  This Memorandum may be modified or amended by written agreement

           between USDA and EPA.

       3.  This Memorandum may be terminated by mutual agreement between USDA

           and EPA.

   X.  Effective Date

        his Memorandum is in effect when signed by both agencies.
                                                         \
               fa
Ub A   Deputy Assistant  Stfjretary  for    /EPA  Assistant Administrator for
       Conservation,  Research  and  Education     Water andHazardous Materials
       November  26.  1976 	         December 2, 1976	
Date                                       Date

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  ATTACHMENT V
              IO1SED RPAR DECISION SCHEDULE
                    December 8,  1976
MAJOR USE CATEGORY
AMD CHEMICAL OR CHEMICAL CLASS
PLANNED RPAR
DECISION DATE
INSECTICIDES - CANINE
  Lead Acetate

LINDAME
January 1, 1977
January 15, 1977
HERBICIDES - FOOD
  Oiallate
  Triallate
  Pronamide

RODENTICIOE5
  Arsenic Trioxide

INSECTICIDES - COTTON
  Toxaphene
  EPN
.-.'OOP PRESERVATIVES
  Arsenic Pentoxide
  Sodium Araenate
  Ammonium Arsenite
  Sodium Pyroarsenate
  Pentachlorophenol and salts
  Creosota and related compounds

HERBICIDES - COTTON DESSICANTS
  Arsenic Acid
  Paraquat
  OEF
  Merphos

FUNGICIDES - FOOD
  EBOC
  Benomyl

DISINFECTANTS -  DEODORANTS
  Safrole
February 15, 1977
March 15, 1977


March 15, 1977



March 15, 1977
March  .15,  1977
 March  15,  1977
 March  15,  1977

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GRAIN FUHIGANTS
  Ethylene Dibronide
  Ethylene Oxide
	Carbon Tetrachloride

HERBICIDES - WEED CONTROL
  Monuron
  Cacodylic Acid and its sodium salt
  Oisodium Methanearsenate (OSMA)
  Monosodium Methanearsenate (MSMA)
  Calcium Acid ilethanearsonate
  Monoammonium Methanearsonate (MAMA)
  Amine Methanearsonate (AMA)
  2,4,5-T and related compounds

FUNGICIDES - NONFOOD
  Cadmium
  2,4,5-Trichlorophenols
  10,10'-Oxybisohenoxarsine

SOIL FIJMIGANTS
     April 1,  1977
  08CP
  PCNB

INSECTICIDES - FOOD
  Oimethoate
  Carbaryl
  Trichlorfon
  ฐerthane
  Rotenone
  Calcium Arsenats
  Copper Arsenate
  Lead Arsenate (Standard)
  Lead Arsenf.te (Basic)

INSECTICIDES - NONFOOD
  Paris Green
  Sodium Arsenite
  Phenarsazine Chloride

INSECTICIDES - HOUSEHOLD
  DDVP
  Piperonyl Butoxide
April 15,  1977
     April 15, 1977
     April 15, 1977
     May 1, 1977
     May 1, 1977
     June 1, 1977

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                       RPAR'S ISSUED

CHEMICAL                                 DATE

Kepone                                   VI9/76
Chloroform                               3/24/76
Chlorobtnrilate                          5/14/76
Endrin                                   7/19/76
BHC                                      10/12/76
Strychnine                               11/22/76
Strychnine Sulfata                       11/22/76
1080                                     11/22/76
1081                                     U/22/76

     CHEMICALS RETURNED TO REGISTRATION DIVISION

CHEMICAL                                 SATE

Picloram                                 3/21/76
Sperm Oil                                11/15/76

         VOLUNTARY CANCELLATION - SECTION 6(a)(l)

CHEMICAL    '                             DATE

OMPA                                    • 5/20/76
Strobane                                 6/18/76
Aramite                                 Pending
Chlorvnil                                Pending
Capper  Araenite                          Pending

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FIFRA
        BE
        office
        pesticide
        programs
        march 7,1977

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                     FI.FKA:   IMPACT ON THK  INDUSTRY

                           TAI1LE OF CONTENTS


INTRODUCTION  	  p.  I

A.  PART I
  AVAILABILITY OF  DATA  FOR
   USE AND DISCLOSURE	  p.  3

  1.   Background	  p.  A
       a) Patent  law considerations  	  p.  4
       b) Patterns  of  pesticide
           development  &  marketing  	  p.  5
       c) Early regulatory  practices
           and assumpt ions  	  p.  6
       d) Development  of  the  present
             statutory  provisions  	  p.  8

  2.   Issues  Requiring  Resolution  	  p.  9
       a) What safety,  efficacy,  and  environmental
           chemistry data should  be  available for
             use by competitors  under  FIFRA? 	  p.  9

       b) What safety  and efficacy  data  should
           be available for examination  by
             the general public?  	  p.  11

       c) Should  information concerning  the
           impurity content  of  technical-grade
             pesticide  chemicals  be  available for
              use  by prospective  competitors and
               disclosure to the  public?  	  p.  12

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B.   PART II
    DATA VALIDITY 	  p.  15

  1.   Background  	  p.  16
  2.   Pending Decision  	  p.  18
  3.   Two Basic Options  	  p.  18
  4.   Agency Pos it ion  	  p.  20
  5.   Specific Treatment of
       Classes of Applications  	  p.  21
  6.   Potential Congressional Action  	  p.  22

C.   PART III
    OTHER  IMPACTS  	  p.  23

  1.   New  Product R&D  	  p.  23
  2.   Integrated  Pest  Management  	  p.  24
  3.   Application Technology  	  p.  27
  4.   Child  Protective  Packaging  	  p.  27
  3.   Users  & Applications  	  p.  28

D.  APPENDIX
     STUDIES 	  p.  29

E.  FOOTNOTES  	  p.  32

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                     FIFRA:  IMPACT ON THE  INDUSTRY

                               INTRODUCTION
     The Federal Insecticide, Fungicide,  and  Rodenticidi?  Act  (FIFRA)
regulates all pesticides marketed  in  the  United  Stntes.   Statutory
and regulatory requirements of  the  law  naturally affect  the  industry
which manufactures and distributes  pesticide  products.  Congress has
expressed interest in just how  the  administration of the  FIFRA
is impacting the industry  as a  whole, and  particularly  the small
businessmen  involved  in  the pesticide distribution chain.  This
paper addresses this  Congressional  concern,  and  will discuss  the
major impacts of the  legislation  since  the 1972  amendments to date,
especially those affecting the  competitive atmosphere in  the
pesticide industry.

PROFILE OF THE INDUSTRY

     Over 1.4 billion Ibs. of  pesticide are produced each year,
encompassing some  1400 active  ingredients.  These 1400 active
ingredients  are contained  in  approximately 2500  technical products,
which are in turn  formulated  in approximately 40,000 end-use
products.

     About 400 registrants produce technical material in a given
year which is purchased  and  formulated  into end-use products
by about 4200 registrants.  Some manufacturers of technical material
also formulate their  own end-use products.  Some ^0% of  the active
pesticide producers  depend upon the other 10% for supply
of the  active  ingredients.

     The  industry  can be divided into two groups: those  who gather
their own data,  and  those  who rely on data developed by  others.
Almost  all data  developers are large companies  which can  afford  the
long-term  testing  required under the Act.  The  bulk  of the long-term
data which  form  the  basis for all these registrations is  developed
by the  approximately 30  companies which contribute  to innovative
R&D  in  pesticides  in the U.S.   Most of these  are  large,  multi-product
firms  for  which  pesticides comprise less  than 20%,  and  in some  cases
less  than  1%,  of  their total  sales.  Most  formulators are small  firms
which  lack  the  resources necessary to perform the  required tests.

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                               -2-
RELEVANT ISSUES

     The registration regulations  and  guidelines  impose  costs throuch
testing requirements; this overall  impact  has  been  considered in the
preparation of the  regulations  implementing  the  reeistration, reregis-
trat ion, and classification  regulations,  and  a cost  impact  estimate
of the  proposed  guidelines was  published  in  the  Federal  Register
on August 22,  1975.  This  issue  is  discussed  briefly in  the Appendix.
However, the primary purpose of  this  paper is  to  address the two
major issues affecting  the ability  of  firms  to register  products
and the amount of  competition within  the  industry:

     Availability  of Data  for Use  and  Disclosure  — to what extent
can and should data developed in support  of  registration be shared
among registrants  and available  to  the public  (this issue centers
on Sections 3(c)(l)(D),  3(c)(2)  and 10 of the  Act).

     Data Validity — what  is the  quality of the  data on file with
the Agency, and  can an  applicant receive  a registration for a
product identical  or similar to  one already  on the  market without a
validation of  the  entire data base.

     These two  issues are  discussed at length in  I'.-irts  I and II of
the following  paper.  Other  impacts of the F1FRA include areas
where competition  could be either  stimulated or impaired by EPA
actions:  research and  development, integrated pest management,
application equipment and  techniques,  packaging,  and application
(commercial vs.  private applicators).   These are discussed  in
Part  III.  Results of some recent  and on-going studies  are  summarized
in the  Appendix.

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PART I
AVAILABILITY OF DATA FOR USE AND DISCLOSURE
      Formulators of end-use products  desire to purchase Ingredients
 at reasonable prices.   So long as a patent  covers an active
 Ingredient pesticide chemical, the developer controls the market
 and the price.  Once the patent expires,  however, the formulator
 could expect that other firms would begin to produce the chemical
 and thus the resulting competition would  lower prices.   For
 several years this was the pattern in the industry;  competitors
 obtained "me-too" registration for technical-grade chemicals*
 after the patents expired.

      The trade secrecy allegations recently raised by the data-
 developer firms have drastically  changed  this  situation.   Although
 a  formulator-applicant who plans  to use the technical-grade
 chemical sold by the data-developer can still  obtain registration,
 a  formulator who wishes to obtain technical-grade material  from a
 different source will  be stymied  because  his technical-grade  source
 will be unable to furnish him access  to the necessary data and
 he will not be able to obtain a registration.   Thus,  an essential
 question is whether the data developer firm should be able to
 control the market after his patent has expired by denying access
 to the data he submitted.


    Equally controversial Is the closely related issue of  whether
 this data should be available to  interested members  ot:  the public
 under FIFRA Section 3(c)(2) and the Freedom of  Information Ar.t.
 How these issues are resolved will, to a  large  extent,  determine
 how the pesticide industry in this country  is  to be  structured,  how
 much the public will be allowed to know about  the possible risks of
 pesticides, and perhaps how much  research will  be carried out on
 new pesticides.

    EPA1s interest in a speedy resolution  of the various sub-issues
that make up the uae-of-data controversy stems from a desire to be able
to conduct the registration and reregistration programs in an efficient
manner, and to shift Agency resources  now occupied with use-of-data
matters to more environmentally-oriented  tasks.
 *  The basic  chemicals  sold  for manufacturing  u.se  nrr>  offer  referred
 to as technical-grade  chemicals,  and  normally contain some  amount
 of impurities,  ranging from less  than 1%  to,  on occasion,  207  or
 more.   The  Impurities  are present because of  the  high cost  nm!
 technical difficulty of producing commercial  quantities  of
 active  ingredient.

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                                    -4-
     This Agency believes that  the issues should be resolved by
 Congress.   This discussion  is  Intended  to describe how the controversy
 arose,  and  to indicate  likely  outcomes  in terms of the amount of
 competition (and  the  range  of  public disclosure) with or without
 legislative changes.                                                    '
i                                                        ,
 BACKGROUND

     The controversy has arisen because  of the  interaction between
 the patent  law, the patterns of development  and marketing of  pesticides,
 the various provisions  of FIFRA bearing on use and disclosure of data,
 and the changes in data requirements that have occurred.

     Patent  law considerations.

     A patent may  be  Issued  to  cover a newly-discovered chemical,
 a newly-discovered use  for  a previously-known  chemical,  or  a  new
 nethod for  producing  the chemical.   New chemicals  and new pestlcidal
 uses are  the kinds of patents  with  which we  are  concerned here.

     A patent provides that  during the  17-year  period commencing
 with the  issuance of  the patent, no one other  than the patent's owner
 can "practice" the Invention without the owner's permission.  The
 owner nay license others to practice the invention.

     After the 17-year period  expires, the patent law provides no
further protection; any firm can practice the invention, without
needing the prior consent of the patent-holder.  This does not
necessarily mean that the patent owner has no remaining advantages;
he may have acquired valuable  "know-how" that he can still license,
and he may have acquired marketing  advantages due to his long
association with the product.   However, he can no longer prohibit
unconsented competition in  the market.
     Developers of new chemicals or new pesticidal uses  normally
 •take prompt application for patents, to avoid the possibility of  loss
 of rights through publication or independent invention by another.
 In the case of pesticide chemicals, the patent normally issues  well
 before the developer has established,  through long-term testing,  that
 the chemical is safe and effective enough to be registered under  FIFRA.
 Thus, there may be only 12 or so years of patent protection remaining
 when the initial FIFRA registration issues.

     The great majority of the important agricultural pesticides
 were patented between 1945 and 1965.  (Many of the products were
 developed as a result of military  research begun during World War II.)
 Patents on  many of the major  pesticides have thus  already expired, and
 •ore will expire  in  the next  few years.

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                                    -5-
    Patterns of pesticide development and marketing.

    Development of new pesticides is not easy.   Discovery of a
chemical which is both effective against pests  and adequately safe
for use occurs only Infrequently.  The research and development
costs are great, and must be absorbed by the sale of  successful chemicals.

    When a firm does develop a promising new chemical and obtains a
FIFRA registration, there is every reason for that firm to promote its
sale and use during the remaining period of patent protection.  The
firm will In most cases aggressively seek to develop  and have approved
new uses of the pesticide (on crops or pests not originally the subject
of registration).  Extensive advertising of the product is common.

    A technical-grade pesticide chemical normally cannot be applied
directly for pest control; it must be dissolved, diluted, or otherwise
formulated into a product which is safe to the applicator, effective
in pest control, and adapted to desired methods of application.
The pesticide's developer may choose to formulate the chemical into
end-use products hiaself; he may decide not to engage in formulation,
instead reaping his profit from sale of the technical-grade pesticide
to firms specializing in formulating end-use products; or he may
choose to do both.  Likewise, the patent-owner may choose to license
other firms to manufacture and sell the technical-grade chemical.
Each of these decisions will be made on the basis of profit maximization.

    However, each technical-grade product which is to be sold in
commerce (by the developer or his patent licensee), and each formulated
product, must be separately registered under FIFRA.  Each person who
seeks registration must demonstrate that the product he will offer for
sale is safe and effective.  Unless formulators and license-seekers
can obtain FIFRA registration for such products, neither patent
licensing nor sale of technical-grade product will be feasible.
Thus, the patent owner has a powerful incentive to encourage these other
firms to use whatever data is necessary for the registration of  their
products.

     Once the patent expires, however, everything changes.  There are
•any firiป which might find it economically attractive to commence
production of a technical-grade product on which the patent has  lapsed,
and to sell it in competition with the original developer.  Because
these firms often do not maintain research operations, or have other
cost advantages over the firms who do,  they could  in many cases  under-
sell the original developer.  And all things being equal, the  formulators
would prefer to purchase the lower-priced technical-grade chemical.

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    These potential competitors cannot enter the market until they
 can obtain  FIFRA registration  for  their proposed products.  And there
 is  absolutely  no incentive  for the developer to consent to the use of
 his data for supporting  these  competitive registrations—instead,
 the incentives poinฎ  in  the opposite direction.  Indeed, after patent
 expiration  the chemical's developer may desire to curtail whatever
 competition already exists  in  the  technical-grade market  (from those
 firms which were the  subject of patent licenses granted earlier);
.On  the other hand,  the  developer  has no reason to attempt to curtail
 the number  of  registrations of formulated  (end-use)  products, for each
 formulator  represents an existing  or potential customer.  The developer
 merely desires to  have control over the supply of the  technical-grade
 chemical.

     It is  perfectly understandable that a  developer  firm would
 desire to  lengthen the period  of  exclusive control of  production  of
 the chemical  beyond  the  17  years  the patent  law allows.   This may be
 especially  true when  it  is  remembered  that a portion of the  17-year
 period may  have been  lost to pre-registration  testing.

     One can equally  easily  understand  the  lack of enthusiasm over
 this  kind  of  behavior on the part of the developer's potential
 competitors,  those who desire  to  enter the technical-grade market.
 From their  standpoint, the developer has obtained his  due reward  under
 the patent law; now  he wants to  start  all  over in reliance on  a different
 kind of protection,  that which can be  obtained by denying access  to  the
 test data required for FIFRA registration.   If a prospective competitor
 can be required to perform duplicate  tests as  a  condition of market
 entry, in most cases  the potential profits will not  justify  the expense
 of this duplicative  testing and the developer  will  retain control
 over production and price  levels.

     Early regulatory practices and assumptions.

     Some of today's  problems concerning use  of data can be  traced to
 the practices and attitudes developed by both industry and  Government
 during  the period prior to  the 1972 amendments.

     The system of registering each product individually developed
 under the 19A7 FIFRA, at a  time when most  of the important  agricultural
 pesticides were still protected by patents owned by the major producing
 firms.  For the reasons noted earlier, these firms  were anxious  to
 maximize production and use of their patented technical-grade  chemicals  ,
 and many registrations were issued for formulated  end-use products
 containing these chemicals.   It became routine practice for developer
 firms to allow formulator  applicants to rely on the data already on
 file concerning the composition of the technical-grnde chemical.

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(This composition data was not publicly disclosed by USDA, which
treated it as trade secret.)  USDA officials also routinely
considered the other data (that pertaining to safety and efficacy)  in
Support of formulator applications, without authorization of the
technical-grade chemical's developer.  This is understandable in the
context of the times, because it normally would have been safe to
assume that the data developer was anxious to have the formulated
product registered, and to have the formulator as a customer.  Moreover,
during the early years of administering the 1947 FIFRA, the testing
requirements were not nearly as stringent as they became starting in
the raid-1960's.  Thus, the data barrier would not have been formidable,
even if the data developer objected to other firms' use of existing
data.

     But as time went on, two things changed:  long-term testing
requirements were Imposed, and the patents began to expire.  By
the early 1970's, firms which had held the patents could see that
their control over production would soon expire.  These firms
suddenly became very concerned about the use of their test data
and composition statements by EPA in support of other firms'
registrations.

     EPA (like USDA before it) had continued to process registration
applications on the assumption that it was proper to rely on any
teat data in its files.   (The 1947 FIFRA, after all, made no mention
of this practice, speaking only of the confidentiality of the formulas.)

     In fact, under the 1947 FIFRA, products were routinely registered
without any scrutiny of the underlying data, if there already existed
a product registered for  the same use patterns.  Other prevalent
assumptions at the time were also  involved.  One was that the potential
hazard from a  pesticide was associated only with the active Ingredient
of a product,  not with the accompanying  impurities.  This led to the
Idea that if one firm's technical-grade  product containing a particular
active ingredient was safe, so was another firm's  technical-grade product
containing the same active ingredient.

     Application of these various  assumptions  ultimately  led  to  the
registration of various technical-grade  products made by  firms  other
than the original developer, both  those  holding patent  licenses  and
those which entered the market after the patent had expired.  Many
of these "me-too" reaistrations of technical-erade  products  now  exist;
the  registrants have never  performed their own tests  on  these products.
All  these products will be  subject  to  fresh  examination  at  reregis-
tratlon.

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     Development of the present statutory provisions.

     In 1971-1972, during the debate over the amendments  to FIFRA
then under consideration by Congress, the National Agricultural
Chemicals Association (NACA) urged adoption of a provision that
would have required the data developer's consent before test data
could be used to support the registration of a pesticide product.
NACA argued that the then-current EPA practice of allowing applicants
to rely on data developed by the original registrant was causing
pesticide firms to abandon their research and development programs.
NACA argued that this trend would be accelerat ed by the public
disclosure provisions of the amendments (which ultimately were enacted
without change as$3(c)(2) ).  NACA did not oppose the disclosure
requirements, but argued strongly for the "exclusive use of data"
approach.  The bill which passed the House in late 1971 contained
an "exclusive use" provision, and the same approach was initially
favored by the Senate Committee on Agriculture and Forestry.
However, the Senate Committee on Commerce strongly opposed it,
arguing that "exclusive use" would grant the original data developer
a practical monopoly for a period extending well beyond the 17-year
patent term.  The two Senate committees arrived at a compromise  that
became law as ง3(c)(l)(D).  It provided that test data was to be
available for use by all applicants  (mandatory licensing) , but required
those applicants who had not obtained the data developer's consent to
offer to pay the developer reasonable compensation.

     In 1975, $3(c)(l)(D) was amended to provide that  the  limitations
it placed on the Administrator's consideration of data did not apply
to data received by EPA  (or its predecessors) before 1970.

     The 1972 amendments made both the  public disclosure provision,
ง3(c)(2), and the mandatory licensing provision,ง3(c)(1)(D), subject
to one crucial  exception:  EPA could neither disclose  to the public,
nor  consider in support  of another firm's application, data which
"contains or relates to  trade secrets or commercial or financial
information obtained from a person and  privileged or confidential."

     It is the  meaning of this "trade secrecy" exception,  and the
interaction of  it with $3(c) (1) (D) and  ง3(c)(2), which has  served to
fraae  the present  controversy.  Congress did  not  define what kinds of
data were to be treated  as  "trade secrets."

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                               -9-
The
             FIFRA amendments  also put an end to the practice of
sssr ฃ
relied on.
     The large pesticide producers (the  firms which  generated most
z ฃE r ^ ssi ™!^ ^r^rt^
passes any and all test data which the firms have ปซ' voluntarily
snsi
 the reasonable compensation plan of 53(c) CD (fl) •

      The  data developers' primary concern appears  toj>e control  over
 the domestic technical-grade market.  However  they have opposed not
 only u7e  of data by other firms, but  also disclosure of the data to
 tne p^lic.  The sole argument against public disclosure of teat
 data! insofar as EPA is aware, is the possible usefulness of such
 data to firms seeking to register products in other  countries.
  (ToKicity data  is apl to be most useful  in foreign regl ^^
 Data on efficacy and environmental chemistry may be of little use,
 because of the  different weather and soil conditions,  pest  strains,
  crorvarieties , and application methods  prevalent in other  countries.)
 ฃ2. ฃ value of tSs data  for purposes of preserving  market .shares
  in foreign countries must  be  balanced against  the right  of  th*8
  country's citizens to  critically  examine the toxicity data and  other
  information concerning pesticides used here. The Toxic Substances Control
  lit It ATT" *• jjLtlfl. ^ซdLi!ซซ t**t health  ซnd Safety data on marketed
  ^^Cfc 9 *ป -^^^^^^^•"*
  products must be  publicly disclosed.

  ISSUES REQUIRING  RESOLUTION

      1.  What safety,  efficacy, and  environmental chemistry data
          should be available for use by competitors under FIFRA?

      The kinds of  hazard- related data that  must be submitted or cited by
  an applicant for  reregistration or new registration include short-term,
  acute  toxicity studies; 90-day subacute toxicity  studies; and often
  long-term (normally  2-year) feeding  studies designed  to show whether
  prolonged dietary exposure to the product produces cancer or other
  adverse  health effects.  Such studies are performed using rats, mice,
  or other  test  animals. In some cases, depending  on the proposed use

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                                    10
patterns, studies must be done of the effect of the pesticide on fish
and wildlife, and on the "environmental chemistry" of the product (its
behavior in soil, degradation time, etc.).  Efficacy studies, showing
that the pesticide is useful against pests but not unduly harmful to
'desirable life forms, must be furnished.  Finally, in the case of
products for use on agricultural commodities, or to which livestock
or poultry will be exposed, studies must be performed dealing with
such things as how the chemical is metabolized (chemically changed)
by food plants or feed animals, studies of pesticide residues which
result from the product's use, and studies showing the waiting periods
which must be eaployed after use of the pesticide to avoid unacceptably
high pesticide residues in food plants, meat, poultry, milk, or eggs.

     EPA has taken the position that it was Congress* Intent to
make this information subject to the mandatory licensing procedure
of$3(c)(l)(D), and that Congress did not therefore  Intend that data
of these types should be regarded as trade secrets.  I/* However, most
of the major pesticide firms have commenced litigation alleging that
this data is trade secret.  If these firms are successful, and the
test data is held to be immune from the mandatory licensing provisions,
true competition in the technical-grade pesticide market in the future
will be greatly diminished.  The expense and delay incident to duplica-
tlve testing may effectively preclude market entry;  only those firms which
"own" the data, or are able to come to  terms with the data owners and
obtain permission to rely on the data, will be able  to either enter or
stay in the market.

     If Congress desires not to promptly encourage competition,
it need do nothing; the present law will continue in effect, and the
cases will wend  their way through the courts.  During the year or more
that the litigation will require, EPA will be able to register only
those products which have the blessing  of data developers.  EPA anti-
cipates  that it will prevail in the litigation, but  this result cannot
be  guaranteed.

     On  the  other hand, if  Congress desires  to resolve the matter
promptly in  favor of increased competition  in the production and
sale of  technical-grade pesticides on which  the patents have expired,
it  should  amend  FIFRA ง3(c)(1)(D) by deleting the prohibition on
the Administrator's consideration  of trade secret  data.  This will
facilitate competitive registrations, whether or not the data may
be  publicly  disclosed. 2/
 *   Footnotes are found at  the end -of  the  paper.

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                               -11-
     2.   What safety and efficacy data should be available for
         examination by the general public?

     This Agency firmly believes that Congress,  in enacting
FTFRA ง3(c)(2) in 1972, intended to make it possible for interested
members of the public to examine the actual data which is submitted
in support of the safety and efficacy of registered pesticides, and
therefore to encourage public understanding and criticism of Agency
decision-making as well as to increase the knowledge of risks and
benefits of pesticide use.

     Public disclosure to supporting test data is fully consistent
with the licensing-and-compensation scheme of ,ง3(c)(1)(D).  Disclosure
of data does not in any way diminish the right of a data developer
to be paid reasonable compensation for the use of the data by another.
In fact, by allowing a prospective user of the data to examine itp
disclosure of the data would facilitate data-sharing and would make
more likely the negotiation of acceptable compensation terms.

     Some have suggested  that only summaries of this data should be
disclosed.  This would not assist those Interested  in assessing the
validity of the data; it  is the detailed data which must be
examined if public  scrutiny is to serve any useful  purpose.


     EPA1 s position is that trade secret status should be routinely
afforded only to truly secret information concerning manufacturing
processes  (and, perhaps,  to the list of deliberately-added inert
ingredients in formulated, end-use products).  The remaining data
needed to support a registration, including the data describing
the toxlcity of a product, its environmental behavior,.and its
efficacy, should be routinely available to the public once registra-
tion has been granted. This approach would be consistent with  that
recently adopted under the Toxic Substances Control Act.


     The procedural aspects of data disclosure are nearly as
important as the substantive issue of which data may be disclosed.
The present law, which requires disclosure of all data except that
which is trade secret (but does not define what data is trade secret) ,
encourages Judicial review.  At present, most of  the large data-
developing firms are engaged in  litigation seeking  to enjoin
EPA from disclosures of data.  Some of  these  firms  are arguing
that they  are entitled  to a complete evidentiary  trial in
court to establish  the  facts concerning the  confidentiality uad the
val'ie of each item  of data in question.  It  is  EPA's position  that
the data is publicly available as a matter of law,  i.e., that  the
statute, properly construed, requires disclosure  of the data.  However,
if EPA does not prevail on that  issue,  full evidentiary hearings will
be the result whenever  EPA proposes  to  disclose any item of data  against
the data developer's desires.

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                              -12-
     If Congress desires to clarify the matter in favor of disclosure,
It should amend FTFRA 10(b) to state that all data pertaining to the
properties, safety, behavior, or efficacy of a registered pesticide
is publicly available, except for those specific portions of an item
of data identified by the submitter as information which, if disclosed,
would divulge details of secret manufacturing methods or quality con-
trol procedures having competitive value to the data developer.

     3.  Should information concerning the Impurity content of
         technical-grade pesticide chemicals be available for use
         by prospective competitors and disclosure to the public?

     Some large data-developing firms have recently argued that
toxiclty test data pertaining to one firm's product (even if
it is not trade secret) is simply Irrelevant, in a scientific sense,
to the question of the safety of another firm's product containing
the same active ingredient, because of the possible presence in
the second product of toxic impurities.  Thus, they allege,
Firm B should be required to perform a complete battery of toxicity
tests on its product, and should not be granted registration on the
basis of tests on Firm A's product.  If accepted, this argument
would tend to severely limit competition in the technical-grade
pesticide market.

     Traditionally, toxicity testing has focused on the possible
adverse effects of the pesticidally-active ingredient which composes
the bulk of a technical-grade chemical.  (Most toxicity testing is
performed using technical-grade chemical as the substance fed to
test animals.)  However, this Agency has become increasingly
concerned about the possible adverse health effects attributable to
the impurities that are present In technical-grade chemicals.
These toxic effects may be either of an acute or chronic nature.
Certain dloxln compounds (present as impurities in some herbicides
unless very careful manufacturing precautions are taken) are among
the most acutely toxic substances known, and also have chronic
adverse effects.   Some nltrosamlne compounds, present as impurities
in various pesticide products, are highly potent carcinogens, and
there are other highly carcinogenic pesticidal impurities.  It  is
likely that this concern with Impurities' toxicity will  continue to
grow as more becomes known about their presence in pesticides.

     Because of this concern, EPA has concluded that in  the future
its registration decisions must take into account the toxicity  of
possible Impurities that may be present  in marketed quantities  of
pesticides.  Applicants will be required to state the maximum
limits for the various impurities that they will allow  to be
present  in marketed products, and the Agency will, base  its health
evaluations in part on the impurity  limits  the applicant furnishes.
Enforcement action will be taken against firms whose marketed
products are found to contain impurities in excess of the limits
the applicant prescribed in  Its application.

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     The various toxicity studies required for registration differ
in their ability to demonstrate the toxicity of impurities.  A
highly acute toxic impurity may demonstrate its effects even
though It is present in a test substance at very low concentrations.
On the other hand, the long-term animal feeding studies (especially
studies designed to show the possible carcinogenicity of the
pesticide) probably are only marginally useful in demonstrating the
safety of impurities.  For one thing, these tests are, for reasons
of economy, designed to produce evidence of possible toxicity by
use of relatively small "test populations" of animals; to do this,
It is necessary to provide the test animals very high daily
dosages of the technical-chemical test substance.  But the test
substance Is, of course, mostly comprised of the active ingredient.
Impurities are often present In the test substance at very low
concentrations, and therefore a finding that tested animals showed
no chronic adverse effects may demonstrate very little about the
toxicity of the impurity even though it says a great deal about
the safety of the active ingredient.  Higher dosages of the
Impurity might demonstrate that it is indeed chronically toxic.

     Moreover, any given sample of a technical-grade chemical,
including the lot used as the test substance in long-term  feeding
studies, may happen to be free of impurities that would be found
in other lots of  the same firm's technical-grade product.  In
short, a "negative" long-term feeding study Is much more persuasive
of the safety of  the principal active ingredient than of the
innocuousness of  the various possible impurities in the marketed
product.

     Limitations  on availability of  test  facilities, as well as
cost considerations, make impracticable  the theoretically-desirable
requirement of complete  testing of impurities.  FPA's hazard
evaluations of  impurities will sometimes  have  to be. made in  the
absence of hard data,  and will have  to be based  in some cases  on
the presence or absence  of  chemical  characteristics known  to be
Indicators of hazard.

     Assuming  that,  using modern hazard  criteria and  evaluation
methods,  EPA has  concluded  that Firm A's technical-grade product
 (with  its  certified  impurity  limits)  is  safe  enough  to warrant.
registration or reregistratlon, how  should EPA respond when  a
potential  competitor,  Firm  B,  requests  registration  for  its  own
technical-grade product  containing  the  same active  Ingredient?
As  already noted, Firm A may  argue  that  EPA should deny
registration until  Firm  B has thoroughly tested  the  new  product.
There  is  some  merit  to this argument,  if one  assumes  that  Firm B's
product will  contain more  or different  impurities  than Firm A's.
A new battery  of  tests Just might  demonstrate that Firm  B's
product is more toxic, because of  Impurity differences.

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                               -14-
     There are, however, counter-arguments, aside from the obvious
limiting effect on competition that required new testing would have.
First of all, Firm A's own product may contain Impurities that were
not present In the test substance used for Firm A's tests; thus,
the logic of the alleged need for testing by Firm B would lead one
to conclude that Firm A must also perform a complete new set of
tests on his current product.

     Second, it will be remembered that the safety decision
concerning Firm A's product was based on an EPA evaluation of the
likely hazard of all the Impurities that Firm A indicated might
be present in its product as marketed.  If EPA could be assured by
Firm B that Its product's Impurity levels would fall within the
limits already found safe with respect to Firm A's registered
product, the hazard decision would be easy to make.  However, Finn
B cannot easily make this certification unless it is able to
ascertain what those approved limits are and whether its quality
control methods allow it to conform to those limits.

     Under the present  law, EPA cannot routinely disclose
information on the formulas of products.  Such formula Information
would be available to Firm B only in the event that Firm A, when
queried, is unable to demonstrate that the formula is In fact
"secret" or unable to show likely competitive harm in the event of
the formula's disclosure.  Each such determination must be made
individually and can be appealed in court, where Firm A would
probably be entitled to a full evidentiary hearing.  Because of
the startling advances  in analytical methodology, most
commercially-useful formula information is probably not truly
"secret" anymore; but establishing this in court can be an arduous
process under present law.

     Accordingly, If Congress desires to encourage competition  in
the production of technical-grade pesticides, it should amend
FIFRA SlO(b) to make clear that, as a matter of law, EPA may
routinely disclose to the public the Impurity limits which a  firm
has stated may be present In commercial quantities of Its
technical-grade product (or at least those that pertain to any
product no  longer protected by a U.S. patent).

     EPA believes that  requiring disclosure of  impurity content
would  also  serve  the general public's interest  in  knowing which
chemicals reach the environment as a result of  pesticide  use.

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                               -1 5-

PART II

DATA VALIDITY

     Before registering  a  pesticide,  the  Administrator  is  required under
J3(c)(5) of the Act  to  find,  among  other  things,  that  the  product  will
not pose "unreasonable  adverse effects"  on  man  or the  environment.  In
order  to apply this  standard  prior  to  registration or  reregistration,
the Agency must determine:

        how much  data  are  required  in  order to  make a S3(c)(5) finding;

        to what depth  should  those  data  he  reviewed prior  to a
        reregistration  decision;  and

        in registering  a product,  is  the Administrator making a
        determination  that the  active  ingredient  is not posing an
        unreasonable adverse  effect,  or  that the  individual
        product —  considering  that the  environmental  burden of that
        active  ingredient  is  actually  posed by  the aggregate of all
        products  on the market  — will pose an  unreasonable adverse
        effect.   In other  words,  should  the Agency consider the whole
        hazard  of the  active  ingredient, or consider the  incremental
        hazard  of the  product for which  registration is pending.

     All  these  considerations are important to  the competitive situation
among  pesticide  registrants,  and particularly to pesticide  formulators
who do not  submit their own data to support product registrations.
With full  reregistration,  and the accompanying  data review, being
stretched  years  into the future, the Agency is at  a critical  juncture
in  deciding  how to  treat applications for  pesticides which  utilize  active
ingredients  that  are also found in products already on  the  market.

      If,  on  the  one hand,  the Agency requires all  the  data  on  the active
ingredient,  the  formulator may find it  impossible  to comply,  since  some
of  the data  may never  have been generated  by any  registrant.   Meanwhile,
since  the  Act contemplates that registrants already on  the  market should
have  time  to gather missing data, they  enjoy a distinct competitive
advantage.   Even if a  formulator can cite  data submitted  in the  past,
 it  may be  that  EPA will be unable  to validate the  data  for  reregistration
purposes  for three or more years.  Because  of the  Agpncv workload, it
would  not  be reasonable to take the data in question  out  of its  scheduled
review sequence;  but neither is it desirable to  inform an applicant
that  his  application cannot  be processed for three  years.   From  his
 standpoint that would  be unreasonable.

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                               - h-

     On the other hand, the Agencv could  permit new  registrations  of
products utilizing active  ingredients  already  on  the market  until
such time as all products  containing  the  active  ingredient  are
scrutinized during the reregistration  process.  This option  would
favor a competitive situation within  the  industry;  further,  it  can
be argued that this option would not  jeopardize environmental  quality
in that it is the active  ingredient as  a  whole from  all  sources of
its use which is or is not posing an  unreasonable  adverse  effect,  and
thus all products containing  that ingredient  should  be  evaluated at
the same tine.  The legality  of the latter  option  has  been  questioned
by one Congressional Committee.  The  Agency is pursuing  development of
an approach incorporating  conditional  registration.  This  consideration
is at the heart of the resolution of  the  so-called "double  standard"
problem: should products  registered under the  1947 Act  have the advantage
of remaining on the market while their  data base  is  being  verified,
when identical or similar  products are  denied  access to  the market-
place until the 1972 FIFRA standards  are  fully met.   Congressional
affirmation of the Agency  position would  help  break  the  registration
logjam.

BACKGROUND

     Why has data validation  become  an issue  and  what  does it mean
in terras of competition?

     The original reregistration  program  was  based on  the  assumption
that data on  file were  accurate  and  reliable  and  had been  reviewed
internally  in a  thorough  manner  according to  still valid scientific
principles.   The  section  3 regulations thus made  a distinction  in
the data requirements  for new registrations and reregistrations in
order  to ease the administrative burden of reregistering 30,000+
pesticides  (by October  1976).  While  a full range of data would be
necessary  to  support  ah  application  for a new registration, a much
more  limited  range of  data would  be  sufficient to support an
application  for  reregistration.   It  was  felt  that #ivpn a product's
prior  registration  and  its use  history,  the ง3(c)(5) safety finding
would  be adequately met  until full  compliance with the data
requirements  could be  achieved.

      To  ensure  that  reregistration  would proceed  in an orderly  and
systematic  manner,  products  were  grouped  into hatches on the basis
of  similarity of  formulation and  broad use patterns.  At a  scheduled
time  an  entire  batch  would be called  in  for reregistration.  In
addition,  active  ingredients were  assigned to one of  five  categories
based, on a  review of  data to determine simply whether data  existed to
meet  the data requirements:   Category I,    all data  requirements filled;
Category  II,   long-term data gaps;   Category  III, short-term data gaps;
Category  IV,   rebuttable presumption against  registration  (RPAR)  (presume
not  to reregister);   Category V,   unreviewed.  Because of  our  assumption
that  the data were  generally reliable, the review did not  actually

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                               -17-

exaraine the quality of the data on hand.   A  preliminary  call-in schedule
for the batches and a list of active  ingredients  in  the  five  categories
were published  in the Federal Register  on  February  17,  1976.       . '
                                                              1 '    • :i N
     However, as reregistration began,  it  became  incrf.-isingly. apparent.
that the distinction between data requirements  for  new  registrations
and reregistrations was  creating  serious  inequities  for  producers of new
products.  Registered products could  be conditionally reregistered and
marketed pending the completion of long-term testing but identical new
products could  not be registered  without  full submission of data, some
of which have not yet been developed.   To  alleviate  this situation to
some extent, the Agency  issued a  General  Statement  of Policy - Data
Requirements for Registration  in  the  Federal Register on May 27, 1976.
This notice provided  for the conditional  registration of new pesticide
products which  were  identical  or  substantially  similar  to currently
registered products  which  had  been reviewed  and found eligible for a
full or conditional  reregistration (that  is, products with no data gaps
or only long-term data  gaps).  Products not  identical or substantially
similar to presently  registered  products  still  required  the complete
submission of data prior to  registration.   Like full and conditional
reregistration, conditional  new  registration relied fundamentally on
the reliability of the  data  in Agency files.

     However, early  in  1976  new  information  came  to light which
questioned  the  assumptions of  the registration and  rerogistration
process.   Senate hearings, discussions  with  GAO and FDA concerning
the reliability of certain data  submitted to FDA, and a subsequent
preliminary  report of  an independent  toxicologist on a   sample
of pesticide data  raised serious  doubts about  1)  the adequacy
of the  testing  in  EPA files,  and  2)  the completeness of the  Agency's
own review and  follow-up.   Since  then,  in December  1976, the  staff
of the  Senate  Subcommittee on  Administrative Practice nnd  Procedure
has  issued  a report  stating that  the Agency has,  in  fact,  been
negligent  in  its  public  duty by  not  reviewing  all data  in  depth
prior  to  reregistration.

      In August  1976, reregistration  was halted because  the Agency
decided  it  was  noto necessary to  actually review the data  in  our
 files.   There  are  several important  consequences of  the Agency
commitment  to  this  review.

      .  The May  27,  1976, policy statment  is  basically inoperable,
because  all  products are back in Category V (unreviewed).   New
products  utilizing chemicals already on the  market  are  thus  not
eligible  for conditional registration,  since the supporting  data are
not  reviewed.

      .  Reregistration will take  far  longer  than  was  originally
 anticipated.    A recent   zero-based program analysis  indicates that,
 at  current resource levels, the  task will take 10  years or more.

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     .  It is no longer reasonable  to have different  requirements  for
registration and reregistration.   Policies which  would  have  worked
during a short transition period will  not be  equitable  in  a  lengthy
transition.   The removal of the distinction between  registration  and
reregistration requirements has also been recently  required  by a  recent
Federal District Court injunction.

     . Because of the  large amounts of efficacy  data which are on file,
considerable resources would have  to be  dedicated to complete  validation
of those tests.  EPA believes  that except  for public health  and
disinfectant type products, the user community  can  best judge
a product's efficacy,  based on local conditions  and  pest resistance.
Because of this and because a  manufacturer would  not find  it in his  best
interests to go to  the expense of  registering a product which  did not work,
public resources can most effectively  be  put  to  use  in  hazard  rather  than
efficacy evaluation of products other  than  public health/disinfectant uses.

        The length  of  time necessary for  reregistration and  the
complexities of handling  individual  registration  actions resulting
from the trade  secret  disputes have  led  the Agency  to the  conclusion
that a new approach  for  regulating pesticides in  this country is
in order.  Specifically,  Agency resources  could  best be utilized  if
devoted  to  intensively reviewing  technical  products rather than
end-use  products.

CURRENT  PENDING DECISION

     Currently  registered  products may remain registered ant! on
the market pending  completion  of  data  review  and  registration;
in this  respect,  they  are  not  seriously affected by data validation
problems.  Similar  new products  are  in a much more  difficult situation.
On the one hand,  we  could  ask  registrants of  new products utilizing
old chemicals  to  provide  all  required  data.  On the-other hand, we
could  just request  data  corresponding  to the  difference (e.g., new
target pest, new  site,  new method  of  application, new  formula, etc.)
between  the new products  and  those already on the market.  The choice
of one of these  two  general  options (or some  combination of each) will
have  a significant  effect  on  the  structure of the pesticide chemical
industry.

IMPACTS  OF  TWO BASIC OPTIONS

Option 1:   Require  full  data   submission or data  citation  for  every
application  for registration.

         For  individual pesticide  producers,  this means  that where
         long-term data gaps  exist new applicants will  not be  able
         to  register products   similar  or even  identical  to those  which
         current registrants  are selling for  several  years.  While
         current registrants  are able  to continue to  market  such

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                               -19-

        products  for up to  three  years while the data gaps are filled,
        there  will  be no data for a "new registrant" to cite and it
        will  not  be impossible for him to complete required tests
        should he be willing and  able to do so.

        For the industry as a whole, the requirement of full data
        submission  will, to a large extent, preserve the  status  quo.
        Those now marketing registered products will continue  to do
        so.  But  few new competitors, in particular  small  formulators,
        will be able to enter the market for at least  three years,  and
        probably much longer than that.

        Registrations for minor  uses will  be impeded.

        The total environmental  burden of  particular pesticide
        chemicals may remain substantially the  same  until assessments
        of their hazards can be  completed.  However, current  registrants
        are limited mainly by the elasticity of demand, and  their  own
        capital  formation abilities,  from  substantially increasing
        production  and  sales.  Thus,  the environmental  burden  of a
        particular  pesticide may be more directly  affected by marketing
        strategies  than regulatory  controls.

        On the other hand,  the approach  provides  the greatest  assurance
        that  each  product will be assessed for safety  thoroughly before
        entering market.

Option 2:  Generally require  full data  for new chemicals. However, for old
chemicals, require  only the  data pertinent to  the  incremental differences
between the new  product registration  and  those already on the market to
achieve conditional  registrations.   Products  thus  conditionally registered
would have to  meet  the  full  requirements  of the amended FIFRA when the
active ingredient  as a  whole  is  evaluated  during  reregistration.

      . "Double standard" would be removed; all products containing
        the  same active  ingredient  would  be treated fairly.

        Competition would  thus be served  in that  a barrier would be
        removed  for registrants  of "me  too" products and  other new
        products formulated with old active ingredients.

        The  interests  of  the  environment  can  be served in that
        a)  the environmental  burden of  the chemical may  not,  it
        can  be argued,  be  appreciably increased by encouraging
        competition for the existing market or by legalizing  minor
        uses;  and  b) the  decision as to the environmental safety or
        being posed can most  efficiently and  systematically be made
        on the chemical as  a whole.

        The  legality of such a conditional registration  scheme
        may  be open to question.  FIFRA does  not  specifically
        provide  for conditional  registrations; its  silence on

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                               -2 ri-
        ch is subject could be  interpreted  to  mean  that  the  Agency
        should not proceed in  this direction.

AGENCY POSITION

     The Agency believes  It  is  in  the  best  public  interest  to devote
its currently scarce resources  to  assessing  the  effects of  pesticide
chemicals from a  generic  standpoint  rather  than  laboriously processing
thousands of individual  product  actions.   This  approach,  would

     . focus attention  on the  broad  risks  and benefits  of any
       pesticide,  encompassing  all uses  and  all  formulations;

     . limit the  primary  data  compensation arena to registrants
       of technical, rather  than end-use,  products;

     . provide a  simple registration mechanism for formulators
       who  utilize an  already-registered technical material,
       in which only data pertinent  to the individual product
       which has  not already been  submitted  to support  the  technical
       registration would be required, which would thereby

     . free EPA reviewers from complex paper work and record
       keeping so that  resources could be best utilized  in
       assessing  the  larger  risk and benefits issues.

     Regardless of whether the Agency maintains the current
product-by-product approach, or adopts the generic chemical  approach,
there  will  be  a  transition period of many years before all data  are
validated and  reregistration is accomplished.  What to do with new
applications  during  this time is crucial to the competitive  situation
in  the industry.   Generally  speaking,  the Agency  subscribes  to the
philosophy  articulated  in the second option above, i.e., that  it  is
the  incremental hazard  which should  be assessed during the transition
period,  and that  registrants of like products generally  should be
treated  alike. Our overriding-concern will be to  answer  several
fundamental questions:

      . will the  product pose a risk additional  to  that posed
       by products already on the market?

      .  if  so,  are data available on the additional hazard?

      . has  an RPAR or   intent to cancel notice been issued
       on  the active  ingredient?

      .  is  there  a known  inert or contaminant problem?

      . will public health or the environment benefit by
        denying the product  access to  the market  place, or
       would denial simply  affect the structure  of the  industry?

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                             -21-

SPECIFIC TREATMENT OF_ CLASSES OF APPLICATIONS

     Application For New Chemical

     .  Generally, all data  required  by  Section  3  must  be present.

       — For exceptional circumstances  on  a  case by  case basis --
          in reliance on the chemical  structure of the pesticide,
          the exposure  expected  from use of the pesticide,  and
          short  term  indicator  tests —  a conditional  new registration
          may be granted where  one  long  term  study has been completed
          with negative  results  and  the  second  is underway.

     Application For Old Chemical,  Old  Use  Pattern
      ("ME-TOO")

     . Register  product  if  all  requisite data are submitted or cited
       (with appropriate permission or  offer  to pay reasonable
       compensation)  for active  ingredients not subject to an
       RPAR or  intent  to cancel  notice.

     . Provide  a conditional  registration when  long-term data  are
       missing,  so  long as  registrant provides  or cites short-term
       data (and offers to  pay  reasonable compensation  if  applicable)
       supporting  registration  of  product already on  the market
       which  is  not  subject to  an  RPAR or  intent-to-cancel notice.
       Full data requirements  will  have to be met by  all like  products
       at  the  time  of  reregistration.

     . Conditional  registration may be granted  if active ingredient
        is  an  RPAR  candidate,  since   the risk has  not been validated
        and  in  any  event is  not  greater than that  already being posed
       by  like  products already on  the market.

     Application For Old Chemical,   New Use Pattern

      .  Registration will be granted if all required datn ar<>
        submitted or cited  (along with permission  or offer  to  pay
        where  applicable).

      .  Conditional  registration will be  granted  if

        —  long  term data are missing but all short  t'jrm data
           are submitted or cited;

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                              _ '(X / —

       .  data supporting tht efficacy anc safety of the new
         use, i.e., the incremental difference between the
         already registered uses and the proposed new use,   '    '
         can support a S3(c)(5)  finding;

      .   if a food crop is added, pertinent data required  to  support
         a tolerance under the Federal Food, Drug,  and Cosmetic  '
         Act must be provided if a tolerance is not already
         established; and                                      '

      .   the active ingredient  is not subject  of an RPAR
         notice or notice of intent  to cancel.

     .  Products utilizing active  ingredients which  are  in  the RPAR
       process will be eligible  for  conditional registration  but
       the burden of justification  for the  ง3(c)(5) finding  for
       the use will bear more heavily on  the applicant.

     The Agency believes that this  approach would  be  conducive to
eliminating many of the current  regulatory  and statutory  roadblocks
to registrations as formulators  and  other new  registrants  of  products
utilizing chemicals already  in  use  could  enter the  market  on  the
same footing as old registrants.  This would eliminate  the "double
standard" by equalizing registration requirements  for  products.
containing the  same active  ingredient.                       • :

POTENTIAL CONGRESSIONAL ACTION                      ,        .   •  ;•
     The Congress  could  either  sanction or disagree with the Agency
position through a  specific  statement  in the law or the Committee
Report regarding Congressional  intent  on conditional registrations.
The Agency would welcome  discussion  and instruction in this area.

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                                -2*3-

PART III

OTHER IMPACTS

     The primary  impacts on  competition  of  FIFRA and  it?  administration
by EPA were dealt with  in  the  previous  two  sections.   Those were primarly
negative impacts, and ways  to  alleviate  those  negative effects were
described.   This  section describes  five  other  areas  where effects
can be  identified — on new product  research  and development, on inte-
grated  pest management, on  application  technology,  on child protective
packaging, and  on users and  applicators.

NEW PRODUCT R & D

     How has FIFRA  affected  new product  research and  development?  A
look at history shows  that  most new product research  and  development
has been done by  larger  firms.  Therefore,  although small businesses
are not presently a major  factor in the  innovation  of new chemicals,
it does not appear  that  FIFRA  has contributed  significantly to  this
situation.  3/

     Although  some  firms  have  left  the  pesticide research and
development field  in  recent years,  about an equal number have entered
the  field.  High  profits  and profit potential  have  kept  the  industry
interested.  4/  There  has been some trend  to  consolidation of  business
in the  larger  firms.   Since few small firms have ever been  in the  field,
however, this  trend is  making  very  little change in the  situation.
Chemical research and  development,  synthesis,  screening, production,  and
marketing  have  always  required some substantial size  for success.

     As suggested by studies conducted  by outside organizations  for
EPA  and  the  investment  community, 5/ as well as by EPA's own  contacts
with the regulated  industry, the pesticides industry  expects  that
opportunities  for innovators to be  fewer in number than  in  the  past,
but  that a big  success will be relatively more  spectacular.   In
addition,  the  industry will continue to build on its  existing research
and  development base with changes in use patterns and  formulations  of
previously-registered  products, and new chemicals within already
successful classes  of compounds.

     One  segment  of the industry, however, is adversely  affected by
 increasingly  stringent regulatory requirements  — thoso  firms currently
or  potentially pursuing products with inherent  limitations  on market
 size.   This  applies to pesticides  for minor crops, to biological controls
 (predators and pathogens),  and  to  such chemical  agents as  insect growth
regulators,  pheremones, attractants, repellants, antimetabolites and
 antifeeding agents.  Many of  these products are  attractive  from an
environmental  point of view because of  their  low volume  of  use,
 specificity of action to  a  small number  of species,  low  toxicity to
humans and other  non-target organisms,  and lack  of  persistence.  6/.

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                               -2'*-

But  to  determine  these  desirable  characteristics requires testing costs
of a magnitude  similar  to  products  with much larger production and
profit  potential.   The  Agency is  able to waive all or part of the 510,000
tolerance  petition  fee  if  the applicant can show financial hardship
or  if  waiving  of  the  fee would be in the public interest.  Considering
product development costs  running into the millions of dollars, it
cannot  be  expected  that waiving tolerance fees would be much of an
inducement to  potential developers  of such products.

INTEGRATED PEST MANAGEMENT

      Integrated Pest  Management (IPM) is ,in approach to pest
management that utilizes all suitable techniques and methods  in
as  compatible  a manner  as possible, to maintain pest population
at  levels  below those causing unacceptable economic or aesthetic
injury.  It usually employs a means of scouting or monitoring; use
of  "action thresholds"  to trigger treatment; consideration of  the
dynamic interactions among pests, weather, parasites or  predators,
and  costs  of treatment; consideration of a series  of strategies;  and
selection  of the most appropriate tools, with high  priority  given
to  long-term human health and environmental concerns.

      This  is an area where opportunity exists  for  the entry,  expansion
and  prospering of  small businesses.   The primary  responsibility  for
.the  development and  promotion of IPM  lies with  USDA, but  the Agency's
 actions could  encourage or discourage  the growth  of 1PM.   Therefore,
 it  is worthwhile to  examine  the  consequences  for  small  businesses
 and  competition from a growth  in IPM.

      Characteristics of the  IPM  Industry

      IPM  is a  knowledge industry.   It  operates  bv  col IfCf inyt and
 analyzing  information  about  crops,  pests  and  their interactions,  and
 providing guidance for  actions by  the  growers  or  managers of agricul-
 tural  crops, structures,  parks,  lawns,  rights-of-way,  etc.   Practi-
 tioners come by their  knowledge  via  long  experience in  the field,
 by formal  training (associate  degree  to  Ph.D.), informnl  in-house
 training  courses or  a  combination  of  these.

      There  is  a high degree  of decentralization of the  delivery
 of services, since advice,  to  be useful,  must  be  tailored to the
 particular  circumstances  prevailing  at the  growers' sites.  However,
 some demonstration projects  have utilized  centralized  data analysis,
 in order  to incorporate weather  projections and other data more
 amenable  to a  regional  approach  (eg.,  the  Purdue  system  for alfalfa,
 the Michigan State University  system for apples,  and a model for
 cotton  at  the  University  of California.)

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                               -25-

     IPM is currently  fairly  labor  intensive  because  of  the reliance
on scouts in the  fields.   Some  technology  is  evolving to reduce this
reliance, such as  satellite or  airplane  surveillance  for presence of
plant pathogens or weed  infestations,  but  there  are  limits on this
development — there will  probably  always  be  a need  for  scouts in the
field, not only for the  detailed  information  they can produce, but
to act as an effective human  interface between the provider of the
information and the grower users.   Likewise,  there are opportunities
for more efficient means of  information  collection and processing,
but IPM represents a small move away  from  the current trend  in capital
intensive farming.

      In considering the  potential  acceptability of IPM,  it should
be noted that the  infrastructure  and  traditions exist in some areas
(eg., in California, where private  farm advisors have become estab-
lished, consistent with  the  high  degree  of regulation of agricul-
tural activities), but  IPM services delivered by private parties
would be seen as  a new idea  in other  areas.

      There  is some set-up cost involved  in developing and  testing
out IPM techniques.  This  work has  primarily  been carried out by univer-
sity  and USDA sponsored  researchers,  but some small   firms have been
successful  in developing their own  techniques and adapting those
developed with  public  funds.   In addition, some pesticide manu-
facturers have  developed parts of IPM programs as vehicles for
the commercialization  of their products (such as the  information
provided by the Zoecon Corporation  for effective use  of their
insect lures.)

    .  These  characteristics create an environment  particularly
suited to small,  localized firms,  providing  services  via high-labor
and  low-capital mechanisms,  and dealing in information  and innovation.

      Experience  to Date

      Government  sponsored or run programs have  predominated,
reflecting  the  unique  capabilities of the land  prant  system  for
developing  and  proving out new ideas of use  to  the farmer.   Among
the  scouting  and  pest  management projects examined by APHIS  and
EPA,  the  program  participants experienced a  decline  in  pesticide
use  and  production costs, and  increases in yield  and  profits,  and
must  therefore  be deemed successes.   7/

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                              -26-

     Studies conducted  for EPA's Office  of  Research  and  Development
on farmers' considerations of risk have  indicated  the  preferability
of information, as opposed to insurance  or  other mechanisms,  as a
means for reducing growers' uncertainties.   8/   In  this  context,
pest infestation  information and other components  of IPM programs
can be cost effective means for maintaining profits  and  productivity,
while reducing  environmental exposure  to pesticides.

     Results  from a  Ph.D  dissertation  from  the  University of
California  suggest that the spread of  IPM can best  be promoted by
focusing  support  on  the providers of  information (as opposed to the
users of  the  information.)  9/  Governmental policies to encourage
an expanded supply of  information services  might  include price
subsides  to the information providers,  training of  potential IPM
practitioners,  or cooperative development of pest  management
techniques  for  particular crop/pest  situations.  Although the  limited
crop and  geographical  bounds on that  study  restrict the  ability to
generalize  from it,  it  is worth noting,  however,  that this finding
is consistent with  the  long-established  practice of USDA providing
area specialists  to  deal  with  particular crop production problems.

     Over the past  few years,  numerous  pest control advisors or
farm management firms  have achieved  recognized success.   10/
Success  is  measured  not only  in  their  own financial well-being,
but  in  their  ability to improve  their  clients'  profit situation.

     EPA Mandate

     Conduct  of the  pesticides  registration  scheme  requires EPA to
understand  IPM  well  enough to  make  intelligent regulatory decisions.
In  addition,  Section 20(a) directs  EPA to conduct a research  program,
giving  "priority  to  research  to  develop biologically  integrated
alternatives  to pest control."   Finally, Sec. 4(c)  directs EPA
to  provide  information on IPM  to  those  pesticide users  requesting
it.

      EPA Actions

      EPA is evolving a statement  on its  stance and  programs  on
 IPM,  with particular attention to the research needs  and where
 the  research  should be conducted.  EPA  is  looking  into  the  develop-
ment  of  IPM in  urban settings.  EPA is also  providing  materials
 potentially useful  to  persons interested in  applying  IPM  to  their
 pest  control  problems  to USDAjfor distribution through  the  Cooperative
 State  Extension Service.   IPM will be considered among  alternative
 pest  control  practices in RPAR, cancellation and suspension  decisions.
 Through  its research,  information distribution and  regulatory actions,
 EPA intends to  help create a climate that  is conducive  to  the  further
 development of  a healthy vigorous system of  private providers  of  IPM
 services.

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                               -27-

APPLICATION TECHNOLOGY

     The Agency  feels  that  its actions  may  also have an effect on
the portion of the  pesticide  industry  which is  concerned with
application technology.   EPA  regulations  should stimulate changes
in methods of  application,  since  more  efficient application can
reduce  the amount,  and  therefore  the  risks, of  pesticides applied.
This is  not a  big  push,  but the pressure  is there.   The industry
seems aware of the  need  to  refine application techniques, and users,
of course, are interested.

     As  an illustration  of  the potential  savings involved, it has
been estimated that for  a typical application of an agricultural
foliar  insecticide, 40%  of  the quantity applied winds up away from
the target area  through  drift, misapplication,  volatilization,
leaching and  surface transport.  Another  15%, although  falling  in
the target area, does  not land on the target crop.   Of  the remaining
45%, only 4 %  is typically applied near the target  insect, and  the
bulk of  that makes no  contact with the insect.   Thus, less than  1%  of
the amount applied is  absorbed by the insect through contact, inhala-
tion and ingestion.  The details  are  different  for  different  crops
and pesticide  types, but sizable opportunities exist for reducing
the quantity  of  pesticides applied without sacrificing  any benefits
through the  reduction  of drift,  improvement of placement within  the
target  area  and  attracting target pests to pesticide deposits.   11/
Innovations  in recent  years include ultra-low volume (ULV), micro-
encapsulation  and time-release formulations and their attendant
application  equipment; chemicals and devices for improved  baits,
lures  and traps; and other improvements stemming from an  increased
understanding  of the aeronautical and physical principles  underlying
pesticide applications.   12/

     Any market  created  for innovations in application  methods  need
not be  restricted  to large companies.  Small firms  are  as  viable
a source for  new approaches to research, development and  production
of application equipment as are  larger firms.

CHILD  PROTECTIVE PACKAGING

     The Agency is planning to publish proposed child  protective
 packaging regulations early  in 1977.  Use  of child  protective
 packaging will enable some products  to be  used  in  the  home that
otherwise would  not have been  available.   These are products  with
 an inherent  toxicity making them candidates  for restricted use.

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                              -28-

A recent study showed that the  total  annualized  incremental  cost  of
child protective packaging will  be  less  than  $6  million,  which  is less
than 8 cents per container subject  to  the  regulations.   This cost should
not be a serious problem  for manufacturers  or formulators,  particularly
since it means that  these products  can be  kept  in  the  home  market.   13/

     Developers and  vendors of  child  protective packaging and
closures include a variety of large and  small firms.   The regulations
will expand the market  for special  packaging  and both  large and
small companies will be stimulated  to  compete.'on the  basis  of inno-
vative designs, price,  and performance.

USERS AND APPLICATORS
     Certification  and  training  of  applicators,  as a condition on
the use of restricted use  pesticides,  is  not  expected to deny
agricultural  users  the  benefits  of  such  products,  nor to make them
more dependent  on commercial  applicators  than in the past.   The
certification and training program  has ample  provision to allow
such agricultural users to qualify  as  private applicators.

     Section  3(c)(5)  provides that  the Administrator "shall not make
any lack  of essentiality a criterion  for  denying registration of any
pesticide."   This allows multiple products to be introduced to compete
for the  same  use  patterns.  When considering  products for cancellation
or suspension,  EPA  weighs the costs and benefits of the products' uses.,
particularly  the  effects on productivity in the  affected agricultural
sector.   A cancellation decision typically has different impacts on
agricultural  users  in different  parts  of the  country, and some minor
uses may  be  adversely affected.   Where cancellation occurred, the Agency's
judgment  was, however,  that these disadvantages  were outweighed by
the advantages  of the cancellation. 14/

     Some products  intended for  home  use will be available only as
restricted  use  products, although the  exact numbers depend on re-
registration  decisions  between now and October  1977.  This probably
will cause  some increased reliance on professional  applicators  in
these  instances,  creating some benefit to that  sector of the  industry.
Contacts  with the  professional applicator  industry  show optimism
that classification of  pesticides into restricted and general use
will be  good  for  business.

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                                 -29-
                            APPENDIX
                             STUDIES
     Several studies done in recent months have given the Agency
a more accurate Idea of the side effects of our actions and some
suggestions for how the negative effects might be lessened.

ECONOMIC IMPACT.OF REGISTRATION DATA REQUIREMENTS

     EPA is in  the process of revising  the Guidelines for  Registering
Pesticides, proposed in June 1975.  Concurrent with  the development
of the Guidelines is an assessment of the cost impacts of  the testing
requirements.   EPA estimates on the Guidelines as proposed  in 1975
amounted to an  Incremental one-time cost of $68 million.  15/
Industry's own  estimates have been much higher.  A recurring problem
has been to Identify what Increased costs are due to data  requirements
made progressively more stringent  in the I960'8 and  1970's and
which are attributable to the Guidelines themselves.  As  the
Guidelines stood in mid-1976, the  incremental one-time costs were
roughly estimated at $97 million or $29 million annualized over a
5 year period.  As the Guidelines  reach the point of re-proposal in
1977, the costs will be summed up  and reported.
 INCENTIVES AND DISCENTIVES

      A study  has  recently been  completed  on  incentives  in  the
 pesticide industry.   A working  conference took place  in October  1976
 and  EPA received  the  final  report  in January 1977.  16/  The study con-
 cluded that although  action by  EPA, USDA, and the  industry cannot
 be expected to bring  about  a major change in pest  control  innovation,
 EPA  and others could  take some  incentive  measures  to  improve the
 likelihood of pest  control  research and development.  Steps recommended
 for  inplementatlon  as soon  as possible Included specific actions to:

      *  Decrease  regulatory hindrances to research and  development
      *  Reduce the  risk  of  product development by  industry
      *  Increase  the  availability  of minor use pesticides
      *  Lengthen  patent  life
      *  Advertise safety on product labels
      *  Increase  use  of  integrated pest management
      *  Increase  Information and training for pesticide users.

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                              - 30 -

A STUDY OF SMALL BUSIKES8E8

     A study was conducted in 1975 for the Experimental  Technology
Incentlvea Program and the Small Business  Administration on  "The
Impact oo Smll Business Concerns of Government Reguletione  that
Force Technological Change." IT/  Although FIFRA and the FFDCA are
lave which bring about technological change,  the effects of  theae
atatutee vere not examined directly in thia study.   The  statute*
considered vere of the "minimal standard"  or  "allocation/distribution"
type, and not "pendeelos/probibitW variety which characterizes
PIFRA and FFDCA.  In spit* of the lack of  direct applicability of
the study to the specific* of the pesticide regulatory situation.
     of the findings are worthy of mentions
    Among  the  firms studied, the costo of compliance (per unit of
output) with the statutes under consideration roae es sise of the
firm decreased (reflecting economies of scale.) except for the very
smallest firms.  Thia  is related to exceptions that are made for
smaller firms  (in  the  form of extension, modifications and exemptions),
and to flexibility of  enforcement.  In the opinion of the contractor,
flexible enforcement ie more common among the older, snore established
regulatory bodiea, but even the "younger, brasher outfits like SPA"
heve "confronted and accepted the  impossibility of totsl enforcement."

    Smaller firms  face higher interest changes, less advantageous
terms of payment,  end  leee availability of money to finance spending
required by regulatory demands than larger firms.  There is a tendency
to be able to  pass through either  nearly all or nearly nothing of the
costs incurred.  The further down  the production - distribution chain
a company  la located,  the less likelihood of cost pass-through.

    The small  fine studied alao had non-financial problems with
compliance which seem  to be shared to some degree with pesticide
registrants — time and paperwork  burdens, confusion over regulatory
requirements,  difficulties in dealing with agency personnel and in
the formulation of legislation and regulations.

    The study  notes the benefits partly off-setting the costs of
regulation, citing "a  wide range of industries, including many small
businesses,  (which) receive indirect benefits  through sales of
materiala, equipment,  supplies, and services  to manufacturers of
pollution  control  equipment and the like."

    The report recommends several  kinds of action to the Small
Business Administration, including intervention and advocacy in the
federal legislative and regulatory process; financial assistance via
Regulatory Economic Injury Aasiatance Loans and the like; technical
assistance of  aeveral  types; and programs  to  foster cooperative
action among similarly-affected small businesses.

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                               - 31 -

HEW. PMOVATIVE PESTICIDES


    A study on "New, Innovative Pesticides:  An Evaluation of
Incentives and Disincentives of Commercial Development by Industry,"
is being conducted for QPP.  Tentative findings include the expectation
that, over the next ten years, there will be a steady flow of products
from the chemical industry for pesticide uses, but that innovative
products (such as bacterial, pheromonal and viral pesticides) will
not be registered and available in sufficient quantities to dramatically
substitute for conventional chemical products, although some are expected
to complement the use of chemicals in selected markets.  These conclusions
are based both on analysis of economic factors and on the views of
pesticide users.

    By viewing profit as incentive for product development by
private industry and risk as disincentive, two limiting factors on
the development of innovative products are their generally narrow
spectrum (limiting the ultimate market size) and the lack of
proprietary protection.  Therefore, the government should consider
thซ following changes to encourage develoment of innovative products.

*  Moans to give some measure of proprietary protection to firms
seeking to market naturally-occurring agents.

*  Maana to reduce risk to the developers, possibly through support
for R & D costs and modification of performance liability constraints .

    These are preliminary conclusions, but it is worthwhile to
note that the measures seen as helpful in encouraging development of
innovative products are to some degree in conflict with the promotion
of an atmosphere of competition.


      P10TBCTIVE
     Another recent study looked at the cost of the child protective
 packaging which will be required later in 1977. isy  It showed that
 the total annual ized cost will be less than $6 million and less than
 8 cents for each container subject to the regulations.  The effects
 of the special packaging regulations were discussed further in the text.

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                               -32-
Footnotes

1.  MeooranduB, March 5, 1976, to Deputy Assistant Administrator
    for Pesticide Programs from EPA General Counsel.


2.  The "data validation" problems will not be solved by this legis-
    lative action.

3.  Incentives for Research and Development in Pest Control,
    Volume II, Appendices, 1976, EPA-540/9-77-009, pp. 1-12.

4.  The Pesticide Industry — An overview,  William Blair and
    Company, July 7, 1975, p. 15.

5.  Ibid., and Incentives for Research and Development in
    Pest  Control,op. cit.

6.  Conteaporary Pest Control Practices and Prospects, Vol.1
    of Pest Control;  An Assessment of Present and Alternative
    Technologies, National Academy of Sciences,  1975, pp. 340-366.

7.  An Evaluation of the Scouting Activities of  Pest  Management
    Programs, 1974, EPA-540/9-75-014, pp.  34-38.

8.  Crop  Insurance and  Information Services to Control the  Use
    of Pesticides, draft final report,  1974.

9.  The  Diffusion of Pest Management  Information Technology,
    Wayne Richard Willey, Ph.D.  dissertation  in  economics,
    University  of California, Berkeley,  1973.

10. Contemporary  Pest  Control Practices and Prospects,    op.  cit.,
    p.  397,  and volume III,  Cotton Pest Control.

11. Production, Distribution, Use  and Environmental Impact  Potential
    of  Selected Pesticides,  1974, EPA 540/1-74-001, pp.  106-108.

12.  Incentives  for  Research  and Development in Pest Control,Volume  II,
    op.  cit., pp. 8-12, and  Contemporary Pest Control Practices  and
    Prospects,  op.  cit., 365-380.

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                                  -33-
13. Economic Impact of Child-Proof Packaging Regulations on the Cost
    Of Pesticide Containers in the United States, draft screening
    study, Office of Pesticide Programs, U.S. EPA, 1977.

.14. DPT;  A Review of Scientific and Economic Aspects of the Decision
    to Ban Its Use as a Pesticide, prepared for the Conndttee or.
    Appropriations, D.S. House of Representatives, by the U.S. EPA,
    July  1975.

15. Incremental Cost Impacts of the 1972 FIFRA, 1976, EPA-540/9-76-002,
    p. 41.

16. Incentives for Research and Development in Pest Control, volumes
    I and II, op. cit.

17. September 1975, CAI-800-F-2R.

18. Economic Impact of Child-Proof Packaging Regulations on the
    Cost  of Pesticide Containers in the U.S., op. cit.

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                        STATEMENT OF
               .  HONORABLE DOUGLAS M.  COSTLE
                        ADMINISTRATOR
               ENVIRONMENTAL PROTECTION AGENCY
                         BEFORE THE
            COMMITTEE ON AGRICULTURE AND FORESTRY
                    UNITED STATES SENATE
                       MARCH 11, 1977
     Good morning, Mr. Chairman, and Committee members.

I am very pleased to be here with you this morning for

this hearing on the Federal Insecticide, Fungicide, and

Rodenticide Act.

     As you know, the Senate voted my confirmation as

Administrator of the Environmental Protection Agency last

Friday.  I am to be formally sworn into office by the

President this afternoon.  I am present before your

Committee today to listen and learn, and Dr. Breidenbach,

who is serving as Assistant Administrator in charge of the

pesticide regulatory program, will present the Agency's

statement.

     Although I had some involvement with pesticide regulation

as Deputy Commissioner and then Commissioner of the Connecticut

Department of Environmental Protection  from 1972 to 1975, the

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• issues which have arisen in the implementation of the 1972



 Amendments to FIFRA are for the most part new to me.  I



 know that pesticide regulation is an extremely complex



 and important area of EPA responsibility.  I also know



 that there are difficult problems which have to be  solved.



 I am pleased to be here today, to learn.directly from you



 and from the discussion that will follow.



      I would like to emphasize my desire to work closely



 with this Committee.  I regret that I  have not yet  had



 the opportunity to meet with you, and  hope that I can do



 "so before too long.



      With your permission, -.Mr. Chairman, I. will call on



 Dr. Breidenbach to present the Agency.'s testimony.

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                        STATEMENT OF
               HONORABLE ANDREW W.  BREIDENBACH
  ASSISTANT ADMINISTRATOR FOR WATER AND HAZARDOUS MATERIALS
               ENVIRONMENTAL PROTECTION AGENCY
                         BEFORE THE
            COMMITTEE ON AGRICULTURE AND FORESTRY
                    UNITED STATES SENATE
                       MARCH 11, 1977
     Mr. Chairman, administration of the Federal Insecticide,

Fungicide, and Rodenticide Act is a tough job.  The law

charges EPA with the responsibility .to protect health and

the environment from the adverse effects of toxic chemicals

manufactured.for the very purpose of adversely affecting

pests, while assuring that the great good they can perform

remains a productive part of the national economy.  The

law provides us with the basic rationale and tools needed to

make decisions on pesticide use which strike the necessary

balance between environmental and economic concerns.  As I

will describe, the job is made difficult by issues having

less to do with that balance than with rival economic

interests, paperwork, and problems inherited from the past.

     We are making progress.  Major rulemaking has been

conceived and promulgated with full participation from many

interested parties.  Most of the States have done a magnificent

job in  cooperating with EPA to establish workable and

sensible  applicator training and certification programs; 49

State Plans have been submitted to EPA for approval, and

over 330,000 applicators have participated in training

programs.  A system has been developed for intensely

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                              -2-





reviewing pesticides that may be posing an unacceptable



hazard to the environment or the public.  The system includes



receiving and considering both benefit and risk information



received from the public.  The new Scientific Advisory Panel



established by the 1975 FIFRA amendments has met three times



to consider proposed Agency rulemaking, and promises to be



active and informative.  The Administrator's Pesticide



Policy Advisory Committee, established to provide input from



a wide spectrum of interested agricultural, industrial,



environmental and governmental vantage points, has been



extremely helpful in identifying and discussing significant



issues.  Hundreds of thousands of individual actions,



including experimental use permits, emergency exemption



requests, tolerance petitions and requests for new, supplemental



and, amended registrations have been handled over the past



four years.  It has been a busy and productive time.



     But all is not well.  The two major tasks assigned by



the 1972 amendments were, as you are certainly aware,  the



reregistration and  classification of all pesticides presently



marketed in the United States, and the  certification of



applicators to use  restricted pesticides.  The former  task



has encountered serious  difficulties,  and  is  still —  over



four years after  the enactment of the  1972 law — not  close



to  completion.  In  looking over  those  four years and the



chronology of events in  the  reregistration effort, several



impressions particularly strike  me:

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          the complexity of. the task was  originally  under-



          estimated,  and further complicated by a series  of



          new developments in 1976;



     —   Agency resource needs were thus also underestimated,



          another problem exacerbated by  the 1976 developments;



          the problems encountered have been patched by the



          "bandaide"  approach, and a thorough review of the



          situation,  with long term, thoughtful resolution,



          is in order.    '



     There are two primary problems impeding reregistration:



data validity and trade secret litigation.  I believe a



brief discussion of these issues would be helpful.



     One major problem is that of data compensation and



trade secrets.  It was always our belief  that the mandatory



data licensing provision of the Act was intended to be a



mechanism to share costs of data development among all users



of- those data, and thus an incentive to research in the



producing industry.  Section  3(c)(l)(D) prohibits the Administrator



from considering data developed by one manufacturer in



support of subsequent registrations without permission of



the data developer, or an offer to pay reasonable compensation



by the subsequent applicant for use of the data.  Section



10 of the Act specifies that  trade secret data cannot be



released nor, under 3(c)(1)(D), is it to be used in support



of subsequent registrations regardless of the willingness

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                              -4-
of an applicant to pay reasonable compensation.  EPA's position



has been that trade secret information should be narrowly



defined, e.g.', the manufacturing process and confidential



formula.  However, several registrants have asserted that all



data in support of registration — such as toxicity, chemistry,



fish and wildlife, and efficacy — are trade secrets, and



thus are not eligible for use by any other registrant without



express permission.  This position,. if correct, would leave



little data subject to the compensation scheme under section



3(c)(l)(D).  Ten cases are now pending in the courts, with



injunctions or stipulations preventing the Agency from using



the disputed data for registration or reregistration purposes



without consent of the data developer.



     This issue has an especially profound impact on the small



formulator, who is generally incapable of developing data



and has historically relied on that already submitted by



another registrant.  What this comes down to is a matter of



how many pesticide formulators will stay in business, and



who will control which formulators are in and which are out.



Also at issue -is the public's right to have access to data



supporting pesticide registrations.



     The second major problem concerns reregistration and



classification.  The original strategy for reregistration was



to screen and separate pesticides into two basic categories:

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                              -5-


(1)  those suspected of posing an unreasonable risk to man or

the environment; (2) those for which no evidence of potential

unreasonable adverse1 effects was known.  Pesticides falling

into the.first category were to be subjected to an intensive

review with full data validation (scientific review and

confirmation of results by EPA technical staff). Those in
                                                          •
the second category were to be classified, their labeling

updated, and examined for data gaps — tests required to

meet today's standards which were not performed in the past.

The data supporting registrations of products in that category

were not to be individually evaluated and validated, the

assumption being that, for the most part, tests had been

performed properly, results had been honestly reported, and

testing  deficiencies had been detected and resolved at the

time of  registration.  Utilizing this strategy, the Agency

believed the'job could be done by the October 1976  (not

October  1977) deadline.

     Those underlying assumptions were proven invalid in

1976.  Investigations by the Food and Drug Administration,

.the GAO, and a Senate Committee revealed questionable, even

fraudulent, practices in laboratories conducting animal

studies.  In addition, an internal EPA review disclosed

problems with the  data in Agency files.  Reregistration was

halted in August of that year to consider the proper data

validation approach.  In December, the Senate Subcommittee

on Administrative  Practice  and Procedure issued a  draft

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                              -6-




report concluding that Agency review of data was insufficient,


and that the public was not being properly protected from

       /
the hazards of pesticides.  Former Administrator Train made


the commitment at that time to review test reports in Agency


files before reregistration.


     Because we must undertake the immense job of validating

                                        •      •
bio-effects data related to risks to health presented by


pesticides, our job is correspondingly greater.  It is not


possible to accurately assess the amount of time this task


will add to our other jobs, but we estimate — after a


thorough zero-based resource exercise — that reregistration


including data validation  for all products will take, at the


current resource level, 10-15 years.


     This extended period  forces us  to readjust our thinking


about  accomplishing program goals.   Policies developed on


the  assumption that reregistration would be accomplished


quickly must be  reevaluated, and new strategies planned.  We


are  considering  the following several ways to streamline our


program and deal with  the longer reregistration period:


Separate Classification From Reregistration


     Although reregistration will not be completed  for many
       ซ

years, most of the States are ready  to begin  implementing  the


applicator  certification  provision of  the Act.  The Agency

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                              -7-


thus desires to classify products, apart from the reregistration

process/ by regulation.  Classification could be accomplished

on or near the October 1977 deadline, and take effect during

the 1978 growing season.  This approach would help minimize

the hazards associated with the restricted products, and put to

good use the hard work accomplished by the States, EPA Head-
                      i      •         '•
quarters and Regions, and the Extension Service in training

and certificationi                   .

Permit Conditional Registrations.

     A problem corollary to the  lengthier transition period

between old and new FIFPA is the matter of granting new

registrations.  Where trade secrets  and data compensation are

not at issue and applicants can  submit or cite data to meet

current requirements, registrations  can be granted.  However,

there are certain data gaps which preclude a new  registration

from either submitting or citing now-required information.

Many "new" products are actually just like products on the

market  ("me too" registrations)  or utilize an "old" active

ingredient in a different way than the products already

registered.  The question is, is it  fair to keep  "new" products

utilizing old chemicals off the  market until long-term data

requirements  (which current registrants are being given  time to

fill) are met?  The Act clearly  allows the current  registrants

to  remain registered until reregistration or an intent to

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                              -8-





cancel decision is made.  I think it is important to establish



whether or not Congress wishes current registrants to enjoy



a competitive advantage over companies desiring to compete with



like products "grandfather^d" by the 1972 Act pending re-



registration.  The law does not specifically permit or



specifically preclude conditional registrations, so Congressional



direction in this matter would be welcome.



Define "Trade Secret"



     The trade secret dispute could be clarified if the



Congress specified which information should not be considered



trade secrets.  Clarification as-to whether or not the Agency



can use trade secret information "in camera" for purposes of



comparing formulas of registered products and those of applicants



is also needed.



Diminish Efficacy Review  -



     it has become increasingly apparent  that our scarce



resources should be applied where they can do the most public



good.  One area in which we have devoted  much time and



attention is the review of efficacy data.  In practice,



especially for agricultural chemicals, efficacy  is of limited



duration, affected by geography, climate  and regionalized pest



resistance.  Agencies such as the USDA Extension Service and



even farmers themselves are in a better position to assess



efficacy of particular  products.  With reregistration and



attendant data validation demanding priority, it seems an

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                              -9-


unwise use of our resources to spend the time to examine

efficacy data while more important issues and registration
       /
activities suffer.  EPA is therefore considering proposals which

would require examination of efficacy data only for certain

products or when required by special circumstance.

New Approach To Registration

     Above all, I would like to broach for discussion the idea

of regulating pesticides by a generic rather than a product-

by-product approach.  It became clear after grappling with the

complexities of FIFRA for over four years, that there was far

too much paperwork and attendant time devoted to  individual

product registrations, without commensurate public advantage.

If the Agency were to adopt a technical-product-intensive

registration scheme  (for example, X technical-grade product  is

registered for A  uses against B pests on C sites  at D formulations),

and most data, including the expensive  long term  animal  feeding

studies, were associated with the technical registration,

several important benefits would accrue:

          the data compensation issues would be largely

          confined to disputes between  the hundred or so

          producers  of technical material;

          formulators utilizing a registered technical product

          in .a manner consistent with the registration would

          have to cite much less data,  and formulator

          registrations could be issued quickly with minimum

          review  time;

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                              -10-




          the public interest would he best served in that



          Agency resources would be devoted to assessing the



          risks and benefits of all uses of a chemical at



          one time, more efficiently using scarce scientific



          and technical talent.



     These are all important broad issues I have raised, and



I urge the Committee to give them a thorough public airing to



develop sound and responsive legislative direction.



     That concludes my prepared remarks, Mr. Chairman.

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