right to appeal on their own behalf and this should not be limited to the registrant. This is our point. Senator ALLEN. Might that not make the registrant continue producing this pesticide when possibly he might agree with the Administrator in cutting him off? Dr. BYERLY. I would suppose, sir, that the Administrator of the EPA would impose the same requirement on any appellant that he imposed on the registrant if the registrant was an appellant. So that if this substantial question was verified by the Administrator, the privilege of use, it would be withdrawn after due process. Senator ALLEN. Yes; but if the order is to the registrant and he is ordered not to produce it any more, and he agrees with the conclusions of the Administrator and does not want to appeal. This would give third persons the right to appeal for the registrant when he might not desire an appeal? Dr. BYERLY. That is correct. Mr. CARTER. That is correct, but in the case of a pesticide that does not involve a formula secret-in other words the formula is known, or even if the formula is secret-another manufacturer, of course, might acquire the rights to manufacture the product, I would think, under this concept. As Dr. Byerly testified, the purpose is to avoid situations in which an essential use, an important use of a product, although it may be nominal in volume, will not be automatically canceled as a matter of law, merely because the registrant for perhaps economic or perhaps other reasons doesn't choose to appeal. It is a protection for small groups such as the citrus group. Senator ALLEN. Well now, you gentlemen recommend the passage of the House bill with these two suggested amendments. Dr. BYERLY. Sir, of course we would prefer to continue to work with the committee with respect to the amendments. Yes, we strongly urge the passage of the bill. Senator ALLEN. Thank you very much. Now, let me state for the benefit of the remaining witnesses, the chairman has unwisely allowed the discussions to be too lengthy and as a result, we are falling behind and it was announced at the time that the hearing was called that oral testimony would be limited to 10 minutes so it does not seem that it is of great deal of use to come and read the prepared statement. The committee can study that at another time. So, it is thought advisable to condense your statement and your oral testimony and then file your written statement as a part of the record. Since the hearing was called for the benefit of considering the merits or demerits of the House bill, I would suggest that each witness get right to the point and give us his or her views with regard to the merits or demerits of the bill and suggested methods of improving the bill and then file the written statement as part of the record. Most of you have a list of witnesses I am sure. We are going to have to impose the 10-minute rule with all due respect to all of the witnesses. Dr. Isleib, please. Dr. Isleib, you will pardon me if I mispronounced your name and I would appreciate it if you would proceed. STATEMENT OF DR. DONALD R. ISLEIB, SCIENTIFIC ADVISER TO Dr. ISLEIB. My name is Donald Isleib. I am science adviser to the director of the Michigan Department of Agriculture, and it is in this capacity and at the instruction of the director and the Commission of Agriculture of the State of Michigan that I appear here today to voice strong objection to three portions of H.R. 10729: (4) The apparent intent to require certification of every grower as applicator, or compel him to hire a commercial applicator; (2) The failure to speak to the funding of the program defined in H.R. 10729; and (3) The virtually complete preemption of the registration and regulation of pesticides from State jurisdictions. I will attempt to paraphrase my points, sir, our testimony has been offered to the clerk and is here. I hope it will be part of the record. Senator ALLEN. Yes, it will be made part of the record. Dr. ISLEIB. We have since 1949 had a series of laws which are intended to control the distribution and use of pesticides in Michigan. The most recent one has been to establish a definition for restricted use pesticides and to require that all who sell these pesticides be licensed and show evidence of their competence in safe handling and safety precautions and to be acquainted with any other information that may be required by the Director relating to the required safe uses. We require these dealers to submit monthly reports, including the names and addresses of the purchasers and the date of sale and the identity of the formulation and intended use and an applicator's license number in the case of commercial applicators. We feel this is a workable and enforceable program and in the event of enactment of H.R. 10729, we would like to offer our State program to the Administrator of the EPA as a workable State plan. If this is not an acceptable plan to the Administrator, and if the Administrator requires the certification of every applicator, we will have extremely high new certification costs for the approximately 40,0000 to 50,000 potential applicators of restricted use pesticides in Michigan. We have very diverse agriculture in our State, characterized by small farms. Typically our farmers perform their own application services and we think in many cases the economics of the kinds of crops we are growing would not permit-particularly in view of the size of the farms involved--our farm operators to economically hire a licensed commercial applicator for the small acreage; we oppose compelling him to do so, or to suffer infestations that would jeopardize his livelihood. So, we are concerned as to the silence in H.R. 10729 as to how the registration of restricted use pesticide applicators might be funded. We wonder if the State would be required to pay the cost of establishing and operating a program designed, directed, and virtually preempted by the Federal Government. Every State program is now competing and getting a very hard look from our local legislators; our stretched budget may require that some of the programs be discontinued. If, in fact, legislation should not make provision for complete Federal funding of the program, what might we encounter? Perhaps some States would not or could not devote the necessary funds to the conduct of the Federal program; if the Federal Government could not offer a State certification program and the State cannot or will not, then what would happen to the farmers who rely on the use of restricted use pesticides for the conduct of their operations? We can't believe that it would be the intent or the effect of this law to deny the use of restricted use pesticides to people who are required by law to be licensed and for whom no adequate provision for licensing is made available. We think therefore, that there must be no question of the Federal role in funding and certification of those persons who are going to be required by the law to be certified. And we have, sir, in our testimony suggested language which would provide that in the absence of funding for the certification program, that no person should be denied the opportunity to use restricted use pesticides unless adequate opportunity has been presented to him to undergo the licensing procedure and thus become certified for these uses. Regarding our third point, preexemption of the registration field, we have no wish to share with EPA or any other of the Federal agencies in the evaluation or decision regarding human health, toxicology, pharmacology, persistance, or basic environmental evaluations, but we certainly feel that we have collective resources in our various State departments, the service of the State university, our health, natural resources and water resources agencies which can adequately and well identify and judge the unanticipated or unique needs for pest control which occur in Michigan. We feel the authority assumed by the Federal Government in H.R. 10729 as proposed, is too restrictive and we are not confident that the Administrator will always be able to respond properly to localized pest problems. We have some local threats to agriculture. We feel they are particularly serious in border States and States close by waterways used in international shipping. We are very pleased, after having had an opportunity to review the Senate committee staff mark up, to see that a provision has been made to provide for the States for registrations of uses which are unique to their needs. My testimony includes a suggestion, to accomplish State registration but I am sure that my Director and the Commission of Agriculture would prefer the one suggested in the committee markup. I would like to bring your attention to a couple of unique situations which I think describe the point that I am making. We have in the Great Lakes a fishery that is being restored by massive efforts which include the control of the sea lamprey with a chemical, TFM. The successful restoration of lake trout and the introduction of salmon species were possible only when the Department of Interior, working closely with our State agencies, was able to arrive at a successful lamprey control chemical. Once found, these agencies requested registration from the Michigan Department of Agriculture for the use of this chemical and the remarkable success of this undertaking is now reflected in a major sport fishery where none had previously existed. We have the cereal leaf beatle, which is a invader from Europe first found in Michigan in 1962, and a vigorous chemical control program under the authority of the Michigan department delayed the spread of this pest while Michigan plant breeders embarked upon a program to find leaf beatle resistants. However, termination of our chemical control program a few years ago was followed by a rapid spread of this pest to neighboring States as far west as Illinois and as far east as the Atlantic coast. The control program we used did not introduce new pesticide use patterns or food residues. It simply extrapolated well-known properties of existing pesticides to a new problem peculiar to us at that time. We feel that our response was correct and that we should continue to use our local expertise within the framework of the law proposed, H.R. 10729, to solve similar problems in the future. These are the provisions we hope would be included in the committee's final report. (The prepared statement of Dr. Isleib is as follows:) Mr. Chairman and gentlemen of the committee, I appreciate the opportunity to testify on H.R. 10729. I am Donald R. Isleib, Scientific Advisor to the Director, Michigan Department of Agriculture, and it is in that capacity and at the instruction of the Director and the Commission of Agriculture of the State of Michigan that I appear here today to voice strong objection to three portions of H.R. 10729: 1. The apparent intent to require certification of every grower as applicator, or compel him to hire a commercial applicator; 2. The failure to speak to the funding of the program defined in H.R. 10729; and 3. The virtually complete preemption of the registration and regulation of pesticides from State jurisdictions. I will speak to the first two points jointly. Legislation to control the distribution, sale, and use of pesticides has been enacted in Michigan in 1949, 1961, 1964, 1968, and 1971. Regulations supplement the law, including defining which pesticides shall be restricted in use. Michigan seeks to control the use of restricted use pesticides by licensing the dealers and merchants who sell to the user. A passing score of 90 on a written examination is required of all persons who seek to be licensed, and the licensees must provide to each purchaser of restricted use pesticides, in addition to the registered label instructions for handling, use, and safety precautions, any other information required by the Director relating to safe use necessary to avoid hazards to man or the environment. Dealers must also submit monthly to the Director a record of each sale, including the name and address of the purchaser, date of sale, identity of the formulation, the purchaser's intended use by crop category and, where applicable, an applicator's license number. We in Michigan feel that we have a workable and enforceable program for controlling restricted use pesticides. In the event of enactment of Federal legislation similar to H.R. 10729, we would hope to offer our present program to the Administrator of EPA as a workable and enforceable State plan for dealing with what are and should be restricted use pesticides. We feel it makes a successful and sensible attack on the problem within a reasonable cost framework. If our proposal is unacceptable for any reason, and the Administrator of EPA requires certification of every applicator rather than every dealer or merchant, certification costs would climb sharply. There are about 45.000 potential applicators in Michigan but only 300 to 400 dealers expected to seek licensing. It is worth noting. Mr. Chairman, that Michigan agriculture is characterized by many relatively small farms which grow a wide variety of crops: 40 acres of blueberries, is a lot of blueberries, and asparagus, strawberries and celery typify other labor-intensive crops which do not lend themselves-as do cotton, wheat, or corn-to large-scale application of single pesticides. Our pests tend to vary a good deal from one small enterprise to another, and this argues in favor of each grower applying his own restricted use pesticides according to his particular need. We do not often make widesperad use of a single restricted use pesticide. as might be the case in corn, cotton, peanut, or wheat production. In the economically hazardous business of farming, the Michigan farmer might often find himself unable to hire a licensed commercial applicator for his small acreage, and the Michigan Department of Agriculture vigorously opposes compelling him to do so or suffer pest infestations that will jeopardize his livelihood. In light of these facts, we are deeply concerned about the silence of H.R. 10729 as to how this pesticide program is to be funded. Are the States to pay the cost of establishing and operating a program designed, directed, and virtually completely preempted by the Federal Government? For fiscal year 1973, Mr. Chairman, the Michigan Budget Bureau recommended that the State's share of the meat inspection program be only 20 percent rather than the 50 percent currently in effect. We get a clear picture that if the Federal Government does not provide 80 percent funding for that program, the State will decline to operate an "equal to" program and will ask USDA to assume 100 percent of the cost of the program. We are also upset over USDA's withdrawal of animal health veterinarians and inspectors from the State, resulting in the need for further State funding or accepting the risk from diminished surveillance of scabies, brucellosis, hog cholera, and so on. Every State program requiring matching funds is getting a hard look, and our stretched State budget may require that some of them be discontinued. Should the final legislation fail to make provision for complete Federal funding of the program under consideration, what sort of situation might we find ourselves in? Some States perhaps cannot or will not make funds available for the conduct of the Federal pesticide program, and many could do so only at the expense of other high priority programs. If the Federal Government does not and the State cannot or will not, what happens to the farmers and their production of food and fiber? Are we to conclude that restricted use pesticides will be denied farmers throughout the entire State? That situation is possible and yet so incredible and contrary to good sense and good government that it must not happen. There must be no question of the Federal role in funding the certification of those persons it judges must be certified, contrary to the best judgment of the States. Because we are confident the proponents of this bill do not intend to force the States to pay for the establishment and operation of Federally imposed pesticide registration and regulation or, in the alternative, have the farmers of nonfunding States denied the use of restricted use pesticides, we propose the following language. The Director of Agriculture and the members of the Commission have approved and urge the Committee's consideration and approval of this subsection to Section 4: "(c) FUNDING AND CERTIFICATION.-Certification of pesticide applicators shall be performed, whether by the Administrator or by the States, at Federal expense. No person or user shall be denied the opportunity to use restricted use pesticides, and no person, user, producer, shipper, common carrier, or other person whether inside or outside the boundaries of any State where certification of applicators has not been substantially completed, shall be penalized in any way for manufacturing, shipping, transporting, selling, using, or otherwise handling restricted use pesticides in or into any State unless an adequate certification program shall have been made widely available to those who would become certified applicators within that State." Regarding our third point, preemption of the registration field, we do not wish to share in the EPA and FDA evaluation or decision regarding human health, toxicology, pharmacology, persistence, or basic environmental evaluations. We are certain, however, that the collective resources of our State Department of Agriculture, Experiment Station, Extension Service, and Health, Natural Resources, and Water Resources agencies can best identify and judge the unanticipated or unique needs for pest control in Michigan. We feel that the authority assumed by the Federal Government in H.R. 10729 is too restrictive, and we lack confidence that the Administrator will always be able to respond promptly to localized pest problems. The local threat to agriculture is particularly serious for border States and States located on waterways used by international shipping. Invasions of foreign pests, against which restricted use pesticides might very well not have earlier been registered, can be least expensively and most effectively controlled with minimum effect upon the environment if our attack upon them is immediate. Before I describe to the Committee examples of this kind of problem in Michigan in the recent past, I would like to place before you a proposed subsection (g.) to Section 3. Without having the benefit of the Committee Print, the Director of Agriculture and the members of the Commission approved and urged the Committee's consideration and approval of the following language: "(g) Notwithstanding any other provisions of this Act, the chief agricultural executive officer of each of the states, in situations of only local or regional infestations of pests, shall have the right and authority to extend or broaden the uses to which pesticides approved for restricted use may be put, provided: |