We suggest that Section 3(c) (1) (d) be amended or reworded to state that information regarding testing and the test results be allowed in support of other applications for registration except in those cases where the initial applicant requests the information not be released. We feel that the Environmental Protection Agency should not be the administrator of an extension of the patent law. We also feel, however, that manufacturers should be allowed the right of proprietary information so as not to hinder the development of new products or new uses of old products.

In this same Committee Print we would recommend that the proposed amendment number 7 to Section 6(d) reflect a specific period of time. If it is felt that 60 days is not an adequate time period then a more adequate period should be substituted but it should be in the terms of days not the nebulous term "within an agreed time."

We feel that Section 7 regarding the registration of establishments should very clearly state the types of establishments involved. We feel that any establishment which handles a pesticide from manufacturing through the final packaging should be required to register with the administrator. This would, of course, include formulators.

We ask that Section 11 (a) be clarified in regard to record keeping. The present wording indicates that private pesticide applicators would not be required to maintain any records or file any reports or other documents. We feel very strongly that certified pesticide applicators be they public or private must keep records. If private applicators must be certified before using one or more of the restricted pesticides and then are not required to keep records regarding the use of these pesticides, the bill falls one step short of the desired results. We, in New York, require that all custom applicators of pesticides keep records for a period of three years. If this section is approved in its present form, what impact will it have on state requirements that private applicators keep necessary records and documents? If it prevents us from requiring the necessary reports, then we would suggest an amendment to this section.

We suggest amendment provisions of the bill providing indemnification to manufacturers whose products are suspended. To our knowledge, indemnification is not provided in cases of recall by other agencies or recall to alleviate hazardous conditions such as found in the automotive industry. We feel that this would create an unwarranted burden on the taxpayers of the State of New York and could also influence action taken by the Environmental Protection Agency by placing undue financial pressure on EPA who would be required to pay the indemnity.

We very strongly recommend that Section 23(a) (2) be amended to clearly indicate that assistance to State agencies be in the form of grants-in-aid. The training and certification of applicators of pesticides can be most effectively and efficiently handled at the State level. The funding of such a program could be the only roadblock to an otherwise excellent program. Grants-in-aid to States would assure that the training and certification of applicators would be carried out to the best of the State's ability.

We favor the provisions of Section 24(b) which provides for uniform labelling so long as this does not prevent the State of New York from imposing additional restrictions on the use of a particular material which are not imposed at the federal level. At the present time, we do not require a manufacturer to label his product specifically for sale in New York State, provided the sale of the product is in compliance with the provisions of our restricted pesticides law. For instance although a container of chlordane bears a federally approved label, it can be sold and used only under permit and for the specific and more restricted uses allowed by New York State's regulations. If this is the interpretation of Section 24 (b) then we support this provision as it is currently written.

As you probably realize, we very strongly favored the House on the amendment that modified Section 24(a) dealing with authority of states in the areas of restrictions and permits. We also very strongly favor the committee recommendation number 10 which would amend Section 24(c) providing that states may register pesticides to meet specific local needs.

My last comment has to do with terminology used throughout the proposed bill. We have found that there is a very distinct misunderstanding on the part of the general public in regard to the definition of the terms "cancellation" and "suspension". I would like to quote from a letter that we received from Dr. James E. Dewey of Cornell University. "The term cancellation as used most of the time in our present laws and as proposed in this bill is grossly misleading to the public. Its use has led to much of the lack of credibility and faith of the 76-194-72-11

public in this law and in the agencies responsible for carrying out the law. It is incredible that we continue to use such terminology. In the eyes of the public, cancellation means to end, delete, remove and to do so very quickly. In the law, it generally means to review and re-evaluate, a process that can take a considerable time. This part of a procedure should be named something other than "cancellation". In this statement, we wholeheartedly concur. We recommend that a third term be used to define the review procedure and that the term "cancellation" be used to define the action taken after the review procedure has been completed.

If the term "suspension" is retained, we would recommend that it be used only in those instances where products are officially recalled.

I sincerely appreciate the opportunity that you have afforded us of making this statement.

Senator ALLEN. Thank you very much.

I may say you have shed considerable light on the State-Federal relationship under this bill, not only as it is, or would be, but as it might be. I say, too, that you have made an important contribution to the deliberations of this committee. We appreciate your coming in. Mr. FROMMER. Thank you, sir.

Senator ALLEN. Mr. Butler? William A. Butler.

STATEMENT OF WILLIAM A. BUTLER, WASHINGTON COUNSEL, ENVIRONMENTAL DEFENSE FUND

Mr. BUTLER. Mr. Chairman and members of the committee, my name is William A. Butler. I am a Washington counsel of the environmental defense fund-EDF. EDF is a nonprofit, public benefit corporation which may be described as a legal action arm of members of the scientific community who are concerned with environmental degradation. I have attached to my statement a portion of EDF's bylaws, which sets forth the organization's scientific and legal purposes and objectives (app. A). I wish to thank you for holding these hearings and for inviting an EDF representative here today to testify on the bill entitled "A bill to amend the Federal Insecticide, Fungicide, and Rodenticide Act." In these hearings, as welll as through spearheading recent passage of S. 1794 to further research for integrated pest control methods a bill EDF supported this committee has shown admirable awareness of the complicated problems raised by economic poisons in today's society.

The scientists associated with EDF have been interested in the impact of pesticides on the environment, human health, and upon the effectiveness and economics of agricultural production for many years. For example, after carefully evaluating such impacts for the pesticide DDT, EDF, along with several other environmental organizations, petitioned the U.S. Department of Agriculture to suspend immediately and, ultimately, to cancel DDT registrations under the present version of the FIFRA, and further petitioned the U.S. Department of Health, Education, and Welfare to establish a zero or minimum tolerance for DDT in the American food supply. Since these petitions were filed, EPA has taken over regulation of pesticides from USDA and HEW. As a result of the court of appeals decision in Environmental Defense Fund v. Ruckelshaus, 439 F. 2d 584 (C.A.D.C. 1971), proceedings have been initiated by EPA to cancel all uses of DDT. In these marathon cancellation proceedings, I have represented the environmental defense fund, the National Audubon Society, the Sierra Club, and the Western

Michigan Environmental Action Council as an attorney of record. I might add in the court proceedings, an additional plaintiff I represented was the Izaak Walton League. Through the experience gained, both during these lengthy adversary cancellation hearings, and in the several appellate court cases involving DDT, I think that the environmental defense fund has gained a good deal of practical experience from which to evaluate the strengths and weaknesses of the current version of the FIFRA and to comment upon the proposed amendments to that act.

Much of the proposed new bill is a substantial improvement over the statute it would displace. Here I would like to gloss over, ever so briefly, some of the improvements. Specifically, it allows for control over the actual use of pesticides by establishing a restricted-use category; by making it a violation of the act to use a pesticide in any way not prescribed by the label; and by extending Federal jurisdiction to cover intrastate activity. In addition, it does give some additional emphasis to environmental considerations; authorizes registration and inspection of establishments producing pesticides; strengthens penalty provisions; expands research and monitoring authorities; and authorizes regulation of pesticide disposal.

However, there are many deficiencies in the current version of the bill which will greatly reduce the degree to which it fulfills the goal of rectifying omissions and deficiencies in the present act. In short, in the present version, the bill is not nearly so effective as it could be. These deficiencies will in the long run adversely affect the public, EPA, and the pesticide industry alike.

I have attached to this statement as appendix B, a detailed analysis of the shortcomings of the present version of the bill. These comments are too detailed, lengthy, and specific to be presented to you in their entirety at this time. I hope, however, that they will be of some benefit to you and the committee's staff in assessing proposed changes to the bill. At this time, I would like merely to summarize the most important general criticisms of the bill in its current version. These significant general criticisms are as follows:

1. The bill makes inadequate provision for citizen suits or participation, either in the hearing process before the Environmental Protection Agency, or in the judicial review of these legal proceedings, or in regard to the refusal of the Environmental Protection Agency to order these proceedings.

2. The bill provides for an indemnity when a pesticide is suspended or canceled, thereby unfairly placing the burden of financial loss, in circumstances where it has been determined that harmful pesticides must no longer be used, upon EPA, and ultimately the taxpayer, rather than upon the manufacturers and heavy users of those pesticides. This unique indemnity provision is inconsistent with the standard practice in comparable situations, such as with recall of products containing cyclamates, or recall of automobiles, soups and other products, in which manufacturers, retailers, or users have properly borne the risk. The indemnity provision also discourages self-policing in the pesticide industry by removing an otherwise important deterrent to promotion and sale of a pesticide whose safety and potential and environmental harm are known by its maker to be in question. At the very most, such an indemnity provision should require that the pro

ducers, and/or formulators, from their own funds, purchase back the unused and canceled pesticides from purchasers and ultimate users at the price originally paid and dispose of these pesticide stocks in such manner as the Administrator shall direct. Such a procedure would follow the legal precedents that have evolved in the recent law of product liability and warranties.

3. Several provisions require that information submitted by the pesticide manufacturers be kept confidential by EPA. These provisions may, in fact, allow the pesticide manufacturers to define, as a practical matter, what submissions constitute trade secrets and confidential material to which the public may not have access. Such provisions are not sufficiently narrow; they inexcusably shield the manufacturers from appropriate public scrutiny.

4. The bill currently permits the same pesticide to be registered by both general and restricted uses, providing only that affixed labeling adequately describes for which intended purposes the pesticide falls into one or the other category. Obviously such a hybrid label would be impossible to enforce, especially if the very same package or container carried but one label covering both use classifications. Separate packaging and labeling should be required for each registration classification.

5. The bill's provision for appointment, by EPA, of a committee from a list of names submitted by the National Academy of Sciences to determine questions of scientific fact certified to it during the course of cancellation hearings by the hearing examiner is, as currently drafted, utterly unworkable. Such a procedure would largely duplicate the fact finding process which appropriately must continue as an essential aspect of adversary proceedings. And it would unduly prolong those proceedings since the appointment of the committee, its constitution, and its report may well take much longer than the hearing itself. A final decision might thereby be delayed. If the advisory committee mechanism is retained, it should proceed in its study concurrently with the adversary hearings, and only one committee should consider all the ramifications of the problems raised by the economic poison under review.

6. The bill should retain the requirement of the current law as it is interpreted by EPA that the agency must consider whether a pesticide is essential in determining whether to permit its registration. The bill presently provides specifically that essentiality should not be considered as a factor in the registration decision. Excluding consideration of essentiality, in fact, inevitably interferes with the necessary calculation of the costs and benefits of a pesticide by rendering irrelevant evidence of existing chemical, biological, and cultural alternative methods of control.

7. The legal responsibilities of pesticide formulators, as opposed to producers, is ambiguous under the bill. While it is clear from the bill's definition of a pesticide producer (and also from page 17 of the House committee's report) that it is the drafter's intent that the persons who dilute or alter pesticides for further use should not be considered as producers, it is very unclear why formulators should be excluded from such legal requirements as the bill would place upon producers, such as the requirements under section 8 to keep books and records for inspection by the Environmental Protection Agency, and section 7's requirement of registration of establishments.

8. Too little specific emphasis is given in the current bill to protection of farmworkers likely to be exposed to pesticides and herbicides. If these shortcoming could be eliminated from the present bill, and they can be, the proposed bill would serve as a substantial improvement over the present FIFRA, and as such, would be of immense service to the public, government, and pesticide industry as well.

As a lawyer who practices under the provisions of FIFRA, I can assure you, sir, that the rules of practice implementing the act are of the utmost importance. The Environmental Protection Agency, noting in the present rules of practice many shortcomings which have been brought to light by the DDT cancellation hearings and during appointment of various advisory committees on pesticides, has very wisely promulgated proposed new rules governing advisory committees and rules of practice governing hearings under the Federal Insecticide, Fungicide, and Rodenticide Act. These proposed new rules will be of very great service in strengthening any version of FIFRA, and is considering changes in the present version of the bill, this committee and its staff would be very much assisted in their task by a close examination of the new rules of practice which have been promulgated and proposed by EPA. If I might quote from EPA's explanatory statement in the preface to these proposed rules of practice, it might assist the committee to understand why EPA has found it necessary to propose these new rules:

Recent judicial decisions have underscored the importance of bringing 'the public into the decision-making process and creat[ing] a record that facilitates judicial review' of decisions concerning the registration and cancellation of pesticides. Environmental Defense Fund v. Ruckelshaus, 439 F. 2d 584 (C.A. D.C. 1971); Wellford v. Ruckelshaus, 439 F.2d 598 (C.A. D.C. 1971). Of particular concern to the courts was the absence of any procedure whereby administrative appeals could be taken from the Agency's refusal to issue notices of cancellation. These rules represent an attempt by the agency to be responsive to those decisions and to insure that the public voice is heard in the decision-making process. (Federal Register, vol. 37, No. 15, p. 1059.)

Since we feel it may be helpful to this committee and its staff to consider the proposed rules of practice for implementing FIFRA in assessing the proposed bill amending it, we have attached an appendix C to our statement EPA's proposed new rules of practice. These rules of practice are not perfect in their present form, and therefore we have also attached as appendix D the comments of the environmental defense fund suggesting proposed improvements to these rules of practice before they are made final. However, these proposed new rules covering FIFRA's implementation are a vast improvement over the present rules, and care should be taken that the relevant sections of FIFRA reflect the same considerations as these rules and are coordinated with them.

With the addition of these suggested improvements to the proposed new rules of practice, and with improvements we have suggested today in H.R. 10729, the American public could be greatly aided by a strengthened regulatory procedure which would not only prevent harmful economic poisons from ever reaching the market, but which would also prevent the pesticide industry from incurring heavy economic losses by registering such a pesticide, only to have it subsequently canceled. From EDF's vantage point, as well as that of the pesticide industry, part of the problem with pesticide regulation has been the procedural vagueness and inadequacy of the law. With the coordina