It seems to us that including the phrase "including benefits from the use. . gives special emphasis to one element in the weighing of risks vs. benefits. It would be better either to eliminate this phrase, or else to broaden the definition as the Hart-Nelson amendment proposes to make clear the range of factors which will be weighed in deciding whether to register a product.

The Hart-Nelson amendment adds the new definition to the bill "Unreasonable adverse effects," which would be used in registration and classification. EPA commented to the Senate Agriculture Committee that the new term "does not differ in substance" from the definition of "substantial adverse effects." EPA's comments did not address the full proposed definition, but centered around the difference, or lack of difference, between "any injury" and "any risk."

In our view, there is a difference between "any injury" and "any risk". It seems to us that "risk" includes the concept of possibility of injury in addition to actual injury. As EPA noted in its comments, "In applying a section like that proposed, we would in practice look at the likelihood of injury and the anticipated benefits, which is what subsection (bb) of H.R. 10729 seeks to achieve." We would certainly hope that EPA will consider the "likelihood of injury", which is just what "risk" means in our opinion.

We have had numerous discussions with EPA staff about this definition and have been assured that the bill's definition means exactly what we want it to mean. But we are not certain that some future Administrator or a judge will agree with the interpretation which the EPA staff gives to this term.

We believe that in the balancing process, EPA should take into account the "economic, social and environmental costs and benefits of the use of the pesticide, including the availability of alternative means of control," and that the HartNelson amendment will make this clear.

The amendment would also strike the phrase. "The Administrator shall not make any lack of essentiality a criterion for denying registration of any pesticide."

The curious double negative sentence means in plain English that although a pesticide is not essential, it should still be registered. The practical effect of this is a proliferation of chemicals for which there is no real need, and we do not believe this serves the public interest.

In commenting to the Senate Agriculture Committee on this amendment, EPA said, "We believe the present language of section 3 (b) is preferable since it states agency policy. [This appears to be a typographical error in giving the section number, and thus makes no sense.] Where two products pose the same degree of risk and are equally necessary and effective, one should not be registered in preference over the other. Of course, where the same control can be achieved more safely than with a product which is being examined, the definition of substantial adverse effects would itself mandate consideration of the alternatives."

In its report, the House Committee "felt that continued use of this disputed procedure would place all interested parties involved at a disadvantage. The agency agreed, and the Committee therefore adopted the language of the last sentence of section 3 (c) (5).

The essentiality doctrine was used by EPA in the DDT case. We find the concept of limiting uses of pesticides to those uses which are essential is a sensible one, and as far as we can tell the only parties who will be "placed at a disadvantage" by this concept are manufacturers who will not be able to sell products for which there is no real need. Farmers would not be injured by this doctrine, for presumably if a use of a pesticide were essential (i.e., there was no other means of dealing with the particular problem), they would be able to use it.

The Senate report further muddies the water on this issue, and we hope that this Committee will ask EPA to clarify why they agreed to drop the essentiality criterion.

EXPORTS (AMENDMENT NO. 1013)

This amendment addresses a very serious problem. As the bill stands, manufacturers can export any pesticide they can sell, regardless of its hazardousness or whether it is legal in this country. Regardless of regulations in this country, pesticides misused in other countries can affect our own environment. Persistent mobile pesticides such as DDT move freely through wind and water. so DDT used anywhere can still contaminate this country.

One part of the Hart-Nelson amendment would direct the Administrator to prohibit the export of pesticides which would have "unreasonable adverse effects" on the environment of the United States.

Diplomatically speaking, it is not considered appropriate for this country to tell other countries that they should not use a particular product because it will injure the citizens or environment of that country. This decision must be made by the importing nation. However, at the very least we should make that Nation's government aware of the hazards of the product, so that it can make an informed decision and take steps to protect its citizens and natural resources.

A good example of the danger of exporting pesticides to other countries is the recent mercury poisoning incident in Iraq where several hundred people are reported to have died and many others were seriously injured. According to an article in the New York Times, mercury treated wheat seeds, imported from Canada, were fed to cattle. A warning was printed on the sacks indicating that the seeds were for planting only, but nonetheless the peasant farmers fed the seeds to their cattle with disastrous results.

A similar tragedy on a small scale occurred in Alamogordo, New Mexico several years ago, when three children suffered severe brain damage after having. eaten pork from animals fed with mercury treated seed grain. If our own citi zens are unable to follow directions and warnings, we should not assume that people of other countries will be able to understand the hazards of pesticides and be able to use them properly. However, by providing more information to their governments about the pesticides, we will be taking a step in the right direction. Although the bill calls for cooperation with other nations in this problem, we are not so naive as to assume that such international agreements can be worked out quickly. In the meantime, we have a moral obligation to do whatever we can to prevent pesticide poisonings and environmental degradation in other lands, as well as our own.

Regulation of Restricted Use Pesticides

The Senate Agriculture Committee considered but did not adopt an industry amendment which would have removed EPA's authority to impose additional restrictions on "restricted use" pesticides. (Sec. 3(d) (1) (C). We are of course very relieved that this crippling amendment was not adopted, but we are disturbed by some language in the Senate Committee Report on this subject:

"... (2) few pesticides which are now registered would be classified for restricted use. Since the present criteria for registration, the criteria for registration under the bill, and the criteria for restricted use classification under the bill are essentially similar, except for the provision for additional restrictions in connection with classification for restricted use; it follows that currently registered pesticides were at the time of registration found to be safe based on present criteria without the imposition of such additional restrictions." (page 5) (emphasis added)

Perhaps the Committee's assumption would be true if the misbranding provision of FIFRA, which does contain criteria similar to the proposed bill, had actually been applied consistently. The two key phrases in the misbranding provision are: "(c) if the labeling accompanying it does not contain directions for use which are necessary and if complied with adequate for the protection of the public;" and "(g) if in the case of an insecticide, nematocide, fungicide, or herbicide when used as directed or in accordance with commonly recognized practice it shall be injurious to living man or other vertebrate animals, or vegetation, except weeds, to which it is applied, or to the person applying such economic poison;".

These phrases were not applied during registration, or many products now on the market or which have been cancelled recently would never have been registered. We question how the Agriculture Committee can say that few pesticides will be classified "restricted" because they were found to be safe at the time of registration. The Committee is ignoring the fact that pesticide regulation in past years has been careless at best and scandalous at worst, as brought out in the Fountain hearings. (1969, House Government Operations Committee). Although since that time, improvements have been made and authority for pesticides has been transferred to EPA, we sincerely doubt that EPA has had the time or staff to review the 32.400 products which are registered. Some of these are doubtless products which were originally registered by USDA and may well have been inadequately scrutinized at that time.

The fact that a product is now registered does not mean that it should be placed in the "general use" category. A mountain of scientific evidence about adverse effects of pesticides has been accumulated in recent years, and this must be taken into consideration in categorizing pesticides. The Committee Report notes that EPA is upgrading its criteria (as to safety and effectiveness) for regitration and will use the revised criteria for classification of existing pesticides under the new Act. If this is so, it seems logical to expect that a good many pesticides may well have some sort of restirctions on their use.

Control of Use

The mechanisms which would control actual use of pesticides have been seriously weakened from those in the Administration's original proposal.

The original S. 745 included a permit system, a sort of prescription approach, to control extremely dangerous pesticides. The Agriculture Committees dropped this from the bill, but did include language in Sec. 3 concerning additional restrictions on restricted pesticides.

The proviso that restricted use pesticides be applied only by a "certified applicator" sounds good, but is full of loopholes. For one thing, the phrase "under the supervision of a certified applicator" does not require the certified applicator to be physically present, unless required by the label. Since this is the case, Iwe believe at the very least that the bill should make clear that the certified applicator is legally responsible should the pesticide be misused by the persons under his supervision. As the bill now reads, it is not clear whether he is responsible.

Under this bill, a pesticide can be classified for both restricted and general use. This seems to us to pose formidable enforcement problems, and the Senate Committee improved the House bill by authorizing the Administrator of EPA to require separate packaging and labeling for restricted and general use products. (Sec. 3(d) (1) (A).) We belive that such separate packaging and labeling should be mandatory to avoid confusion among consumers, and misuse of restricted products by unqualified persons.

To a great extent, control of pesticide use will still depend largely on labeling, which has proven to be an ineffective means of control. Labels are not very useful since many people do not bother to read them, or cannot understand them because they are contradictory and confusing. For these reasons, the additional regulations which the Administrator may promulgate are exceedingly important and we very much hope that they will be addressed to such issues as control at point of sale. The bill does not prohibit anyone from buying any pesticide, even though he may not legally use it. Given the difficulties of enforcement, the most effective means of controlling dangerous products is to control their sale so that they will not be bought by persons who do not know how to use them. Regulations by Local Governments

Language in both the House and Senate Agriculture Committees' reports prohibits political subdivisions below the State level from regulating pesticides in any way. We must disagree with this in principle and in practice. If a municipality or a county, for instance, wishes to regulate pesticides more strictly than its state or the federal government, we see no reason why they should be able to do so. A number of local governments have such regulations, often patterned after tough state regulations (in another state than the local government.) For example, several years ago the Board of Supervisors of Fairfax County, Virginia passed a resolution which set guidelines for use of pesticides by county employees. These guidelines include a prohibited list (which includes such persistent pesticides as DDT, dieldrin, etc., and others which are highly toxic), and a restricted list of products which can only be used if there is an infestation and there is no alternative means of control. (The prohibited and restricted lists are similar to New York State's tough pesticide law.) Although private citizens are not bound by these guidelines, the County Agricultural Extension Agent uses them in advising the public about the use of pesticides.

We believe that such local action is both appropriate and in the public interest. It can help guide users to less dangerous pesticides, as well as guiding county employees. It does not pose a burden on interstate commerce, as the Senate asserts since it puts no requirements on the manufacturer.

Such regulations can be particularly valuable in situations where the State's pesticide law is weak, and in cases where massive spraying programs are underway. It may well be that the citizens of a given community do not wish it to be sprayed with a particular pesticide, and they should have some voice in this decision.

EPA commented on this report language: "EPA opposes the proposed report language which would remove all authority for political subdivisions of States to regulate pesticides. We base our opposition on the principle that Federal regulation of pesticides should only be a minimum level of regulation which could be exceeded by States or political subdivisions if necessary; and the fact that some large municipalities have programs regulating pesticides."

We agree with EPA, but we are disheartened to see their admission that the much-touted pesticide bill will in fact provide only a "minimum level of regulation."

There are numerous other items in H.R. 10729 which deserve comment, but to avoid repetion these will be discussed by representatives of other organizations. Thank you again for the opportunity to present our views.

(Whereupon, at 12:24 p.m., the subcommittee recessed, to reconvene at 10 a.m., Monday, June 19, 1972.)