ADDITIONAL ARTICLES, LETTERS, AND STATEMENTS

STATEMENT OF JOHN W. SCOTT, MASTER OF THE NATIONAL Grange

Mr. Chairman and members of the subcommittee, the National Grange supports H.R. 10729 as amended by the Senate Committee on Agriculture and Forestry, to amend the Federal Insecticide, Fungicide and Rodenticide Act. In our judg ment, the bill as passed by the House and improved by the Senate Agriculture Committee is a major improvement over the legislation as it was first introduced by the Administration.

The bill is basically sound and is a substantial improvement over present law. We supported passage of the House Agriculture Committee bill before the House. We were opposed to all the Hart-Nelson amendments that were presented to the Senate Agriculture Subcommittee. There was one exception, however. We did support the striking of the indemnity section (Section 15) unless it was amended to cover any crop loss suffered by a producer which is the result of the concellation, suspension and/or stop-sale and seizure of a previously approved and registered pesticide by the Administrator of E.P.A. Since that time the full Senate Agriculture Committee has approved H.R. 10729 with amendments. We have studied the Committee Report and are in agreement with the amendments added by the full Committee and believe that only minor amendments are necessary in order for the Administrator of E.P.A. to properly control the use of pesticides in protecting human health and the environment.

The delegates at the 105th Annual Session of the National Grange adopted the following resolution which fully explains our position :

INDEMNIFICATION TO AGRICULTURAL PRODUCERS

"Be it Resolved, That the National Grange recommends that agricultural producers be indemnified for financial losses sustained due to the confiscation of any agricultural commodity because of contamination by the application of pesticides and/or from any other source, by the appropriate regulatory agency, Congress or persons responsible for the contamination, if such contamination is due to no fault on the part of the producer; and be it further

"Resolved, That agricultural producers be indemnified for financial losses sustained due to crop losses which are the result of the cancellation, suspension and/or stop-sale and seizure of a previously approved and registered pesticide by the Environment Protection Agency, if such cancellation, suspension and/or stop-sale and seizure regulation is issued after the start of the growing season of the crop in question. Such indemnification shall be made by the regulatory agency issuing the regulation or by the United States Congress; and be it further

"Resolved, That no language be permitted in any pesticide legislation now pending or proposed in the future before the Congress that would foreclose an agricultural producer from seeking indemnification from the courts or from the U.S. Congress."

We were concerned about Sec. 15, pertaining to indemnification, particularly if the section could not be amended to cover crop or livestock losses sustained by producers when a pesticide was suspended, cancelled or otherwise denied a producer, if such cancellation came during the middle of a crop year. Sec. 15 was not amended as we requested, so therefore we support the deletion of this section. Furthermore, the committee report set out guidelines for the Administrator to follow in such situations and we do not believe this section is any longer necessary in order to indemnify dealers, distributors and users for any product they may have on hand at the time of cancellation.

The National Grange will support needed minor technical or clarifying amendments to H.R. 10729 as reported by the Senate Agriculture and Forestry Committee. In addition, we support the following proposed amendments:

1. A provision on page 78, lines 14 through 20, prevents data submitted by an applicant to substantiate claims for registration from also being considered

(177)

in support of any other application. Admittedly, agricultural chemical manufacturers invest huge sums in research. The fact still remains that much of the data, particularly in the area of effectiveness, is derived from land grant colleges which are publicly financed. Chemical manufacturers today are provided patent protection for some 17 years. However, the secrecy provision in the bill as written in effect extends the exclusive right to produce and market beyond any patent coverage, and thus subverts patent laws. We strongly urge the removal of this provision as it can only result in higher costs to farmers. If this recommendation is accepted, page 78, lines 14 through 20 will require modest rewording. 2. The provision on page 82, lines 14 through 24, gives the Administrator broad powers for classification of products for restricted use. Certain compounds-aldrin, dieldrin, DDT, 2,4,5-T, 2,4-D, toxaphene and others have been on the market for many years. They have been tested and tried not only for their effectiveness but also for the effect of their application upon the environment and human health. We would hope that this committee, with the help of the EPA, could spell out the intent of this legislation with respect to classification for use of those pesticides which have been thoroughly tried and tested in actual field use over a long period of time and for which no conclusive scientific evidence has been submitted that proves these chemicals harmful to health or environment when used as directed.

3. We are puzzled by the specific instruction given on page 117, lines 20 through 22, to give priority to biologically integrated alternatives for pest control. We recognize that this language may have special appeal to some, but it really is meaningless. If the intent is to limit choice of research by emphasizing methods of biological pest control, then we question whether this is in the best interest of the public. There is ample proof that biological methods are not necessarily free of hazard, more economical or more effective to any greater extent than are chemical methods. We suggest that the Administrator not be limited in the pursuit of practical, safe and economical means of pest control.

At the time H.R. 10729 was being considered by the Subcommittee on Agricultural Research and General Legislation of the Committee on Agriculture and Forestry, four amendments were suggested on which the Subcommittee could not reach agreement:

1. Authorize third parties to petition for cancellation or suspension and obtain judicial review;

2. Would strike out the provision for indemnities to owners of pesticides for which registration is first suspended and then cancelled;

3. Would provide for citizens' civil actions for injunctive relief against the United States, the Administrator or any other person; and

4. Would strike the provision of section 3(d) (1) (C) authorizing the Administrator to impose restrictions other than the requirement that the pesticide be applied by or under the direct supervision of a certified applicator.

With respect to these four amendments the National Grange is in complete agreement with the disposition made by the Senate Committee on Agriculture and Forestry. The language contained in H.R. 10729, as reported by the Senate Agriculture Committee and Committee Report No. 92-838 accompanying H.R. 10729, covers the objectives and objections of the National Grange.

The Committee compromise proposal for Amendments 1 and 4 is far better than the amendments suggested by the National Agricultural Chemicals Association, Amendent No. 1010 by Senator Hart and Senator Nelson, and the suggestion made by the Environmental Protection Agency.

The compromise language adopted by the Senate Agriculture Committee makes it clear that the provision for cancellation hearings initiated by the Administrator is an alternative method of initiating cancellation proceedings, and that its purpose is to provide a method of examining the need for cancellation in a way that will not automatically result in cancellation simply through the default of the registrant in responding to the notice. The crieria for initiaing cancellation proceedings are those now in the Act. We believe they provide more definite guidelines than those approved by the House which would appear to give the Administrator almost unbridled discretion.

We therefore respectfully urge, Mr. Chairman, that after a review by this Subcommittee and the full Commerce Committee, the bill reported by the Senate Agriculture Committee be reported to the Senate for immediate action.

The almost complete ban of D.D.T. by the E.P.A. (announced June 14) would not have been necessary had the pending legislation been in effect. The legislation would allow the administrator of E.P.A. to require that if a pesticide is classified for restricted use it must be applied by or under the direct supervision of a certified applicator and would be subject to other control restrictions. For example, it could permit the Administrator to enforce the regulation of essential uses of pesticides for use only in supervised programs, for use only in specific instances in which it is essential, and for use only in the minimum quantities required in each instance, for use.

Thus, the Administrator would have the authority to enforce pesticide use under strict control, in contrast to the current law which often forces the Administrator to permit indiscriminate use or effect an outright ban.

In our judgment this is a reasonable and acceptable solution. It protects the farmer's use of a necessary product for use on specific pest problems and at the same time assures adequate protection to human health and environment,

In conclusion, Mr. Chairman, we strongly support the Federal-State approach contained in H.R. 10729 for carrying out the purposes of the Act. However, we also are just as strong in our support for adequate Federal monies being authorized so that the participation by the States will be encouraged. The States are now struggling under severe financial strains in carrying out their responsibilities under various Federal programs. We therefore respectfully request that the Subcommittee keep this in mind during the drafting of the final legislation.

We appreciate this opportunity to present the Grange's views on H.R. 10729 and wish to express our appreciation to you and the Subcommittee for conducting further hearings on such a vital and important legislative matter that will affect the lives of everyone.

STATEMENT OF JOHN W. GRANDY IV, ADMINISTRATIVE ASSISTANT FOR WILDLIFE, NATIONAL PARKS AND CONSERVATION ASSOCIATION, WASHINGTON, D.C.

My name is John W. Grandy, IV. I am Administrative Assistant for Wildlife at the National Parks and Conservation Association, 1701 18th Street, N.W., Washington, D.C. 20009 I appreciate the invitation of the Committee to testify in these hearings.

The National Parks and Conservation Association is the leading national conservation organization concerned primarily with the protection of the National Park System, but also with other major environmental and conservation subjects such as wildlife and forestry.

The NPCA is an independent, private, non-profit membership institution, educational and scientific in character, with more than 50,000 members throughout the United States and abroad, all of whom receive the monthly National Parks and Conservation Magazine: The Environmental Journal.

Mr. Chairman, the National Parks and Conservation Association has supported, on invitation, and continues to support the amendments proposed by you (Senator Hart) and Senator Nelson to H.R. 10729. We are extremely pleased and gratified that the Senate Committee on Agriculture and Forestry adopted strengthening suggestions concerning judicial review, the elimination of indemnities, and categories of general and restricted use. We are distressed, however, that other strengthening amendments proposed by you and Senator Nelson have not yet been included. Specifically, we strongly urge that the following proposals be adopted:

1. Citizen suits should be allowed so that private parties or organizations can force other private or public individuals or bodies to comply with the provisions of the legislation. There is absolutely no persuasive reason why this should not be allowed.

2. Registrants should be required to divulge test data to the Administrator (of EPA) at least sixty (60) days prior to registration of a pesticide, and the Administrator should be required to release such data. Of course, trade secrets would not be divulged by the Administrator.

3. Maximum penalties for violation of the Act should be increased to $10,000 so that wealthy corporations, for example, may be effectively penalized for violations.

4. The principle of "unreasonable adverse effect" should be used as a criterion for registration, rather than the proposed "substantial adverse effect." Obviously,

this should embody the concept, put forth by Senators Hart and Nelson, that a pesticide causing even “insubstantial affects” should not be registered if there is a (are) safe, effective substitute(s).

5. Interested parties should be allowed to intervene in cancellation hearings. Mr. Chairman, I would like to compliment you and Senator Nelson for the fine amendments you have submitted. You will note that our suggestions (above) follow your proposed amendments, with very few changes. On behalf of the more than 50,000 members of the National Parks and Conservation Association, I urge you and this good subcommittee to do everything possible to have these provisions incorporated into H.R. 10729.

I thank you again for the invitation to submit these views.

VITAMIN INSTITUTE,

North Hollywood, Calif., July 6, 1972.

COMMITTEE ON COMMERCE,

Subcommittee on Environment,
U.S. Senate, Washington, D.C.

GENTLEMEN: I appreciate your Committee's concurrence with the Committee on Agriculture and Forestry in including the Plant Regulator Clarification Amendment, after studying it, in your Committee's recommendations for H.R. 10729.

I also appreciate your Staff's having advised me that you find "absolutely no problem with it." This coincides with similar observations by the Senate Agriculture Committee and Office of Environmental Quality personnel.

Welcome, too, is the clause ". . . we have no objection to it . . ." in the Hearings statement (sent me through the courtesy of one of the 34 associations sponsoring this needed Amendment) of a spokesman for the Environmental Protection Agency.

Actually, the Amendment was provided containing such unusually tight a qualification as non-toxicity even in the undiluted packaged container, in order to bend over backwards to avoid any basis for objection, valid or invalid, because of the belated time of its subject problem's arising, long after both Houses' 1971 hearings.

Thus, when the EPA Office of Legislation suggested that a non-objection waiver from the EPA Pesticide science side would enable that Office to acknowledge that the EPA has no basis for objection to this Amendment, the EPA's number-one scientist who is also the Deputy Assistant Administrator for Pesticides Programs, answered “That is wording that we would not object to. So go ahead and give it to the Senate and let's see what happens."

In fact, I have yet to hear of any citizen's being able to think of any disadvantage to the Amendment. The Council on Environmental Quality staff told men that they "would have no problems with it," "no difficulty at all," that they "can't imagine it's causing anybody any difficulty."

They stated that no problem like that occasioning the need for the Plant Regulator Clarification Amendment had come to the attention of government agency staff members when they were working upon recommendations for revision of the Pesticide Act. Also that a number of people over a period of time have checker it for loop-holes, and have found none.

However, it has been suggested to me that it would serve a useful purpose to forward to you, for inclusion in the record of your Hearings on H.R. 10729, this statement, to aid to avoid future misconstruing of the legislative intent of the Plant Regulator Clarification Amendment, through a reading alone of the EPA other remarks related to it, lacking intimation that differing view abounds.

It is my understanding that personnel of each of the Senate Committees involved, with some of whom I have had brief conversations on the subject, by phone, agree with me that the intent of the Senate bodies in this respect will be found far more accurately in the wording of the Amendment itself, as well as in my statement (which needs only slight allowance for type-setter's errors in the Hearing Record) with exhibits of March 7, 1972 before the Subcommittee an Agricultural Research and General Legislation of the Committee on Agriculture and Forestry of the Senate, and inter-spaced questions and comments of the Chairman (plus any history reflecting Senatorial conferences in executive session in involved Committees).

This is particularly to the point since the purpose of the Amendment being discussed is to take cognizance of the need to clarify and improve wording to implement the original legal purposes of the Congress in the 1959 amendment to the FIFR Act.

Although I respect the EPA's effort to be of service in discussing this, only a few examples of the various repeated needs to look to the Amendment itself, with my testimony, exhibits and Senatorial comments include among others: Whole actual products, not isolated ingredients, are what are mentioned in this Amendment.

A purpose of this Amendment is to iron out confusion in interpretation connected with previous Regulations of the Pesticide Regulation Division, which seemed to have the effect of defeating the proper, Constitutional purposes of the Act. My Senate Agriculture Hearing statement mentioned that a Member of the Congress already observed, in the 1971 House Hearings connected with revision of this Pesticide Act, in interviewing another top official of the EPA (page 25 of the Hearing Record): ". . . we get a little head-shy of your regulations. We think we write the law and then you regulate us out of court; we do not like that. We would not like it when yo do this, if you do."

He was answered: "Then we will not do it."

But, still apparently feeling further injunction in order, the Congressman pursued "So I hope you take that as a kind of a red flag.”

The Plant Regulator Clarification Amendment was written with the aid of the intelligent thinking of men involved with Senate and House Agriculture Committees, and purposes to be able to stand alone without need to project regulations which might have the effect of cancelling again its purpose. Also, if products not the subject of the Plant Regulator Clarification Amendment should be treated by EPA regulations, it would be appropriate for that not to be attributed to this Amendment.

The EPA Administrator has stated that environmental decisions are societal, for the public arena. In the present case, the subject is non-controversial, as no one can think of any basis for objection to the Amendment. Persons and groups aware of the problem and having an opinion have turned out to be informed enough to favor the Amendment. Therefore, and because of the clear environment and equitable benefits to the nation, the favorable reporting of it by the Committee on Agriculture and Forestry, and then again by your Committee in further review, is responsive to the public will and need.

This, of course, is the American way to handle a subject when the legislature is aware of it in time, to legislate, with the resultant always preferable "government by law, rather than by man." Unfortunately, the balance of the part of the EPA statement related to this Amendment illustrates well the need for this and all other available clarifying directive from the Congress. Projection at this early time of various regulations (which would probably be unnoticed in the Federal Register) pursuant to this Amendment sound like an inappropriate plan on the part of EPA. Particularly is this true because of the disconnection from and non-responsiveness to the Amendment exhibited in the Agency comments. Certainly, should this Amendment become enacted, I would trust that the EPA would be expected simply to adjust fairly to the legislative purposes of the Amendment, and that responsible officials would expect the same of lower echelons.

No one sympathizes more than I do with the avowed purpose of EPA, but though the EPA spokesman and his colleagues seem to be conscientiously trying to work toward it, I am sure that he has grown used to finding in the course of his public interchanges throughout the nation, occasional sincere taking issue. In this case, it is necessary to take issue with the various features of all the brief EPA Hearing statement relating to this Amendment-except for the part wherein it was stated "we have no objection to it."

It is believed that one or more EPA staff persons, apparently within the Pesticide Regulation Division, presumably acting through a mistaken sense of conscientious loyalty to the Division, may be responsible for a continued cropping up from way back, long before the Committees' Hearings of 1972, of admittedly stock phrases plugged into comments that fail to respond or relate adequately to the Amendment itself, the Agriculture Subcommittee Hearings record, or even realistically to current and past interpretations of the Act and Regulations by the Pesticide Regulation Division.

I would be glad to explain further to any interested Senator or staff member or any other official, including the EPA Administrators, the disparities of the EPA statement with respect to this Amendment.

It is true that until the Amendment is on the books to spell out the meaning of the law, a need exists for relief, to protect the public convenience and necessity, as well as the maker of the unique products needed by the public.