Where two or more pesticides carry the same degree of risk and benefits, our policy is that each can be registered if it meets the other requirements of the act. The provision of H.R. 10729 which states that nonessentiality may not be a registration criterion was written against this background of administrative practice.

Amendment 1003 would make submission to the Administrator of safety and effectiveness test data by every registration applicant mandatory; permit public access to nontrade secret data in support of a registration application once it has been submitted to the Administrator and before he has made his determination; and would specify those persons to whom a trade secret may be revealed.

Requiring the submission of test data with every registration application is unnecessary since this Agency in many cases already has sufficient information to make a judgment consistent with the purposes of the act.

We also feel that public access to registration application information before a registration decision by the Administrator could lead to interminable delay of the entire registration process.

There is a constant flow of documents which come into the Agency while a registration is pending. The sheer volume of paperwork involved in making these public prior to assembling a file and receiving comments from our reviewers would create a major and unnecessary administrative burden.

We believe that under present law-and rules promulgated pursuant to present law-persons adversely affected by a registration action of the Administrator have-and under the bill would continue to have all necessary and reasonable access to registration information.

Regarding instances in which trade secrets may be revealed, we view the amendments as too broad and suggest the provision be revised to control revelation of trade secrets to the public and to provide that revelation during administrative and judicial proceedings would be in camera. We have submitted specific language to accomplish this, which is part of the Senate Agriculture Committee's hearing record and we urge you to consider it.

Amendment 1004 would delete from section 3 (c) (1) (D) the provision which prohibits the Administrator from considering certain test data submitted in support of a registration; and would insert a provision which would explicitly state his authority to consider any test data submitted to determine the adequacy of an applicant's test data.

We fully concur with both proposals. I have already commented on both provisions of this amendment. The latter provision was incorporated in the bill reported by the Senate Agriculture and Forestry Committee.

Amendment 1005 would amend the criteria for classifying a pesticide as general or restricted use by clarifying the Administrator's flexibility to determine that some products, no matter how labeled, cannot be rendered safe for use without additional regulatory restrictions.

We feel the amendment to the classification criteria which is contained in the reported bill adequately solves the problem which amendment 1005 was aimed at.

The Senate Agriculture and Forestry Committee has restored the "commonly recognized practice" language from present law which, we believe, permits this Agency to take into account the possibility for misuse and negligent handling.

While one Federal court has placed a narrow construction on this language, we feel that decision is wrong and that this language, as construed by Agency decisions, gives us the flexibility we need. If the subcommittee feels further amendment is necessary, we would be glad to work with you on it.

Amendment 1006 would emphasize the right of any interested person to participate as a party to any hearing requested following an order of the Administrator cancelling a registration. The amendment would also authorize the Administrator to impose conditions or limitations on the hearing.

We agree that any interested person should be able to intervene in a hearing. This is the practice under the present law and that practice is, we believe, carried forward by H.R. 10729 as reported and no further language is necessary.

We believe that the deletion by amendment 1006 of the provision authorizing the Administrator to determine on his own initiative that a hearing should be held is undesirable as is deletion of the provision governing issuance of subpenas by the hearing examiner to compel testimony. We view both as important means for the resolution of issues involving pesticides, and we support the revised language of the reported H.R. 10729 which clarifies those authorities.

Amendment 1007 would eliminate the right of any party to a hearing on a registration to insist that relevant scientific issues be submitted to a scientific committee, giving the hearing examiner the exclusive authority to determine what questions of scientific fact should be submitted.

We do not concur with the amendment, which would appear to give a hearing examiner freedom to ignore a request to refer a scientific question to an expert body. We believe the revised language in the reported bill gives the examiner discretion to determine what relevant issues of fact should be submitted to the advisory committee and we favor such discretionary authority.

The amendment would also prescribe the makeup of an advisory committee, which we regard as impractical, and would provide that the recommendations of an advisory committee report are not binding on the Administrator, which we now concur with and practice.

We note that as drafted the reported bill could be construed so as not to permit reference of a question of scientific fact, which arises during the course of a hearing and was not anticipated at the outset. We would, in such cases, read the language as authorizing the hearing examiner to refer such unforeseen questions to a committee during the course of a hearing.

Amendment 1008 would increase from $1,000 to $10.000 the maximum criminal penalty for a violation of the act by a private pesticide applicator. We do not object, as the court may set the penalty to fit the particular violation.

Amendment 1009 would delete all of section 15, indemnities. This deletion has already been made by the Agriculture and Forestry Committee, and we fully support the deletion.

Amendment 1010 would provide that a petitioner for an order or rule by the Administrator may request judicial review if his petition is denied in whole or in part. We do not object, but view the provisions of the reported bill as not preventing such a request for review.

The amendment would also provide that a stay of an EPA action may be granted by a reviewing court only under certain conditions. Again, in our view the present provisions of the reported bill are fully adequate. If the subcommittee prefers more explicit language, we would be pleased to assist in drafting such provisions.

Amendment 1011 would insert a new section, "Citizen Civil Actions," which would provide for citizen suits against any person, including any Government agency, upon an alleged violation of the act; and against the Administrator upon his alleged failure to perform any required, nondiscretionary act or duty under the act.

While there was no provision for citizen suits in the administration's bill, we would not object to such an authorization here under the following circumstances:

We feel strongly that it should be limited to suits alleging violations only against users and producers.

We also feel that such actions should be required to be brought initially where the alleged violation has occurred, and that express provision should be made for consolidation in appropriate circumstances.

We have submitted specific language to accomplish this and urge its consideration.

Amendment 1013 would impose recordkeeping and reporting requirements on producers of exported pesticides. The amendment also requires the Administrator to furnish foreign governments with notice of the availability of registration application information, all registered labels, and all suspensions, cancellations, and changes in classification.

The administration's bill, S. 745, would have required that notices. of cancellation and suspension actions be furnished to foreign governments.

In our earlier comments on additional provisions of amendment 1013, we stated that they would create a heavy administrative burden. However, upon further review, we do not believe that this would be the case and do not object.

Amendment 1017, proposed by Senator Stevenson, would impose pesticide labeling, testing, classification, and user certification requirements in order to protect the health of farmers, farmworkers, and others who may come into contact with pesticides or pesticide residues. We are in accord with the Senate Agriculture and Forest Committee report on H.R. 10729, which states that the bill, "Provides complete safeguards to protect farmers and others." And emphasizes that the bill requires the Administrator to impose such requirements as are the subject of the proposed amendment.

Mr. Chairman, that completes my prepared statement. We would be glad to respond to any questions.

Senator INOUYE. Mr. Dominick, the subcommittee has prepared several questions which we would like to submit to you for your response. In addition, Mr. Bickwit, the staff counsel, has a few questions to ask at this time.

Mr. BICKWIT. What is your reaction to the Senate Agriculture reported provisions relating to cancellation and suspension, and judicial review of each? Do you support those?

Mr. DOMINICK. We do.

Mr. BICKWIT. Can you not see those provisions leading to numerous harassing lawsuits if legal action were initiated after your decision to suspend a pesticide summarily, followed by legal action after your decision to suspend it after a public hearing, followed by legal action after your action to cancel it, finally?

Mr. DOMINICK. Mr. Bickwit, I think that, in order for this committee to have a full record for it, it would be helpful in this regard for you to have the proposed rules of practice that we have published in EPA, and would intend to formalize in the near future.

We view the judicial review provisions as very workable, as reported by the Senate Agriculture Committee.

We feel that it is important that review of such concepts as riskbenefit, a substantial question of safety and other major areas of administrative law should take place in the circuit court of appeals.

We also agree that where there has been no full administrative recor developed through a hearing, review immediately in the district court is in order.

Therefore, we feel that the proper mechanism has been established in the bill as reported.

Mr. BICKWIT. But, as I read those provisions, it is your intention to suspend on an emergency basis, and follow that suspension with a cancellation order.

After your decision to suspend summarily, you would be subject to a suit for judicial review in the district court. Following your decision to conduct your suspension hearing, if you were to conclude that the suspension was justified, you would then be subject to judicial review in the circuit court, and then after you initiated cancellation proceedings, which would be incumbent upon you, while you were in the process of suspending, you would be subject, again, to judicial review in the circuit court.

The prospect of those three lawsuits, it would seem to me, could be one that might lead you to refrain from action that on the merits you might feel was justifiable. If you said it would not, we would accept that.

But, having outlined that prospect, let me ask you whether you think it might?

Mr. DOMINICK. Well. I think that as a matter of practice, once we had reached a decision that suspension of any given registered pesticide was warranted because there was an imminent hazard posed by the continued use of this pesticide, that such a decision would be sustainable against court challenge to the degree that the suspension could remain in effect until a full record was developed.

That is, in response to your question, I feel that action could be taken in those instances where suspension was needed in order to protect public health, and the environment, and that an orderly process of administrative and then, judicial review could take place.

Mr. BICKWIT. My only concern is that it will take place many times under those provisions.

Mr. DOMINICK. Well, I cannot state with assurance what is going to happen in the future. We feel this is one of the complex provisions of the law that we are going to have to gain experience with; so, I cannot give you a flat answer on that, Mr. Bickwit.

Mr. BICKWIT. How do you justify giving your support for those provisions, keeping parties other than the applicant out of the hearings on suspension?

Mr. DOMINICK. Because the hearing on suspension presumably would be based on a finding by the Administrator that an imminent hazard did exist. The reason for limitiing the parties, is to limit the time involved in such a hearing, to insure that any other information on the part of registrants was made available to the Administrator immediately, and final orders could thereby be issued.

Mr. BICKWIT. But if the Administrator has heard only the applicant, and not those who would oppose his position, is it not likely that the court, on review, would have a somewhat unbalanced record?

Mr. DOMINICK. We presume that in these cases, the agency would have taken a very firm advocacy position with respect to the suspension in the first place, or it would not have occurred. And in many cases, information has come to the attention of the agency by virtue of public interest groups, by virtue of petitions from third parties, and it is on the basis of that information that action has been taken.

So, we feel that a full record could be developed within the constraints of the time that we are trying to operate under.

Mr. BICKWIT. And you feel it could not be developed within those constraints if we allowed those other than the applicant into the hearing?

Mr. DOMINICK. We do not view that as a very significant point at the present time. As you know, we have taken many steps to insure that there is access to our entire decisionmaking process by all parties, and as you know, we are taking into account the viewpoints of all parties in reaching those final decisions.

So, I do not view this as something that is of great significance with respect to the total bill that we have before us.

Mr. BICKWIT. Can you conceive of a hearing examiner with a forceful hand keeping the time down if you did let in those other than the applicant?

Mr. DOMINICK. We could conceive of that situation. We could conceive of a situation where cross-examination and rebuttal would be very severely limited; yes.

Mr. BICKWIT. You mentioned a decision relating to the term "commonly recognized practice" and you gave us your reaction to that decision, and you said that you thought it was wrong.

Could you describe to us briefly, for the record, what was involved in that case, and why you think the decision is wrong, so that we can insure that the committee either agrees or disagrees, to adopt similar language?

Mr. DOMINICK. Well, I will have Mr. Charles Fabrikant speak to that point. I believe this is of significance by virtue of the fact that there have been conflicting decisions in the various circuit courts, and we have chosen to interpret the present authority under FIFRA, as carried forward under the new bill, as giving us authority to recognize the principle of commonly recognized practices.