Mr. FABRIKANT. The decision involved the Stearns Phosphorus Paste Co. v. Environmental Protection Agency.

That case was decided by the seventh circuit court of appeals, several weeks ago. What was involved in that case was an action taken by the EPA to cancel a product involving a highly toxic substance used around the home.

While no particular facts involving an individual product could be pointed to, general experience with products involving this chemical showed extensive household accidents, and a tendency to misuse the product in such a way that deaths were caused to children.

The agency took the position that under the present provisions of FIFRA. this constituted a commonly recognized practice, and that the product could not be used safely.

The court disagreed with the decision of. I believe it was Mr. Pearlman, in concluding that the agency had made out its case, and the extensive hazard involved in this use, constituted misbranding under the law.

The courts of appeal and the Agency explored, in great detail, the legislative history of the commonly recognized practice language in the present law. That provision was greatly debated before it was inserted into present law, and it is the Agency's view that the legislative history leading up to the inclusion of that language meant to give USDA, at the time, and subsequently the EPA, the authority to make sure that certain products could be regulated, when proved through experience that labels were inadequate to prevent hazards in terms of the likelihood of the directions being followed.

Mr. BICKWIT. So it is your analysis of that case, that the decision. involved did create a commonly recognized practice.

Mr. FABRIKANT. Yes.

Mr. BICKWIT. Speaking for the staff of the committee, I would not contradict that.

I have one final question, and that is: With regard to the HartNelson amendment which was discussed earlier by the industry witnesses, that relating to the use of an applicant's data for evaluation of those pieces of data submitted by other than the applicant, do you find that using the data of the first applicant in that hypothetical to evaluate the data of the second applicant, or for use of the second applicant, has led to an incentive to develop pesticides?

Mr. DOMINICK. I do not believe that we have any hard figures to which we could point concerning incentive in the research and development and bringing forward of new products in the pesticide industry.

We feel that this is a matter of general principle, and we feel that this is a matter of real concern to the administration and other portions of Government agency responsibility, and we feel that in this regard, the Administrator should have available to him all informationtion in reaching decisions on registration.

So, the short answer to your question is, I do not have any evidence before me that would indicate incentive or disincentive by virtue of this particular issue.

Mr. BICKWIT. Thank you very much.

Senator INOUYE. I would like to call a short recess at this time.
We are having a vote on the floor.

So, if you would remain, I have a few questions I would like to ask.

Mr. DOMINICK. Very well, Mr. Chairman.

Senator INOUYE. We will stand in recess for 10 minutes. (Recess.)

Senator INOUYE. The hearings will please come to order.

Mr. Dominick, I have a few questions I would like to ask before adjourning this hearing. I believe one can safely assume that H.R. 10729 in some form will be passed by this Congress this year. It has gone through the necessary stages, and one can make that assumption. Have you made that assumption?

Mr. DOMINICK. Yes, we have, Mr. Chairman, and I think it is critical to the proper administration of this area that we do get a bill this year.

Senator INOUYE. Now, if you have made that assumption, have you made plans to implement some of the new authorities which would rest in the Administrator's office?

Mr. DOMINICK. We have, Mr. Chairman. We have not submitted any requests for supplemental funds. We would do so, of course, under the guidance given us by the Office of Management and Budget, but we have laid the ground work in terms of planning for the implementation of this new bill.

Senator INOUYE. Among the new authorities, the Administrator will conduct research on pesticides alternatives and will monitor pesticide use and presence in the environment. What kind of money will you be asking for to implement these two new authorities?

Mr. DOMINICK. We don't view the conduct of research and the monitoring of pesticides in the environment as a new authority. That has been conducted by a number of Federal agencies in the past. Many of their functions were transferred to EPA when it was formed in December of 1970, and there is a good deal of research and monitoring going on at the present time.

We can describe to the committee in detail what is being done at our various laboratories, and would be happy to provide that for the record.

Senator INOUYE. I just quoted from your prepared statement, in which you said that authority is not under present law.

Mr. DOMINICK. I take it that goes to the question of pesticide use. I apologize for misinterpreting your question.

Senator INOUYE. What sort of money will you be asking for to implement these two authorities?

Mr. DOMINICK. We will refer to our previous submission to the Congress which outlined the new finances required to implement. S. 745, and provide that to the committee.

Senator INOUYE. In your statement, you refer to section 23(c), which authorizes the Administrator to permit a State to register pesticides formulated for distribution and use within the State to meet specific local needs. I presume that this amendment was initiated or supported by wide interest. Now, does the fact that a State is isolated from the rest of the continent make any difference?

Mr. DOMINICK. It should not make a difference, Mr. Chairman. We should be able to register and establish tolerances for pesticides no matter where they are being used.

I am aware of instances that have been recently called to my attention where tolerances have not been established for certain pesticides which are used uniquely in Hawaai.

We are taking steps to address that problem, and to, if possible, within the restraints of technical difficulties, make such pesticides available.

Senator INOUYE. It has been suggested by industry members in Hawaii that because of the insular nature of our State that insects can have a greater devastating effect than any other environment. Does that make any sense?

Mr. DOMINICK. I think it would. I think that there are unique crop situations, there are unique weather situations in Hawaii which we would not find anywhere else in the continental United States, sir. Senator INOUYE. Mr. Dominick, as you may be aware, at our first hearing several witnesses charged EPA with failing to disclose certain information to the Congress relating to the dangers to farmworkers posed by certain dangerous pesticides, and I am certain you are aware that this charge is now on the record, and I would like to give you an opportunity to provide this subcommittee with your responses if you so wish.

Mr. DOMINICK. I would be happy to, Mr. Chairman. We feel that charge is unwarranted for a number of reasons.

In the first place, the bill clearly does call for the protection of applicators and the protection of farmers, the protection of farmworkers.

I refer you to page 83 of the committee print which says that if the Administrator classifies a pesticide or one or more uses of such pesticide for restricted use because of a determination that acute dermal or inhalation toxicity of the pesticide presents a hazard to the applicator or other persons, the pesticide shall be applied for any use to which the restrictive classification applies only by or under the direct supervision of the certified applicator.

That indeed is one of the cornerstones of this bill, classifying pesticides in such a way that they will be applied only under strict regulation and supervision.

Additionally, I would point out that the data which the group testifying before this committee discussed has been the subject of numerous publications in the past, and indeed we have over 200 published documents reporting results of the so-called community studies, and we are publishing more all the time.

In order to accommodate all groups who are interested in this difficult area of pesticide control, and in keeping with our Agency's practice to make all information available to the public which is not covered by the trade secret provisions of federal law, and which would serve some public interest by its release, we have made available all of the draft studies to which Mr. Krebbs and others have referred. They can be obtained in our pesticides office from Dr. Upholt or his colleagues at 1750 K Street here in Washington.

I would also point out that a Dr. Milby who has been conducting a number of studies on farmworkers and on the public health problem related to pesticides is the chairman of the Subcommittee of the Federal Working Group on Pest Management, a working group involving all Federal agencies involved in this question.

And that subcommittee will be making a report to us on the question, on the issue of field reentry standards.

They are meeting in California this week. They will meet here in Washington later in July, and, of course, we will keep this committee and any other committee that is interested up to date on the progress of our efforts at the Federal level and at the State level, in this case the State of California, to establish adequate and protective field reentry standards.

Finally, Mr. Chairman, I would refer to some of the press accounts that resulted from the testimony before this committee, and say that with respect to the DDT decision, first of all, I am enjoined by the Justice Department to confine my remarks concerning that decision to the matters of record and to the matters which are contained in the Administrator's formal opinion by virtue of the fact that this has been appealed already by both parties, but within that constraint I can say that a careful reading of that opinion indicates that the Administrator and myself and others involved in that decision took into very careful account the whole question of toxicity of potential substitutes for DDT.

Indeed, a whole section of the opinion starting at page 36 deals with that question.

So that in summary, Mr. Chairman, is our response.

This is a matter of concern, a matter of serious attention on the part of the Environmental Protection Agency.

Senator INOUYE. I believe the charge was not made on the basis that the Agency refused to disclose information, but failed to volunteer such information when such information would have been relevant to the consideration of the committee.

I realize that if I wanted information, or the staff people wanted information, they may go to your office and pick it up, but I believe these witnesses felt that the information should have been disclosed voluntarily and the committee advised of the availability of such data. Mr. DOMINICK. Well, in that regard, Mr. Chairman, it has been a matter of public record, and a matter of continuing awareness on the part of the Congress that this Agency and our predecessor agencies have been carrying out community studies in some 15 States around the Nation for many, many years.

Additionally, it has been a matter of record by virtue of the publication of the results of those community studies that this is available to the scientific, professional community, as well as, of course, available to the Congress.

Now, with respect to the immediate results of recent studies, we feel that these should be available for review by any interested person, and we feel that in reviewing them they should be aware of the fact that these studies are not complete, that there may be additional information required before you can have a scientifically credible study suitable for publication.

But we are not in any way attempting to withhold any of this information from or mislead anyone who is interested in obtaining it.

If we had information present which would be of interest to the committee in response to any particular amendment, we are happy to discuss that with the committee.

Additionally, as I say, in reaching decisions, the most instant decision being the DDT decision, a decision of great public importance, the whole question of the toxic effect of substitute chemicals, and a very thorough review of the most recent information available, and present in the record, following 7 months of testimony, all of that went into the deliberations and consideration of the Administrator. I feel that that is a complete response to this matter.

Senator INOUYE. During our first day of hearings, it was revealed that certain studies in California had raised serious questions as to whether the currently registered labels for ethion and guthion adequately protect the farmworkers.

One of those studies indicated that, depending on when the measurements were taken, 13 to 21 of 23 workers suffered serious losses of an enzyme necessary to transmit nerve impulses, and that those pesticides were used in accordance with label instructions. Under EPA criteria, if substantial question as to the safety of a registered pesticide exists, a cancellation notice should ensue. Would you respond either now or for the record as to whether the requisite substantial question as to safety exists with respect to those two pesticides, Ethion and Guthion: Mr. DOMINICK. We would be very happy to respond. I think it would be more appropriate to do so for the record.1 These are extremely complex scientific questions, and I would not want to give you a top-ofthe-head answer to that.

Senator INOUYE. Thank you very much, Mr. Dominick.

As indicated earlier, we wish to submit questions which were referred to us by Senator Baker for your response.

I have been advised that Mr. Thomas Garrett, representing the Friends of the Earth and the Defenders of Wildlife, has submitted a prepared text, which text without objection will be made part of the record.

(The statement follows:)

STATEMENT OF THOMAS GARRETT, WILDLIFE CONSERVATION DIRECTOR, FRIENDS OF THE EARTH

Mr. Chairman, I am Tom Garrett. I appreciate this opportunty to appear. I am testifying on behalf of two conservation organizations, Friends of the Earth and Defenders of Wildlife.

FOE is a national organization with 27,000 members, dedicated to the preservation and rational use of the earth. We have active sister organizations in six European countries. Our Washington office is at 620 C Street SE.

Defenders of Wildlife is a national organization of 39,000 members, active in defending wildlife and wildlife habitat, with offices at 2000 N Street NW., Washington, D.C. Mary Harris is executive director and editor of Defenders of Wildlife News.

FOE and Defenders of Wildlife strongly endorse all of the Hart-Nelson amendments. We also endorse the Stevenson amendments designed to protect farm workers and farmers, as well as consumers, from acute and chronic poisoning. We wish to commend and thank the sponsors.

We consider it particularly important that 1003, which will permit the public and the scientific community to examine evidence, and influence registration decisions before they are made, be included in the eventual bill. This will ventilate the closed decision making process, and reduce the influence of the industry in the decision making process.

1 See p. 273.