[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5187 Introduced in House (IH)]







106th CONGRESS
  2d Session
                                H. R. 5187

  To amend the Federal Insecticide, Fungicide, and Rodenticide Act to 
 permit a State to register a Canadian pesticide for distribution and 
                         use within that State.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 14, 2000

 Mr. Pomeroy introduced the following bill; which was referred to the 
                        Committee on Agriculture

_______________________________________________________________________

                                 A BILL


 
  To amend the Federal Insecticide, Fungicide, and Rodenticide Act to 
 permit a State to register a Canadian pesticide for distribution and 
                         use within that State.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. REGISTRATION OF CANADIAN PESTICIDES BY STATES.

    (a) In General.--Section 24 of the Federal Insecticide, Fungicide, 
and Rodenticide Act (7 U.S.C. 136v) is amended by adding at the end the 
following:
    ``(d) Registration of Canadian Pesticides by States.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Canadian pesticide.--The term `Canadian 
                pesticide' means a pesticide that--
                            ``(i) is registered for use as a pesticide 
                        in Canada;
                            ``(ii) is identical or substantially 
                        similar in its composition to a comparable 
                        domestic pesticide registered under section 3 
                        of this Act; and
                            ``(iii) is registered in Canada by the 
                        registrant of the comparable domestic pesticide 
                        or an affiliated entity of the registrant.
                    ``(B) Comparable domestic pesticide.--The term 
                `comparable domestic pesticide' means a pesticide--
                            ``(i) that is registered under section 3 of 
                        this Act;
                            ``(ii) the registration of which is not 
                        under suspension;
                            ``(iii) that is not subject to a notice of 
                        intent to cancel or suspend, a notice for 
                        voluntary cancellation under section 6(f) of 
                        this Act, or an enforcement action under this 
                        Act;
                            ``(iv) that is used as the basis for 
                        comparison for the determinations required 
                        under section 24(d)(4) of this Act;
                            ``(v) that is registered for use on the 
                        site(s) of application for which registration 
                        is sought under this subsection;
                            ``(vi) for which no use is the subject of a 
                        pending interim administrative review under 
                        section 3(c)(8) of this Act;
                            ``(vii) that is not subject to sales 
                        limitations or production caps agreed upon 
                        between the Administrator and the registrant or 
                        imposed by the Administrator for risk 
                        mitigation purposes; and
                            ``(viii) that is not classified as a 
                        restricted use pesticide under section 3(d) of 
                        this Act.
            ``(2) Authority to register canadian pesticides.--
                    ``(A) In general.--A State may register a Canadian 
                pesticide for distribution and use only within the 
                State if the registration complies with this 
                subsection, is consistent with the purposes of this 
                Act, and has not previously been denied or disapproved 
                by the Administrator. A pesticide registered under this 
                subsection shall not be used to produce a pesticide to 
                be registered under section 3 or section 24(c) of this 
                Act.
                    ``(B) Effect of registration.--A registration of a 
                Canadian pesticide by a State under this subsection 
                shall be deemed a registration under section 3 for all 
                purposes of this Act, but shall authorize distribution 
                and use only within such State.
                    ``(C) Registrant.--Any person or State may seek 
                registration of a Canadian pesticide pursuant to this 
                subsection. Such person or State shall be deemed the 
                registrant of the Canadian pesticide under this Act.
            ``(3) Requirements for registration sought by person.--A 
        person seeking registration from a State of a Canadian 
pesticide under this subsection must--
                    ``(A) demonstrate to the State that the Canadian 
                pesticide is identical or substantially similar in its 
                composition to a comparable domestic pesticide; and
                    ``(B) submit to the State a copy of the label 
                approved by the Pest Management Regulatory Agency for 
                the Canadian pesticide and the label approved by the 
                Administrator for the comparable domestic pesticide.
            ``(4) State requirements for registration.--A State may 
        register a Canadian pesticide under this subsection only if 
        it--
                    ``(A) has obtained the confidential statement of 
                formula for the Canadian pesticide;
                    ``(B) determines that the Canadian pesticide is 
                identical or substantially similar in its composition 
                to a comparable domestic pesticide;
                    ``(C) for each food or feed use authorized by the 
                registration--
                            ``(i) determines that there exists an 
                        adequate tolerance or exemption under the 
                        Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
                        301 et seq.) that permits the residues of the 
                        pesticide on the food or feed; and
                            ``(ii) identifies the tolerances or 
                        exemptions in the submissions made under 
                        subparagraph (D);
                    ``(D) has obtained a label approved by the 
                Administrator, that--
                            ``(i) duplicates all statements, excluding 
                        the establishment number, from the approved 
                        labeling of the comparable domestic pesticide 
                        that are relevant to the uses registered by the 
                        State and deletes all labeling statements 
                        relating to uses not registered by the State;
                            ``(ii) identifies the state in which the 
                        product may be used;
                            ``(iii) prohibits sale and use outside the 
                        state identified in clause (ii);
                            ``(iv) includes a statement indicating that 
                        it is unlawful to use the Canadian pesticide in 
                        the State in a manner that is inconsistent with 
                        the labeling approved by the Administrator 
                        pursuant to this subsection; and
                            ``(v) identifies the establishment number 
                        of the establishment in which the labeling 
                        approved by the Administrator will be affixed 
                        to the containers of the Canadian pesticide; 
                        and
                    ``(E) notifies, within 10 working days after the 
                State's issuance of a registration under this 
                subsection, the Administrator in writing of the State's 
                action, which notification shall include a statement of 
                the determination made under this paragraph, the 
                effective date of the registration, a confidential 
                statement of formula, and a final printed copy of the 
                labeling approved by the Administrator.
            ``(5) Disapproval of registration by administrator.--A 
        registration issued by a State under this subsection shall not 
        be effective for more than 90 days if disapproved by the 
        Administrator within that period. The Administrator may 
        disapprove the registration of a Canadian pesticide by a State 
        pursuant to this subsection if the Administrator determines 
        that the registration of the Canadian pesticide by the State 
        does not comply with this subsection or the Federal Food, Drug, 
        and Cosmetic Act, or is inconsistent with the purposes of this 
        Act.
            ``(6) Labeling of canadian pesticides.--
                    ``(A) Containers.--Each container containing a 
                Canadian pesticide registered by a State shall at all 
                times bear the label that is approved by the 
                Administrator. The label must be securely attached to 
                the container and must be the only label visible on the 
                container. The original Canadian label on the container 
                must be preserved underneath the label approved by the 
                Administrator.
                    ``(B) Affixing labels.--After a Canadian pesticide 
                is registered under this subsection, the registrant 
                shall prepare labels approved by the Administrator for 
                such Canadian pesticide and shall conduct or supervise 
                all labeling of the Canadian pesticides with the 
                approved labeling. Labeling of the Canadian pesticides 
                pursuant to this subsection must be conducted at an 
                establishment registered by the registrant pursuant to 
                section 7 of this Act.
                    ``(C) Establishment reporting requirements.--
                Establishments registered for the sole purpose of 
                labeling required under section 24(d)(6) of this Act 
                are exempt from the reporting requirements provided in 
                section 7(c) of this Act.
            ``(7) Revocation.--At any time after the registration of a 
        Canadian pesticide, if the Administrator finds that the 
        Canadian pesticide is not identical or substantially similar in 
        composition to a comparable domestic pesticide, the 
        Administrator may issue an emergency order revoking the 
        registration of the Canadian pesticide. Such order shall be 
        immediately effective and may prohibit sale, distribution and 
        use of the Canadian pesticide. Such order may also prescribe 
        terms of a requirement for the registrant of any such Canadian 
        pesticide to purchase and dispose of any unopened product 
        subject to a revocation order. The registrant of a product 
        subject to a revocation order may request a hearing on such 
        order within 10 days of the issuance of such order. If no 
        hearing is requested within the prescribed period, the order 
        shall become final and shall not be subject to judicial review. 
        If a hearing is requested, judicial review may be sought only 
        at the conclusion of the hearing and following the issuance by 
        the Agency of a final revocation order. A final revocation 
        order issued following a hearing shall be reviewable in 
accordance with section 16 of this Act.
            ``(8) Suspension of state authority to register canadian 
        pesticides.--
                    ``(A) In general.--If the Administrator finds that 
                a State that has registered 1 or more Canadian 
                pesticides under this subsection is not capable of 
                exercising adequate controls to ensure that 
                registration under this subsection is consistent with 
                this subsection, other provisions of this Act, or the 
                Federal Food, Drug, and Cosmetic Act,, or has failed to 
                exercise adequate controls of one or more Canadian 
                pesticides registered under this subsection, the 
                Administrator may suspend the authority of the State to 
                register Canadian pesticides under this subsection 
                until such time as the Administrator determines that 
                the State can and will exercise adequate control of the 
                Canadian pesticides.
                    ``(B) Notice and opportunity to respond.--Before 
                suspending the authority of a State to register a 
                Canadian pesticide, the Administrator shall--
                            ``(i) advise the State that the 
                        Administrator proposes to suspend the authority 
                        and the reasons for the proposed suspension; 
                        and
                            ``(ii) before taking final action to 
                        suspend under this subsection, the 
                        Administrator shall provide the State an 
                        opportunity to respond to the proposal to 
                        suspend within 30 calendar days of the State's 
                        receipt of the Administrator's proposal to 
                        suspend.
            ``(9) Tort liability.--
                    ``(A) State as registering agency.--No action for 
                monetary damages may be maintained in any Federal court 
                against a State acting as a registering agency under 
                the authority of and consistent with this section for 
                injury or damage resulting from the use of a product 
                registered by the State pursuant to this subsection.
                    ``(B) Registrant.--Actions in tort may not be 
                maintained in any Federal court against a registrant 
                for damages resulting from adulteration or 
                compositional alterations of the registrants product 
                registered under this subsection if the registrant did 
                not and could not reasonably have knowledge of the 
                adulteration or compositional alterations.
            ``(10) Disclosure of information by administrator to the 
        state.--The Administrator may disclose to a State that is 
        seeking to register a Canadian pesticide in the State 
        information that is necessary for the State to make the 
        determinations required by paragraph (4) if the State certifies 
        to the Administrator that the State can and will maintain the 
        confidentiality of any trade secrets or commercial or financial 
        information provided by the Administrator to the State under 
        this subsection to the same extent as is required under section 
        10 of this Act.
            ``(11) Provision of information by registrants of 
        comparable domestic pesticides.--Upon request, the registrant 
        of a comparable domestic pesticide shall provide to a State 
        that is seeking to register a Canadian pesticide in the State 
        pursuant to this subsection information that is necessary for 
        the State to make the determinations required by section 
        24(d)(4) of this Act if the State certifies to the registrant 
        that the State can and will maintain the confidentiality of any 
        trade secrets or commercial or financial information provided 
        by the registrant to the State under this subsection to the 
        same extent as is required under section 10 of this Act. If the 
        registrant of a comparable domestic pesticide fails to provide 
        to the State, within 15 days of its receipt of a written 
        request by the State, information possessed by or reasonably 
        accessible to the registrant that is necessary to make the 
        determinations required by paragraph (4), the Administrator may 
        assess a penalty against the registrant of the comparable 
        pesticide based on the Administrator's estimate of the 
        difference between the per-acre cost of the application of the 
        comparable domestic pesticide and the application of the 
        Canadian pesticide multiplied by the acreage in the State of 
        the commodity for which the State registration is sought. No 
        penalty under this subsection shall be assessed unless the 
        registrant assessed shall have been given notice and 
        opportunity for a hearing as provided by section 14(a)(3) of 
        this Act. The only matters for resolution at that hearing will 
        be whether the registrant of the comparable domestic pesticide 
        failed to timely provide to the State the information possessed 
        by or reasonably accessible to the registrant that was 
        necessary to make the determinations required by paragraph (4) 
        and the amount of the penalty.
            ``(12) Penalty for disclosure by state employee.--The State 
        shall not make public information obtained under paragraphs 
        (10) and (11) of this subsection that is privileged and 
        confidential and contains or relates to trade secrets or 
        commercial or financial information. Any State employee who has 
        willfully disclosed information described in this paragraph 
        shall be subject to penalties prescribed in section 10(f) of 
        this Act.
            ``(13) Data compensation.--A State or person registering a 
        Canadian pesticide under this subsection shall not be liable 
        for compensation for data supporting such registration if the 
        registration of the Canadian pesticide in Canada and the 
        registration of the comparable domestic pesticide are held by 
        the same registrant or by affiliated entities.
            ``(14) Formulation change.--The registrant of a comparable 
        domestic pesticide must notify the Administrator of any change 
        in the formulation of a comparable domestic pesticide or a 
        Canadian pesticide registered by such registrant or its 
        affiliate at least 30 days prior to any sale or distribution of 
        the pesticide containing the new formulation. The registrant of 
        the comparable domestic pesticide must submit, with its notice 
        to the Administrator pursuant to this paragraph, the 
        confidential statement of formula for the new formulation if 
        the registrant has possession of or reasonable access to such 
        information. If the registrant fails to provide notice or 
        submit a confidential statement of formula as required by this 
        paragraph, the Administrator may issue a notice of intent to 
        suspend the registration of the comparable domestic pesticide 
        for a period of no less than one year. Suspension shall become 
        final within 30 days of the Administrator's issuance of the 
        notice of intent to suspend, unless during that time the 
        registrant requests a hearing. If a hearing is requested, a 
        hearing shall be conducted under section 6(d) of this Act. The 
        only matter for resolution at that hearing will be whether the 
        registrant has failed to provide notice or submit a 
        confidential statement of formula as required by this 
        paragraph.''.
    (b) Conforming Amendment.--Section 24(c)(4) is amended in the first 
sentence by striking ``If the Administrator'' and inserting the 
following: ``Except as otherwise provided in section 24(d)(8), if the 
Adminstrator''.
                                 <all>