[Congressional Record Volume 147, Number 34 (Wednesday, March 14, 2001)]
[Senate]
[Pages S2313-S2316]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DORGAN (for himself, Mr. Baucus, Mr. Burns, Mr. Daschle, 
        Mr. Johnson, and Mr. Conrad):
  S. 532. 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; to the Committee on 
Agriculture, Nutrition, and Forestry.
  Mr. DORGAN. Mr. President, today, along with Senators Baucus, Burns, 
Daschle, Johnson, and Conrad, I am introducing legislation that would 
provide equitable treatment for U.S. farmers in the pricing of 
agricultural pesticides. This legislation would allow a state, a 
person, or a farm organization or cooperative/farm supply company to 
serve as a registrant for a Canadian pesticide which is identical or 
substantially similar to a U.S. registered pesticide. This bill is 
identical to the legislation I introduced last September.
  The need for this legislation is as great as ever. We are about to 
start spring planting, and U.S. farmers are once again going to be 
required to pay more--in some cases almost twice as much--than their 
Canadian counterparts for crop protection products that are virtually 
identical in substance.
  I have pointed out in the past that when the U.S.-Canada Free Trade 
Agreement came into effect, part of the understanding on agriculture 
was that our two nations were going to move rapidly toward the 
harmonization of pesticide regulations. Howsever, we have entered a new 
decade, and century, no less, and relatively little progress in 
harmonization has been accomplished that is meaningful to family 
farmers.
  Since this trade agreement took effect, the pace of Canadian spring 
and durum wheat, and barley exports to the United States have grown 
from a barely noticeable trickle into annual floods of imported grain 
into our markets. Over the years, I have described many factors that 
have produced this unfair trade relationship and un-level playing field 
between farmers of our two nations. The failure to achieve 
harmonization in pesticides between the United States and Canada 
compounds this ongoing trade problem.
  Our farmers are concerned that agricultural pesticides that are not 
available in the United States are being utilized by farmers in Canada 
to produce wheat, barley, and other agricultural commodities that are 
subsequently imported and consumed in the United States. They 
rightfully believe that it is unfair to import commodities produced 
with agricultural pesticides that are not available to U.S. producers. 
However, it is not just a difference of availability of agricultural 
pesticides between our two countries, but also in the pricing of these 
chemicals.
  A year ago, our farmers were denied the right to bring a pesticide 
across the border that was cleared for use in our country, but was not 
available locally because the company who manufacturers this product 
chose not to sell it here. They were selling a more expensive version 
of the product here. The simple fact is, this company was using our 
environmental protection laws as a means to extract a higher price from 
our farmers. This simply is not right.
  I have pointed out, time and time again, the fact that there are 
significant differences in prices being paid for essentially the same 
pesticide by farmers in our two countries. In fact, in a recent survey, 
farmers in the United States were paying between 117 percent and 193 
percent higher prices than Canadian farmers for a number of pesticides. 
This was after adjusting for differences in currency exchange rates at 
that time.
  The farmers in my state are simply fed up with what is going on. They 
see grain flooding across the border, while they are unable to access 
the more inexpensive production inputs available in our ``free trade'' 
environment. And I might add, this grain coming into our country has 
been treated with these products which our farmers are denied access 
to. This simply must end.
  As I stated earlier, today, my colleagues and I are reintroducing 
legislation that would take an important step in providing equitable 
treatment for U.S. farmers in the pricing of agricultural pesticides. 
This bill would only deal with agricultural chemicals that are 
identical or substantially similar. It only deals with pesticides that 
have already undergone rigorous review processes and whose formulations 
have been registered and approved for use in both countries by the 
respective regulatory agencies.
  The bill would establish a procedure by which states may apply for 
and receive an Environmental Protection Agency label for agricultural 
chemicals sold in Canada that are identical or substantially similar to 
agricultural chemicals used in the United States. Thus, U.S. producers 
and suppliers could purchase such chemicals in Canada for use in the 
United States. The need for this bill is created by pesticide companies 
which use chemical labeling laws to protect their marketing and pricing 
structures, rather than the public interest. In their selective 
labeling of identical or substantially similar products across the 
border they are able to extract unjustified profits from farmers, and 
create un-level pricing fields between our two countries.
  This bill is one legislative step in the process of full 
harmonization of pesticides between our two nations. It is designed 
specifically to address the problem of pricing differentials on 
chemicals that are currently available in both countries. We need to 
take this step, so that we can begin the process of creating a level 
playing field between farmers of our two countries. This bill would 
make harmonization a reality for those pesticides in which their actual 
selling price is the only real difference.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 532

       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; and
       ``(iii) is registered in Canada by the registrant of the 
     comparable domestic pesticide or by 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;
       ``(ii) the registration of which is not under suspension;
       ``(iii) that is not subject to--

       ``(I) a notice of intent to cancel or suspend under any 
     provision of this Act;

[[Page S2314]]

       ``(II) a notice for voluntary cancellation under section 
     6(f); or
       ``(III) an enforcement action under any provision of this 
     Act;

       ``(iv) that is used as the basis for comparison for the 
     determinations required under paragraph (4);
       ``(v) that is registered for use on each site 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);
       ``(vii) that is not subject to any limitation on production 
     or sale agreed to by 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).
       ``(2) Authority to register canadian pesticides.--
       ``(A) In general.--A State may register a Canadian 
     pesticide for distribution and use in the State if the 
     registration--
       ``(i) complies with this subsection;
       ``(ii) is consistent with this Act; and
       ``(iii) has not previously been disapproved by the 
     Administrator.
       ``(B) Production of another pesticide.--A pesticide 
     registered under this subsection shall not be used to produce 
     a pesticide registered under section 3 or subsection (c).
       ``(C) Effect of registration.--A registration of a Canadian 
     pesticide by a State under this subsection--
       ``(i) shall be deemed to be a registration under section 3 
     for all purposes of this Act; and
       ``(ii) shall authorize distribution and use only within 
     that State.
       ``(D) Registrant.--
       ``(i) In general.--A State may register a Canadian 
     pesticide under this subsection on its own motion or on 
     application of any person.
       ``(ii) State or applicant as registrant.--

       ``(I) State.--If a State registers a Canadian pesticide 
     under this subsection on its own motion, the State shall be 
     considered to be the registrant of the Canadian pesticide for 
     all purposes of this Act.
       ``(II) Applicant.--If a State registers a Canadian 
     pesticide under this subsection on application of any person, 
     the person shall be considered to be the registrant of the 
     Canadian pesticide for all purposes of this Act.

       ``(3) Requirements for registration sought by person.--A 
     person seeking registration by a State of a Canadian 
     pesticide in a State under this subsection shall--
       ``(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--
       ``(i) the label approved by the Pesticide Management 
     Regulatory Agency for the Canadian pesticide; and
       ``(ii) 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 if the 
     State--
       ``(A) obtains the confidential statement of formula for the 
     Canadian pesticide;
       ``(B) determines that the Canadian pesticide is identical 
     or substantially similar in 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 
     notification submitted under subparagraph (E);
       ``(D) obtains a label approved by the Administrator that--
       ``(i)(I) includes all statements, other than the 
     establishment number, from the approved labeling of the 
     comparable domestic pesticide that are relevant to the uses 
     registered by the State; and
       ``(II) excludes all labeling statements relating to uses 
     that are 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 
     under 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 under this subsection; and
       ``(v) identifies the establishment number of the 
     establishment in which the labeling approved by the 
     Administrator will be affixed to each container of the 
     Canadian pesticide; and
       ``(E) not later than 10 business days after the issuance by 
     the State of the registration, submit to the Administrator a 
     written notification of the action of the State that 
     includes--
       ``(i) a description of the determination made under this 
     paragraph;
       ``(ii) a statement of the effective date of the 
     registration;
       ``(iii) a confidential statement of the formula of the 
     registered pesticide; and
       ``(iv) a final printed copy of the labeling approved by the 
     Administrator.
       ``(5) Disapproval of registration by administrator.--
       ``(A) In general.--The Administrator may disapprove the 
     registration of a Canadian pesticide by a State under this 
     subsection if the Administrator determines that the 
     registration of the Canadian pesticide by the State--
       ``(i) does not comply with this subsection or the Federal 
     Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.); or
       ``(ii) is inconsistent with this Act.
       ``(B) Effective period.--If the Administrator disapproves a 
     registration by a State under this subsection by the date 
     that is 90 days after the date on which the State issues the 
     registration, the registration shall be ineffective after the 
     90th day.
       ``(6) Labeling of canadian pesticides.--
       ``(A) In general.--Each container containing a Canadian 
     pesticide registered by a State shall bear the label that is 
     approved by the Administrator under this subsection.
       ``(B) Display of label.--The label shall be securely 
     attached to the container and shall be the only label visible 
     on the container.
       ``(C) Original canadian label.--The original Canadian label 
     on the container shall be preserved underneath the label 
     approved by the Administrator.
       ``(D) Preparation and use of labels.--After a Canadian 
     pesticide is registered under this subsection, the registrant 
     shall--
       ``(i) prepare labels approved by the Administrator for the 
     Canadian pesticide; and
       ``(ii) conduct or supervise all labeling of the Canadian 
     pesticide with the approved labeling.
       ``(E) Registered establishments.--Labeling of a Canadian 
     pesticide under this subsection shall be conducted at an 
     establishment registered by the registrant under section 7.
       ``(F) Establishment reporting requirements.--An 
     establishment registered for the sole purpose of labeling 
     under this paragraph shall be exempt from the reporting 
     requirements of section 7(c).
       ``(7) Revocation.--
       ``(A) In general.--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.
       ``(B) Terms of order.--The order--
       ``(i) shall be effective immediately;
       ``(ii) may prohibit the sale, distribution, and use of the 
     Canadian pesticide; and
       ``(iii) may require the registrant of the Canadian 
     pesticide to purchase and dispose of any unopened product 
     subject to the order.
       ``(C) Request for hearing.--Not later than 10 days after 
     issuance of the order, the registrant of the Canadian 
     pesticide subject to the order may request a hearing on the 
     order.
       ``(D) Final order.--If a hearing is not requested in 
     accordance with subparagraph (C), the order shall become 
     final and shall not be subject to judicial review.
       ``(E) Judicial review.--If a hearing is requested on the 
     order, judicial review may be sought only at the conclusion 
     of the hearing on the order and following the issuance by the 
     Administrator of a final revocation order.
       ``(F) Procedure.--A final revocation order issued following 
     a hearing shall be reviewable in accordance with section 16.
       ``(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 (21 U.S.C. 301 et seq.), 
     or has failed to exercise adequate controls of 1 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) notify 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 authority 
     under this subsection, provide the State an opportunity to 
     respond to the proposal to suspend within 30 calendar days 
     after the State receives notice under clause (i).
       ``(9) Limits on liability.--No action for monetary damages 
     may be heard in any Federal court against--
       ``(A) a State acting as a registering agency under the 
     authority of and consistent with this subsection for injury 
     or damage resulting from the use of a product registered by 
     the State under this subsection; or
       ``(B) a registrant for damages resulting from adulteration 
     or compositional alteration of a Canadian pesticide 
     registered under this subsection if the registrant did not 
     have and could not reasonably have obtained knowledge of the 
     adulteration or compositional alteration.
       ``(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

[[Page S2315]]

     Administrator that the State can and will maintain the 
     confidentiality of any trade secrets and commercial or 
     financial information provided by the Administrator to the 
     State under this subsection to the same extent as is required 
     under section 10.
       ``(11) Provision of information by registrants of 
     comparable domestic pesticides.--
       ``(A) In general.--On request by a State, the registrant of 
     a comparable domestic pesticide shall provide to the State 
     that is seeking to register a Canadian pesticide in the State 
     under this subsection information that is necessary for the 
     State to make the determinations required by paragraph (4) if 
     the State certifies to the registrant that the State can and 
     will maintain the confidentiality of any trade secrets and 
     commercial and financial information provided by the 
     registrant to the State under this subsection to the same 
     extent as is required under section 10.
       ``(B) Penalty for noncompliance.--
       ``(i) In general.--If the registrant of a comparable 
     domestic pesticide fails to provide to the State, not later 
     than 15 days after 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.
       ``(ii) Amount.--The amount of the penalty shall be equal to 
     the product obtained by multiplying--

       ``(I) the difference between the per-acre cost of the 
     application of the comparable domestic pesticide and the 
     application of the Canadian pesticide, as determined by the 
     Administrator; and
       ``(II) the number of acres in the State devoted to the 
     commodity for which the State registration is sought.

       ``(C) Notice and opportunity for hearing.--No penalty under 
     this paragraph shall be assessed unless the registrant is 
     given notice and opportunity for a hearing in accordance with 
     section 14(a)(3).
       ``(D) Issues at hearing.--The only issues for resolution at 
     the hearing shall be--
       ``(i) 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
       ``(ii) the amount of the penalty.
       ``(12) Penalty for disclosure by state.--
       ``(A) In general.--The State shall not make public 
     information obtained under paragraph (10) or (11) that is 
     privileged and confidential and contains or relates to trade 
     secrets or commercial or financial information.
       ``(B) Disclosure.--Any State employee who willfully 
     discloses information described in subparagraph (A) shall be 
     subject to penalties described in section 10(f).
       ``(13) Data compensation.--A State or person registering a 
     Canadian pesticide under this subsection shall not be liable 
     for compensation for data supporting the 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 changes.--
       ``(A) In general.--The registrant of a comparable domestic 
     pesticide shall notify the Administrator of any change in the 
     formulation of a comparable domestic pesticide or a Canadian 
     pesticide registered by the registrant or an affiliated 
     entity not later than 30 days before any sale or distribution 
     of the pesticide containing the new formulation.
       ``(B) Statement of formula.--The registrant of the 
     comparable domestic pesticide shall submit, with the notice 
     required under subparagraph (A), a confidential statement of 
     the formula for the new formulation if the registrant has 
     possession of or reasonable access to the information.
       ``(C) Suspension of registration for noncompliance.--
       ``(i) In general.--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 not less than 1 
     year.
       ``(ii) Effective date.--The suspension shall become final 
     not later than the end of the 30-day period beginning on the 
     date of the issuance by the Administrator of the notice of 
     intent to suspend the registration, unless during the period 
     the registrant requests a hearing.
       ``(iii) Hearing procedure.--If a hearing is requested, the 
     hearing shall be conducted in accordance with section 6(d).
       ``(iv) Issues.--The only issues for resolution at the 
     hearing shall be whether the registrant has failed to provide 
     notice or submit a confidential statement of formula as 
     required by this paragraph.''.
       (b) Conforming Amendments.--
       (1) Section 24(c) of the Federal Insecticide, Fungicide, 
     and Rodenticide Act (7 U.S.C. 136v(c)) is amended--
       (A) in paragraph (1), by inserting ``In general.--'' after 
     ``(1)``;
       (B) in paragraph (2), by inserting ``Disapproval.--'' after 
     ``(2)'';
       (C) in paragraph (3), by inserting ``Consistency with 
     federal food, drug, and cosmetic act.--'' after ``(3)''; and
       (D) by striking ``(4) If the Administrator'' and inserting 
     the following:
       ``(4) Suspension of authority to register pesticides.--
     Except as provided in subsection (d)(8), if the 
     Administrator''.
       (2) The table of contents in section 1(b) of the Federal 
     Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. prec. 
     121) is amended by striking the item relating to section 
     24(c) and inserting the following:
       ``(c) Additional uses.
       ``(1) In general.
       ``(2) Disapproval.
       ``(3) Consistency with Federal Food, Drug, and Cosmetic 
     Act.
       ``(4) Suspension of authority to register pesticides.
       ``(d) Registration of Canadian pesticides by States.
       ``(1) Definitions.
       ``(2) Authority to register Canadian pesticides.
       ``(3) Requirements for registration sought by person.
       ``(4) State requirements for registration.
       ``(5) Disapproval of registration by Administrator.
       ``(6) Labeling of Canadian pesticides.
       ``(7) Revocation.
       ``(8) Suspension of State authority to register Canadian 
     pesticides.
       ``(9) Limits on liability.
       ``(10) Disclosure of information by Administrator to the 
     State.
       ``(11) Provision of information by registrants of 
     comparable domestic pesticides.
       ``(12) Penalty for disclosure by State.
       ``(13) Data compensation.
       ``(14) Formulation changes.''.
     (c) Effective Date.--This section and the amendments made by 
     this section take effect 180 days after the date of enactment 
     of this Act.

  Mr. BURNS. Mr. President, I rise today to express my support of the 
Pesticide Harmonization Act. Last year, Senator Dorgan attempted to 
address this problem in the VA/HUD Appropriations Conference. I 
committed myself to work with him and move this legislation this year. 
I am a cosponsor of this bill because of this commitment and to even 
out a serious trade imbalance facing the agriculture industry in our 
country.
  In my home State of Montana and many other western and mid-western 
States, we have faced a number of trade disputes between Canada and the 
United States. One of the most glaring discrepancies deals with 
pesticides. Chemicals that are sold for one price just across the 
border in Canada are sold at a considerably higher cost to American 
producers. Why does this happen you may ask? The EPA places strong 
regulations on chemicals used in the United States and therefore, the 
chemical companies believe they should hike up the prices to pay for 
their trouble.
  The chemicals in Canada and the United States, in most cases, have 
the exact same chemical make-up. The same company manufactures them, 
but often gives them a different name and nearly always prices the 
American chemicals higher. The crops treated with chemicals our farmers 
are not allowed to use are easily imported into the United States. 
These crops were developed at a lower production cost and are now 
competing with American products. I am a strong believer in fair trade, 
but for free trade to actually occur, this problem must be addressed.
  Currently, American farmers are facing a serious economic recession. 
Prices are the lowest they have been in a number of years and there 
does not appear to be a light at the end of the tunnel. Additionally, 
the West is looking at yet another year of severe drought. Already, 
snow packs are considerably below normal. Also, fertilizer costs are 
sky-rocketing with the high cost of fuel and energy. Compounding their 
problem is being forced to pay twice as much for nearly the same 
chemicals as their foreign neighbors.
  If enacted, this bill would eliminate current obstacles and even the 
playing field for our farmers. It would allow States or individual 
producers to seek a registration for a Canadian pesticide. This could 
only be done if, upon request by the State, the pesticide is found to 
be identical or substantially similar to the U.S. pesticide. The EPA 
still has final authority to disapprove the registrations within 90 
days. Once the pesticide is found to be the same or similar and the EPA 
approves, the State or individual can travel to Canada and purchase the 
chemical.
  Our farmers and ranchers have been paying too much for their 
pesticides and chemicals for too long. From my years as a football 
referee, I learned everyone needs to follow the same rules to play the 
game. We need to make sure Canadian farmers and U.S. farmers are 
playing under the same rules. I

[[Page S2316]]

believe this bill makes that happen. I look forward to working with my 
colleagues on this crucial issue to America's farmers and ranchers.
                                 ______