[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.
______