[Congressional Record Volume 149, Number 104 (Tuesday, July 15, 2003)]
[Senate]
[Pages S9419-S9421]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DORGAN (for himself, Mr. Burns, Mr. Baucus, Mr. Johnson, 

        Mr. Crapo, Mr. Daschle, and Mr. Conrad):

  S. 1406. A bill to amend the Federal Insecticide, Fungicide, and 

Rodenticide Act to permit the Administrator of the Environmental 

Protection Agency to register a Canadian pesticide; to the Committee on 

Agriculture, Nutrition, and Forestry.

  Mr. DORGAN. Mr. President, today I am reintroducing a bipartisan bill 

to remedy a long-standing inequity in pesticide pricing between 

agricultural chemicals sold in Canada and similar use chemicals sold in 

the United States. This pesticide price disparity has caused an undue 

cost burden on our American farmers putting them at a distinct 

disadvantage when competing in the world grain market.

  Currently, American and Canadian farmers use the same chemicals on 

their fields; but they are marketed under different labels and sold at 

much lower cost north of the border. This bill simply eliminates that 

inequity by setting up a process that would allow American farmers to 

access these lower-priced--but substantively identical--pesticides.

  This legislation would direct the Environmental Protection Agency, 

EPA, upon the request of anyone who can comply with the pesticide 

registration requirements of the Federal Insecticide, Fungicide, and 

Rodenticide Act, FIFRA, to register a Canadian pesticide for use in the 

United States. This registration would take effect if, after analysis 

by the EPA, the pesticides are of similar use and composition in both 

countries. The bill also has provisions to allow EPA to delegate 

portions of the registration process to individual states with EPA 

having the final authority over the process. This is to conserve the 

resources of the EPA and at the same time utilize the expertise of 

State agriculture departments around the country.

  The new labels for the chemicals would still be under the strict 

scrutiny of the Environmental Protection Agency as would their use. 

This would continue to insure safety in the food supply. Food safety is 

a top priority for all of us. Chemical safety is a top priority for all 

of us. This bill keeps those priorities intact.

  I have come before the Senate time and again to talk about the hidden 

inequities of trade. Trade must be fair, and the pricing inequities of 

Canadian and United States similar use pesticides have been a glaring 

weakness of the free trade initiative. For far too long, American 

farmers have watched their neighbors to the north apply pesticides that 

are used in both countries, used on the same crops, and yet Canadian 

producers get a price cut.

  Our farmers are also concerned that similar use pesticides are being 

utilized by farmers in Canada to produce wheat, barley, and other 

agricultural commodities which are subsequently imported and consumed 

in the United States. They rightfully believe it to be unfair to import 

commodities produced with agricultural pesticides that are not 

available to U.S. producers. If commodities grown with the use of these 

Canadian pesticides are deemed safe enough for import and consumption 

in the United States, why would we make American producers pay 117 

percent to 193 percent more in chemical costs to produce the same 

crops? The current scenario doesn't make sense.

  This bill is not an ending, but a beginning. Hidden trade barriers 

and schemes riddle the fabric of our trade agreements. We cannot 

continue to accept trade practices that on the one hand hamstring 

Americans, and on the other hand, unduly promote our competitors. We 

cannot allow our competitors to sell us commodities treated with lower 

priced chemicals that are used both in Canada and the United States, 

tell our consumers that the chemicals used on those commodities are 

perfectly safe, and yet not give our producers access to those same 

chemicals at a lower price. This is a classic example of free trade 

gone bad.

  We ought not accept second best all of the time, and this bill is a 

step in bringing American producers back to a level playing field.

  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. 1406



       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.



       (a) In General.--Section 3 of the Federal Insecticide, 

     Fungicide, and Rodenticide Act (7 U.S.C. 136a) is amended by 

     adding at the end the following:

       ``(i) Registration of Canadian Pesticides.--

       ``(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 this section; 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 this section;

       ``(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;

       ``(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 subsection (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 subsection (d).

       ``(2) Authority to register canadian pesticides.--

       ``(A) In general.--The Administrator may register a 

     Canadian pesticide if the registration--

       ``(i) complies with this subsection;

       ``(ii) is consistent with this Act; and





[[Page S9420]]



       ``(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 this section or section 24(c).

       ``(C) Registrant.--

       ``(i) In general.--The Administrator may register a 

     Canadian pesticide under this subsection on the application 

     of any person.

       ``(ii) Application.--If the Administrator registers a 

     Canadian pesticide under this subsection on application of 

     any person, the applicant shall be considered to be the 

     registrant of the Canadian pesticide for all purposes of this 

     Act.

       ``(D) Administrator.--Not later than 60 days after a person 

     submits a complete application for the registration of a 

     Canadian pesticide under this subsection, the Administrator 

     shall--

       ``(i) approve the application; or

       ``(ii)(I) disapprove the application; and

       ``(II) provide the applicant with a statement of the 

     reasons for the disapproval.

       ``(E) Delegation.--

       ``(i) In general.--Subject to clause (ii), the 

     Administrator may delegate a function of the Administrator 

     under this subsection.

       ``(ii) Approval.--The Administrator shall approve or 

     disapprove any final action taken under this subsection as 

     the result of a function delegated to a State.

       ``(3) Applicant requirements.--A person seeking 

     registration of a Canadian pesticide under this subsection 

     shall--

       ``(A) demonstrate to the Administrator that the Canadian 

     pesticide is identical or substantially similar in its 

     composition to a comparable domestic pesticide; and

       ``(B) submit to the Administrator 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) Criteria for registration.--The Administrator may 

     register a Canadian pesticide under this subsection if the 

     Administrator--

       ``(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) 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 

     Administrator; and

       ``(ii) excludes all labeling statements relating to uses 

     that are not registered by the Administrator; and

       ``(E) not later than 10 business days after the issuance of 

     the registration, publish in the Federal Register a written 

     notification of the action of the Administrator that 

     includes--

       ``(i) a description of the determination made under this 

     paragraph; and

       ``(ii) a statement of the effective date of the 

     registration;

       ``(5) Labeling of canadian pesticides.--

       ``(A) In general.--Each container containing a Canadian 

     pesticide registered by the Administrator 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.

       ``(6) 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 in a State; 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.

       ``(7) Limits on liability.--No action for monetary damages 

     may be heard in any Federal or State court against--

       ``(A) the Administrator 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 Administrator 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.

       ``(8) Provision of information by registrants of comparable 

     domestic pesticides.--

       ``(A) In general.--On request by the Administrator the 

     registrant of a comparable domestic pesticide shall provide 

     to the Administrator that is seeking to register a Canadian 

     pesticide under this subsection information that is necessary 

     for the Administrator to make the determinations required by 

     paragraph (4).

       ``(B) Penalty for noncompliance.--

       ``(i) In general.--If the registrant of a comparable 

     domestic pesticide fails to provide to the Administrator, not 

     later than 15 days after receipt of a written request by the 

     Administrator, 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 United States devoted to 

     the commodity for which the 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 Administrator 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.

       ``(9) Penalty for disclosure.--

       ``(A) In general.--The Administrator shall not make public 

     information obtained under paragraph (8) that is privileged 

     and confidential and contains or relates to trade secrets or 

     commercial or financial information.

       ``(B) Disclosure.--Any employee of the Environmental 

     Protection Agency who willfully discloses information 

     described in subparagraph (A) shall be subject to penalties 

     described in section 10(f).

       ``(10) Data compensation.--The Administrator and a 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.

       ``(11) 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.





[[Page S9421]]



       ``(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) Technical and Conforming Amendment.--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 adding at the end of the items relating to section 

     3 the following:



    ``(4) Mixtures of nitrogen stabilizers and fertilizer products.

  ``(g) Registration review.

  ``(h) Registration requirements for antimicrobial pesticides.

    ``(1) Evaluation of process.

    ``(2) Review time period reduction goal.

    ``(3) Implementation.

    ``(4) Annual report.

  ``(i) Registration of Canadian pesticides.

    ``(1) Definitions.

    ``(2) Authority to register Canadian pesticides.

    ``(3) Applicant requirements.

    ``(4) Criteria for registration.

    ``(5) Labeling of Canadian pesticides.

    ``(6) Revocation.

    ``(7) Limits on liability.

    ``(8) Provision of information by registrants of comparable 

      domestic pesticides.

    ``(9) Penalty for disclosure.

    ``(10) Data compensation.

    ``(11) 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.

                                 ______