B-200588 L/M, MAR 26, 1981

B-200588 L/M, MAR 26, 1981

QUESTIONS CONCERNING THE FEDERAL PESTICIDE ACT OF 1978 (FILE B-200588; CODE 089142)

PROJECT MANAGER, CHICAGO RO - JOHN ROSE:

WE RESPOND TO YOUR QUESTIONS CONCERNING THE FEDERAL PESTICIDE ACT OF 1978 AS FOLLOWS:

QUESTION 1: DOES EPA HAVE AUTHORITY TO ASSIGN BROAD PESTICIDE ENFORCEMENT ACTIVITIES TO THE STATES IN VIEW OF THE LANGUAGE OF SEC. 26 OF THE FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT (FIFRA), 7 U.S.C. SEC. 136W-1, WHICH ASSIGNS TO STATES ENFORCEMENT RESPONSIBILITY FOR "PESTICIDE USE VIOLATIONS?"

ANSWER: EPA DOES HAVE AUTHORITY TO ASSIGN BROAD PESTICIDE ENFORCEMENT ACTIVITIES TO THE STATES.

QUESTION 2: DID THE FEDERAL PESTICIDE ACT OF 1978 "WEAKEN" FEDERAL REGULATORY CONTROLS OVER PESTICIDE USE?

ANSWER: CERTAIN PORTIONS OF THE 1978 ACT APPEAR TO HAVE STRENGTHENED THE PESTICIDE LEGISLATION, WHILE OTHER SECTIONS SEEM TO HAVE WEAKENED IT.

QUESTION 3: DID CONGRESS INTEND THAT STATE DEPARTMENTS OF AGRICULTURE WOULD ADMINISTER AND ENFORCE FEDERAL PESTICIDE LEGISLATION?

ANSWER: THE ACT ITSELF (FIFRA) AND THE LEGISLATIVE HISTORY DO NOT INDICATE WHICH STATE AGENCIES CONGRESS INTENDED WOULD ENFORCE FEDERAL PESTICIDE LAW. SINCE CONGRESS WAS AWARE THAT MOST STATE PESTICIDE REGULATION WAS EXERCISED BY STATE DEPARTMENTS OF AGRICULTURE, CONGRESSIONAL SILENCE ON THE ISSUE SUGGESTS THAT CONGRESS DID NOT OBJECT TO ENFORCEMENT BY STATE AGRICULTURAL AGENCIES.

QUESTION 4: IS THERE ANY INDICATION IN THE LEGISLATIVE HISTORY, OR ELSEWHERE, OF THE MEANING OF THE TERMS "EXPERIMENTAL USE PERMIT," "EMERGENCY EXEMPTION," AND "SPECIAL LOCAL NEED," AS USED IN FIFRA?

ANSWER: SECTION 5 OF THE ACT EXPLAINS THAT AN EXPERIMENTAL USE PERMIT IS TO BE ISSUED IN ORDER TO PERMIT THE APPLICANT TO ACCUMULATE THE INFORMATION NEEDED FOR REGISTRATION. THE LEGISLATIVE HISTORY PROVIDES LITTLE INSIGHT AS TO CONGRESSIONAL UNDERSTANDING OF THE TERM "EMERGENCY EXEMPTION." THE LEGISLATIVE HISTORY DOES INDICATE, HOWEVER, THAT A "SPECIAL LOCAL NEED" IS "A PROBLEM IN A STATE WHICH IS NOT SUFFICIENTLY WIDESPREAD TO WARRANT THE EXPENSE AND DIFFICULTIES OF FEDERAL REGISTRATION."

QUESTION 5: ARE STRUCTURAL CONTROL OPERATORS COVERED BY THE FEDERAL PESTICIDE ACT OF 1978?

ANSWER: STRUCTURAL CONTROL OPERATORS ARE COVERED BY THE 1978 ACT.

QUESTION 6(A): SINCE STATES HAVE PRIMARY ENFORCEMENT RESPONSIBILITY FOR PESTICIDE USE, WHAT LEGAL AUTHORITY DO STATES HAVE OVER PESTICIDES USED ON FEDERAL OR INDIAN LANDS?

ANSWER: EACH STATE DOES NOT NECESSARILY HAVE PRIMARY ENFORCEMENT RESPONSIBILITY FOR PESTICIDE USE VIOLATIONS. THE EXTENT OF THE LEGAL AUTHORITY OF A STATE WHICH DOES HAVE SUCH AUTHORITY OVER PESTICIDES USED ON FEDERAL OR INDIAN LANDS DEPENDS UPON (1) WHETHER OR NOT THE STATE HAS ENTERED INTO A COOPERATIVE AGREEMENT WITH THE ADMINISTRATOR, AND (2) WHETHER OR NOT A STATE HAS ADOPTED ITS OWN PESTICIDE USE LAWS AND ENFORCEMENT PROCEDURES.

QUESTION 6(B): IF PRIMARY RESPONSIBILITY HAS BEEN DELEGATED TO A STATE, ARE FEDERAL AND INDIAN LANDS WITHIN THE STATE EXEMPT FROM THE REGISTRATION PROVISIONS OF THE 1978 ACT?

ANSWER: FEDERAL AND INDIAN LANDS ARE NOT EXEMPT FROM THE REGISTRATION PROVISIONS OF THE 1978 ACT.

A MORE DETAILED ANALYSIS IS ATTACHED.

ATTACHMENT

QUESTIONS COVERING THE FEDERAL PESTICIDE ACT OF 1978

DIGEST:

THIS MEMORANDUM DISCUSSES VARIOUS QUESTIONS CONCERNING THE FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT AND FEDERAL AND STATE AUTHORITY UNDER IT.

QUESTION 1: DOES EPA HAVE AUTHORITY TO ASSIGN BROAD PESTICIDE ENFORCEMENT ACTIVITIES TO THE STATE IN VIEW OF THE LANGUAGE OF SEC. 26 OF THE FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT (FIFRA), 7 U.S.C. SEC. 136W-1, WHICH ASSIGNS TO STATES ENFORCEMENT RESPONSIBILITY FOR "PESTICIDE USE VIOLATIONS"?

ANSWER: EPA DOES HAVE AUTHORITY TO ASSIGN BROAD PESTICIDE ENFORCEMENT ACTIVITIES TO THE STATES. AS THE EPA RESPONSE TO YOUR QUESTIONS NOTES, STATE ENFORCEMENT HAD ALREADY ASSUMED A LARGE ROLE IN THE FIFRA SCHEME BEFORE CONGRESS ENACTED SECTION 26 IN 1978 (PUB. L. NO. 95-396). EPA'S AUTHORITY TO ASSIGN BROAD PESTICIDE ENFORCEMENT ACTIVITIES TO THE STATES STEMS NOT FROM SECTION 26 OF FIFRA, BUT FROM SECTION 23(A) OF FIFRA (WHICH FIRST APPEARED AS SECTION 23(A) OF THE FEDERAL ENVIRONMENTAL PESTICIDE CONTROL ACT OF 1972, PUB. L. NO. 92 516), 7 U.S.C. SEC. 136UA), WHICH PROVIDES:

"COOPERATIVE AGREEMENTS - THE ADMINISTRATOR MAY ENTER INTO COOPERATIVE AGREEMENTS WITH STATES AND INDIAN TRIBES-"

"(1) TO DELEGATE TO ANY STATE OR INDIAN TRIBE THE AUTHORITY TO COOPERATE IN THE ENFORCEMENT OF THIS ACT THROUGH THE USE OF ITS PERSONNEL OR FACILITIES TO TRAIN PERSONNEL OF THE STATE OR INDIAN TRIBE TO COOPERATE IN THE ENFORCEMENT OF THIS ACT, AND TO ASSIST STATES AND INDIAN TRIBES IN IMPLEMENTING COOPERATIVE ENFORCEMENT PROGRAMS THROUGH GRANTS-IN-AID; AND

"(2) TO ASSIST STATES IN DEVELOPING AND ADMINISTERING STATE PROGRAMS, AND INDIAN TRIBES THAT ENTER INTO COOPERATIVE AGREEMENTS, TO TRAIN AND CERTIFY APPLICATORS CONSISTENT WITH THE STANDARDS THE ADMINISTRATOR PRESCRIBES."

IN OTHER WORDS, THERE ALREADY EXISTED LEGAL BASIS FOR STATE INVOLVEMENT IN PESTICIDE ENFORCEMENT ACTIVITIES BEFORE THE ENACTMENT OF SEC. 26. THE LANGUAGE OF SECTION 26 DOES NOT, NOR WAS IT INTENDED TO, LIMIT STATE ENFORCEMENT AUTHORITY IN THE MANNER YOU SUGGEST.

ACCORDING TO SENATOR LEAHY, A MEMBER OF THE SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY, THE DELEGATION TO THE STATE OF PRIMARY ENFORCEMENT RESPONSIBILITY FOR PESTICIDE USE VIOLATIONS "REDUCES DUPLICATION OF EFFORT AND PERMITS EPA TO CONCENTRATE ITS RESOURCES ON HIGHER PRIORITY MATTERS."

"HOWEVER, WE HAVE NOT TAKEN AWAY EPA'S FINAL JURISDICTION FOR ENFORCEMENT OF FIFRA. THE BILL PROVIDES FOR EPA OVERRIDE OF STATE JURISDICTION IN EMERGENCY CIRCUMSTANCES WHEN THE STATE IS UNWILLING OR UNABLE TO ACT TO MEET THE EMERGENCY, AND FOR RESCISSION OF THE STATE'S PESTICIDE USE ENFORCEMENT RESPONSIBILITY IF THE STATE PROGRAM IS INADEQUATE."

SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY, REPORT ON THE FEDERAL PESTICIDE ACT OF 1978, P. 1. (COMM. PRINT 1979).

OSTENSIBLY, THEN, CONGRESS INTENDED TO RELIEVE EPA OF THE BURDEN OF ROUTINE ENFORCEMENT SO THAT THE AGENCY COULD CONCENTRATE ITS MANPOWER AND MONETARY RESOURCES ON OTHER, MORE IMPORTANT, MATTERS.

QUESTION 2: DID THE FEDERAL PESTICIDE ACT OF 1978 "WEAKEN" FEDERAL REGULATORY CONTROLS OVER PESTICIDE USE?

ANSWER: IT IS DIFFICULT TO MAKE ANY DEFINITIVE CONCLUSIONS AS TO THE RELATIVE STRENGTH OF FIFRA BEFORE AND AFTER ITS AMENDMENT IN 1978 (BY THE FEDERAL PESTICIDE ACT OF 1978) DUE TO THE FACT THAT WE ARE CALLED UPON TO DEFINE OUR OWN PARAMETERS, WITH WHICH OTHERS MAY NOT AGREE, IN ASSESSING THE IMPACT OF THE STATUTORY REVISIONS. CERTAIN CHANGES SEEM TO HAVE STRENGTHENED THE LEGISLATION, WHILE OTHERS APPEAR TO HAVE WEAKENED IT.OBVIOUSLY, THE DELEGATION TO THE STATES OF PRIMARY ENFORCEMENT RESPONSIBILITY FOR PESTICIDE USE VIOLATIONS (FIFRA SEC. 26, 7 U.S.C. SEC. 136W-1) DECREASES FEDERAL ENFORCEMENT RESPONSIBILITY. THOUGH WE ARE NOT PREPARED TO CONCLUDE THAT, ON ITS FACE, SUCH A DELEGATION WEAKENS THE STATUTE, AN EMPIRICAL STUDY SUCH AS YOURS MIGHT ESTABLISH THAT STATE PESTICIDE LAW ENFORCEMENT IS NOT AS VIGOROUS AS FEDERAL ENFORCEMENT, AND THUS THAT SUCH A DELEGATION DOES AS A PRACTICAL MATTER WEAKEN CONTROL OVER PESTICIDE USE.

YOU SUGGEST THAT A "WEAKER" STATUTE MAY IMPLY LOWER PENALTIES FOR PESTICIDE USE VIOLATIONS OR BROADER USE EXEMPTIONS. THE FEDERAL PESTICIDE ACT OF 1978 ADDS A NEW CATEGORY OF PENALTIES TO THE ACT. AN AMENDMENT TO SEC. 14(A)(2) OF FIFRA, 7 U.S.C. SEC. 1361(A)(2), PROVIDES THAT APPLICATORS FOR HIRE (WHO ARE NOT COMMERCIAL APPLICATORS) MAY BE ASSESSED CIVIL PENALTIES OF UP TO $500 FOR A FIRST OFFENSE, AND OF UP TO $1,000 FOR EACH SUBSEQUENT VIOLATION. THE ADDITION OF THIS LANGUAGE WAS NECESSARY IN 1978 SINCE ANOTHER OF THE 1978 AMENDMENTS HAD MODIFIED THE DEFINITION OF "CERTIFIED APPLICATOR" (FIFRA SEC. 2(E)(1), 7 U.S.C. SEC. 136(E)(1)) SO AS TO EXCLUDE APPLICATORS FOR HIRE FROM THE SCOPE OF SEC. 14(A)(1) AND (B)(1). THUS WE CANNOT VIEW THE ADDITION OF THIS PENALTY PROVISION AS HAVING STRENGTHENED THE LEGISLATION.

THE 1978 ACT ALSO ADDED SEC. 14(A)(4), 7 U.S.C. SEC. 1361(A)(4), WHICH PROVIDED:

"WHENEVER THE ADMINISTRATOR FINDS THAT THE VIOLATION OCCURRED DESPITE THE EXERCISE OF DUE CARE OR DID NOT CAUSE SIGNIFICANT HARM TO HEALTH OR THE ENVIRONMENT, THE ADMINISTRATOR MAY ISSUE A WARNING IN LIEU OF ASSESSING A PENALTY."

THOUGH THIS SUBSECTION APPEARS AT FIRST GLANCE TO WEAKEN THE PESTICIDE LEGISLATION SINCE IT ALLOWS THE ADMINISTRATOR TO REPRIMAND IN SITUATIONS IN WHICH HE MIGHT PREVIOUSLY HAVE PUNISHED, IT PROBABLY SERVES TO STRENGTHEN THE LAW IN THE LONG RUN SINCE THE ADMINISTRATOR WILL HAVE A LESS DRASTIC REMEDY AVAILABLE TO HIM FOR USE IN SITUATIONS IN WHICH HE DOES NOT VIEW AN INFRACTION AS SUFFICIENTLY SERIOUS TO MERIT IMPOSITION OF A PENALTY. IN OTHER WORDS, THIS LESS SEVERE ACTION MAY BE TAKEN WHERE PREVIOUSLY NO ACTION AT ALL WOULD HAVE BEEN TAKEN.

THE 1978 AMENDMENTS REDEFINED SEVERAL OF THE TERMS USED IN THE ACT. ONE CHANGE INVOLVED THE EXPANSION OF THE DEFINITION OF "COMMERCIAL APPLICATOR" TO INCLUDE NONCERTIFIED AS WELL AS CERTITIFIED APPLICATORS. (FIFRA, SEC. 2(E)(3), 7 U.S.C. SEC. 136(E)(3)). ACCORDING TO THE CONFERENCE REPORT, H. R. REP. NO. 95-560,44 (1978), THIS MODIFICATION HAD THE EFFECT OF "EXPANDING THE COVERAGE OF THE PENALTY PROVISIONS OF FIFRA TO ALL PERSONS WHO APPLY RESTRICTED USE PESTICIDES COMMERCIALLY, NOT JUST APPLICATORS CERTIFIED UNDER FIFRA." ANOTHER CHANGE INVOLVED THE ADDITION OF THE FOLLOWING SENTENCE TO THE DEFINITION OF "CERTIFIED APPLICATOR" IN SEC. 2(E)(1):

"ANY APPLICATOR WHO HOLDS OR APPLIES REGISTERED PESTICIDES, OR USE DILUTIONS OF REGISTERED PESTICIDES CONSISTENT WITH SECTION 2(EE) OF THIS ACT, ONLY TO PROVIDE A SERVICE OF CONTROLLING PESTS WITHOUT DELIVERING ANY UNAPPLIED PESTICIDE TO ANY PERSON SO SERVED IS NOT DEEMED TO BE A SELLER OR DISTRIBUTOR OF PESTICIDES UNDER THIS ACT."

THESE TWO CHANGES CUT IN OPPOSITE DIRECTIONS INSOFAR AS THE BREADTH OF THE CLASSES WHICH THEY DEFINE ARE CONCERNED. THE FORMER MODIFICATION BROADENS THE COVERAGE OF SEC. 14(A)(1) AND (B)(1), WHEREAS THE LATTER EXEMPTS A PREVIOUSLY INCLUDED GROUP FROM THE COVERAGE OF THE TWO PROVISIONS, AND SETS FORTH A LESS SEVERE PENALTY TO WHICH THEY ARE SUBJECT.

ANOTHER OF THE 1978 AMENDMENTS EXPANDS THE SCOPE OF SEC. 7, 7 U.S.C. SEC. 136E, WHICH REQUIRES THE REGISTRATION OF ALL ESTABLISHMENTS IN WHICH PESTICIDES SUBJECT TO THE ACT ARE PRODUCED, TO REQUIRE IN ADDITION THE REGISTRATION OF ALL ESTABLISHMENTS IN WHICH ACTIVE INGREDIENTS USED IN PRODUCING PESTICIDES ARE FORMULATED. THIS CHANGE BROADENS THE ACT'S COVERAGE.

OTHER AMENDMENTS (1) AUTHORIZE THE ADMINISTRATOR TO INITIATE PUBLIC INTERIM ADMINISTRATIVE REVIEWS OF PESTICIDES PRIOR TO TAKING FORMAL ACTION TO CANCEL, SUSPEND, OR DENY REGISTRATION ONLY IF "SUCH INTERIM ADMINISTRATIVE PROCESS IS BASED ON A VALIDATED TEST OR OTHER SIGNIFICANT EVIDENCE RAISING PRUDENT CONCERNS OF UNREASONABLE ADVERSE RISK TO MAN OR TO THE ENVIRONMENT," (FIFRA, SEC. 3(C)(8), 7 U.S.C. SEC. 136AC)(8)), AND (2) REQUIRE (A) THAT BEFORE AN EPA OR STATE INSPECTOR MAY UNDERTAKE AN INSPECTION OF A PESTICIDE PRODUCER, DISTRIBUTOR, CARRIER, OR SELLER'S RECORDS, HE MUST PRESENT APPROPRIATE CREDENTIALS AND A WRITTEN STATEMENT AS TO THE REASON FOR THE INSPECTION, INCLUDING A STATEMENT AS TO WHETHER A VIOLATION OF THE LAW IS SUSPECTED, AND (B) THAT ANY SUCH INSPECTION MUST BE COMMENCED AND COMPLETED PROMPTLY. (FIFRA, SEC. 8(B), 7 U.S.C. SEC. 136FB)). THESE CHANGES LIMIT THE POTENTIAL FOR AN ABUSE OF DISCRETION BY THE ADMINISTRATOR AND HIS INSPECTORS, BUT DO NOT NECESSARILY WEAKEN THE ACT.

A PARTICULARLY SIGNIFICANT AMENDMENT TO FIFRA INVOLVES SEC. 10 (7 U.S.C. SEC. 136H), WHICH DEALS WITH THE PROTECTION OF TRADE SECRETS. THE FEDERAL PESTICIDE ACT OF 1978 PROVIDES FOR PUBLIC ACCESS TO:

"ALL INFORMATION CONCERNING THE OBJECTIVES, METHODOLOGY, RESULTS, OR SIGNIFICANCE OF ANY TEST OR EXPERIMENT PERFORMED ON OR WITH A REGISTERED OR PREVIOUSLY REGISTERED PESTICIDE OR ITS SEPARATE INGREDIENTS, IMPURITIES, OR DEGRADATION PRODUCTS, AND ANY INFORMATION CONCERNING THE EFFECTS OF SUCH PESTICIDE ON ANY ORGANISM OR THE BEHAVIOR OF SUCH PESTICIDE IN THE ENVIRONMENT, INCLUDING, BUT NOT LIMITED TO, DATA ON SAFETY TO FISH AND WILDLIFE, HUMANS AND OTHER MAMMALS, PLANTS, ANIMALS, AND SOIL AND STUDIES ON PERSISTENCE, TRANSLOCATION AND FATE IN THE ENVIRONMENT, AND METABOLISM."

THE SECTION GOES ON TO NOTE, HOWEVER, THAT THIS PARAGRAPH "DOES NOT AUTHORIZE THE DISCLOSURE OF ANY INFORMATION THAT -

"(A) DISCLOSES MANUFACTURING OR QUALITY CONTROL PROCESSES,

"(B) DISCLOSES THE DETAILS OF ANY METHODS FOR TESTING, DETECTING, OR MEASURING THE QUANTITY OF ANY DELIBERATELY ADDED INERT INGREDIENT OF A PESTICIDE, OR

"(C) DISCLOSES THE IDENTITY OR PERCENTAGE QUANTITY OF ANY DELIBERATELY ADDED INERT INGREDIENT OF A PESTICIDE, UNLESS THE ADMINISTRATOR HAS FIRST DETERMINED THAT DISCLOSURE IS NECESSARY TO PROTECT AGAINST AN UNREASONABLE RISK OF INJURY TO HEALTH OR THE ENVIRONMENT."

WE REGARD THE ADDITION OF THIS SECTION AS STRENGTHENING THE PESTICIDE LEGISLATION BY INCREASING EXPOSURE OF INDUSTRY TO PUBLIC SCRUTINY.

ANOTHER IMPORTANT AMENDMENT TO FIFRA IN 1978 CONCERNS THE AUTHORITY OF THE STATES AS SET FORTH IN SEC. 24, 7 U.S.C. SEC. 136V. THE FEDERAL ENVIRONMENTAL PESTICIDE CONTROL ACT OF 1972 PERMITTED A STATE TO REGISTER PESTICIDES FOR DISTRIBUTION AND USE WITHIN ITS BORDERS TO MEET SPECIAL LOCAL NEEDS IF THE ADMINISTRATOR HAD CERTIFIED THAT IT WAS CAPABLE OF EXERCISING ADEQUATE CONTROLS OVER SUCH REGISTRATION AND IF REGISTRATION FOR SUCH USE HAD NOT PREVIOUSLY BEEN DENIED, DISAPPROVED, OR CANCELED BY THE ADMINISTRATOR. THE 1978 ACT AMENDS THIS SECTION TO ALLOW A STATE TO

"PROVIDE REGISTRATION FOR ADDITIONAL USES OF FEDERALLY REGISTERED PESTICIDES FORMULATED FOR DISTRIBUTION AND USE WITHIN THAT STATE TO MEET SPECIAL LOCAL NEEDS IN ACCORD WITH THE PURPOSES OF THIS ACT AND IF REGISTRATION FOR SUCH USE HAS NOT PREVIOUSLY BEEN DENIED, DISAPPROVED, OR CANCELED BY THE ADMINISTRATOR."

WE VIEW THIS REVISION AS STRENGTHENING FEDERAL CONTROL OVER PESTICIDE USE BECAUSE A STATE MAY NOW REGISTER ONLY THOSE PESTICIDES THAT ARE FEDERALLY REGISTERED.

THE 1978 ACT ALSO DELETES THE LANGUAGE REQUIRING A STATE TO OBTAIN PRIOR CERTIFICATION OF ITS REGISTRATION PROGRAM, AND SUBSTITUTES FOR IT A PROVISION GRANTING THE ADMINISTRATOR THE DISCRETION TO SUSPEND THE AUTHORITY OF THE STATES TO REGISTER IF HE FINDS THAT A STATE IS NOT CAPABLE OF EXERCISING ADEQUATE CONTROLS OVER ITS REGISTRATION PROGRAM. THIS CHANGE INCREASES STATE AUTHORITY TO A MINOR DEGREE.

FINALLY, THE 1978 ACT LIMITS THE ADMINISTRATOR'S AUTHORITY TO DISAPPROVE A REGISTRATION. THE 1978 AMENDMENT FORBIDS THE ADMINISTRATOR FROM PROHIBITING OR DISAPPROVING A REGISTRATION ISSUED BY A STATE (A) ON THE BASIS OF LACK OF ESSENTIALTY OF A PESTICIDE, OR (B) IF ITS COMPOSITION AND USE PATTERNS ARE SIMILAR TO THOSE OF A FEDERALLY REGISTERED PESTICIDE, EXCEPT AS PROVIDED IN PARAGRAPH 3 OF THE SUBSECTION. (PARAGRAPH 3 PROVIDES THAT:

"IN NO INSTANCE MAY A STATE ISSUE A REGISTRATION FOR A FOOD OR FEED USE UNLESS THERE EXISTS A TOLERANCE OR EXEMPTION UNDER THE FEDERAL FOOD, DRUG, AND COSMETIC ACT THAT PERMITS THE RESIDUES OF THE PESTICIDE ON THE FOOD OR FEED. IF THE ADMINISTRATOR DETERMINES THAT A REGISTRATION ISSUED BY A STATE IS INCONSISTENT WITH THE FEDERAL FOOD, DRUG AND COSMETIC ACT, OR THE USE OF A PESTICIDE UNDER A REGISTRATION ISSUED BY A STATE CONSTITUTES AN IMMINENT HAZARD, THE ADMINISTRATOR MAY IMMEDIATELY DISAPPROVE THE REGISTRATION.")

THIS AMENDMENT WEAKENS THE AUTHORITY OF THE ADMINISTRATOR.

QUESTION 3: DID CONGRESS INTEND THAT STATE DEPARTMENTS OF AGRICULTURE WOULD ADMINISTER AND ENFORCE FEDERAL PESTICIDE LEGISLATION?

ANSWER: THE ACT (FIFRA) ITSELF AND THE LEGISLATIVE HISTORY DO NOT INDICATE WHICH STATE AGENCIES CONGRESS INTENDED WOULD ENFORCE FEDERAL PESTICIDE LAW. WE AGREE WITH THE EPA'S OBSERVATION THAT THE COMMITTEES ON AGRICULTURE OF THE HOUSE AND SENATE MUST HAVE BEEN AWARE BY 1977 THAT MOST STATE PESTICIDE REGULATION WAS EXERCISED BY STATE DEPARTMENTS OF AGRICULTURE, AND WE WOULD THUS INTERPRET CONGRESSIONAL SILENCE ON THE ISSUE AS INDICATING THAT CONGRESS DID NOT OBJECT TO ENFORCEMENT BY STATE AGRICULTURE AGENCIES.

QUESTION 4: IS THERE ANY INDICATION IN THE LEGISLATIVE HISTORY, OR ELSEWHERE, OF THE MEANING OF THE TERMS "EXPERIMENTAL USE PERMIT" (SEC. 5), "EMERGENCY EXEMPTION" (SEC. 18), AND "SPECIAL LOCAL NEED" (SEC. 24(C)), AS USED IN FIFRA?

ANSWER: FIFRA, THROUGH A REGISTRATION SCHEME, PROVIDES FOR CONTROLS ON THE USE AND DISTRIBUTION, SALE, OR OTHER TRANSFER OF PESTICIDES. THERE ARE, HOWEVER, SOME EXCEPTIONS AND EXEMPTIONS. SECTION 5 OF FIFRA, 7 U.S.C. SEC. 136C, PERMITS THE ISSUANCE OF EXPERIMENTAL USE PERMITS BY THE ADMINISTRATOR AND, UNDER SUCH CONDITIONS AS HE MAY PRESCRIBE, THE STATES. THE SECTION ITSELF EXPLAINS THAT THE PURPOSE OF AN EXPERIMENTAL USE PERMIT IS TO ALLOW THE APPLICANT "TO ACCUMULATE INFORMATION NECESSARY TO REGISTER A PESTICIDE UNDER SECTION 3 OF THIS ACT." SECTION 5 FURTHER PROVIDES THAT:

- IF THE ADMINISTRATOR REASONABLY ANTICIPATES THAT USE OF A PESTICIDE MAY RESULT IN RESIDUE ON OR IN FOOD OR FEED, HE MAY SET A TEMPORARY TOLERANCE LEVEL FOR THE RESIDUE BEFORE ISSUING THE EXPERIMENTAL USE PERMIT. (SUBSEC. B)

- THE ADMINISTRATOR SHALL SUPERVISE THE USE OF A PESTICIDE UNDER AN EXPERIMENTAL USE PERMIT. (SUBSEC. C)

- THE ADMINISTRATOR MAY REQUIRE THAT CERTAIN STUDIES BE PERFORMED TO DETERMINE THE IMPACT OF THE PESTICIDE ON THE ENVIRONMENT. (SUBSEC. D)

- THE ADMINISTRATOR MAY REVOKE AN EXPERIMENTAL USE PERMIT IF ITS TERMS ARE VIOLATED OR THE USE CAUSES UNREASONABLE ADVERSE EFFECTS ON THE ENVIRONMENT.

(SUBSEC. E)

A FINAL SUBSECTION, (G), EXEMPTS FROM THE FOREGOING PROVISIONS THE ISSUANCE OF EXPERIMENTAL USE PERMITS TO AGRICULTURAL RESEARCH AGENCIES AND EDUCATIONAL INSTITUTIONS, BUT REQUIRES THAT SUCH PESTICIDE BE USED ONLY FOR PURPOSES OF EXPERIMENTATION. THE LEGISLATIVE HISTORY REVEALS NOTHING FURTHER AS TO CONGRESSIONAL UNDERSTANDING OF THE TERM "EXPERIMENTAL USE PERMIT."

SECTION 18, 7 U.S.C. SEC. 136P, PROVIDES THAT:

"THE ADMINISTRATOR MAY, AT HIS DISCRETION, EXEMPT ANY FEDERAL OR STATE AGENCY FROM ANY PROVISION OF THIS ACT IF HE DETERMINES THAT EMERGENCY CONDITIONS EXIST WHICH REQUIRE SUCH EXEMPTION."

THE PERTINENT SENATE REPORT, S. REP. NO. 92-970, OFFERS THE FOLLOWING EXPLANATION OF THE SECTION:

"THIS SECTION AUTHORIZES THE ADMINISTRATOR TO EXEMPT A FEDERAL OR STATE AGENCY FROM ANY PROVISION OF THE ACT IF HE DETERMINES THAT EXEMPTION IS CONSISTENT WITH THE PURPOSE OF THE ACT AND THE PUBLIC INTEREST. THE COMMITTEE INTENDS THAT EXEMPTIONS WOULD BE GRANTED ONLY IF UNREASONABLE ADVERSE EFFECTS ON THE ENVIRONMENT WOULD NOT RESULT."

1972 U.S.C. CONG. & AD. NEWS 4126.

SECTION 24(C), 7 U.S.C. SEC. 136VC), DELEGATES TO THE STATES THE AUTHORITY TO PROVIDE REGISTRATION:

"FOR ADDITIONAL USES OF FEDERALLY REGISTERED PESTICIDES FORMULATED FOR DISTRIBUTION AND USE WITHIN THAT STATE TO MEET SPECIAL LOCAL NEEDS IN ACCORD WITH THE PURPOSES OF THIS ACT AND IF REGISTRATION FOR SUCH USE HAS NOT PREVIOUSLY BEEN DENIED, DISAPPROVED, OR CANCELLED BY THE ADMINISTRATOR."

THE SECTION GOES ON TO STATE THAT "SUCH REGISTRATION SHALL BE DEEMED REGISTRATION UNDER SECTION 3 FOR ALL PURPOSES OF THIS ACT, BUT SHALL AUTHORIZE DISTRIBUTION AND USE ONLY WITHIN SUCH STATE." THE SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY NOTED THAT THE PURPOSE OF SECTION 24(C) WAS:

"TO GIVE A STATE THE OPPORTUNITY TO MEET EXPEDITIOUSLY AND LESS COST AND ADMINISTRATIVE BURDEN ON THE REGISTRANT THE PROBLEM OF REGISTERING FOR LOCAL USE A PESTICIDE NEEDED TO TREAT A PEST INFESTATION THAT IS A PROBLEM IN THE STATE BUT IS NOT SUFFICIENTLY WIDESPREAD TO WARRANT THE EXPENSE AND DIFFICULTIES OF FEDERAL REGISTRATION." SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY, REPORT ON THE FEDERAL PESTICIDE ACT OF 1978, P. 81

(COMM. PRINT 1979).

QUESTION 5: ARE STRUCTURAL CONTROL OPERATORS COVERED BY THE FEDERAL PESTICIDE ACT OF 1978?

ANSWER: THE TERM "STRUCTURAL CONTROL OPERATOR," WHICH IS NOT DEFINED IN THE LEGISLATION ITSELF, REFERS TO A CERTIFIED APPLICATOR WHO APPLIES PESTICIDES IN BUILDINGS, AS OPPOSED TO ON AGRICULTURAL LANDS. STRUCTURAL CONTROL OPERATORS ARE TREATED MORE LENIENTLY BY FIFRA THAN ARE OTHER COMMERCIAL APPLICATORS. SECTION 2(E)(1), 7 U.S.C. SEC. 136(E)(1), PROVIDES THAT:

"ANY APPLICATOR WHO HOLDS OR APPLIES REGISTERED PESTICIDES, OR USE DILUTIONS OF REGISTERED PESTICIDES CONISTENT WITH SECTION 2(EE) OF THIS ACT, ONLY TO PROVIDE A SERVICE OF CONTROLLING PESTS WITHOUT DELIVERING ANY UNAPPLIED PESTICIDE TO ANY PERSON SO SERVED IS NOT DEEMED TO BE A SELLER OR DISTRIBUTOR OF PESTICIDES UNDER THIS ACT."

THIS PROVISION HAS THE EFFECT OF EXEMPTING STRUCTURAL CONTROL OPERATORS (WHO DO NOT DELIVER UNAPPLIED PESTICIDES) FROM THE SCOPE OF SEC. 8(B) (INSPECTION OF RECORDS) AND SEC. 9(A) (INSPECTION OF ESTABLISHMENTS). SECTION 26(C), 7 U.S.C. SEC. 136W-1, DOES, HOWEVER, RESTORE AUTHORITY TO INSPECT DURING PERIODS IN WHICH THE ADMINISTRATOR HAS PRIMARY ENFORCEMENT RESPONSIBILITY:

"NOTWITHSTANDING THE PROVISIONS OF SECTION 2(E)(1) OF THIS ACT, DURING ANY PERIOD WHEN THE ADMINISTRATOR HAS PRIMARY ENFORCEMENT RESPONSIBILITY, SECTION 8(B) OF THIS ACT SHALL APPLY TO THE BOOKS AND RECORDS OF COMMERCIAL APPLICATORS AND TO ANY APPLICATOR WHO HOLDS OR APPLIES PESTICIDES, OR USE DILUTIONS OF PESTICIDES, ONLY TO PROVIDE A SERVICE OF CONTROLLING PESTS WITHOUT DELIVERING ANY UNAPPLIED PESTICIDE TO ANY PERSON SO SERVED, AND SECTION 9(A) OF THIS ACT SHALL APPLY TO THE ESTABLISHMENT OR OTHER PLACE WHERE PESTICIDES OR DEVICES ARE HELD FOR APPLICATION BY SUCH PERSONS WITH RESPECT TO PESTICIDES OR DEVICES HELD FOR SUCH APPLICATION."

SECTION 2(E)(1) ALSO HAS THE EFFECT OF EXEMPTING THE DEFINED CLASS OF STRUCTURAL CONTROL OPERATORS FROM THE SCOPE OF SEC. 14(A)(1) (CIVIL PENALTIES IN GENERAL). THE CLASS IS NOT TOTALLY EXEMPT FROM CIVIL PUNISHMENT, HOWEVER, SINCE A LESS SEVERE PENALTY SCHEME IS SET FORTH IN SEC. 14(A)(2) AS FOLLOWS:

"*** ANY APPLICATOR NOT INCLUDED UNDER PARAGRAPH (1) OF THIS SUBSECTION WHO HOLDS OR APPLIES REGISTERED PESTICIDES, OR USE DILUTIONS OF REGISTERED PESTICIDES, ONLY TO PROVIDE W A SERVICE OF CONTROLLING PESTS WITHOUT DELIVERING ANY UNAPPLIED PESTICIDE TO ANY PERSON SO SERVED, AND WHO VIOLATES ANY PROVISION OF THIS ACT MAY BE ASSESSED A CIVIL PENALTY BY THE ADMINISTRATOR OF NOT MORE THAN $500 FOR THE FIRST OFFENSE NOR MORE THAN $1,000 FOR EACH SUBSEQUENT OFFENSE."

QUESTION 6(A): SINCE STATES HAVE PRIMARY ENFORCEMENT RESPONSIBILITY FOR PESTICIDE USE, WHAT LEGAL AUTHORITY DO STATES HAVE OVER PESTICIDES USED ON FEDERAL OR INDIAN LANDS?

ANSWER: EACH STATE DOES NOT NECESSARILY HAVE PRIMARY ENFORCEMENT RESPONSIBILITY FOR PESTICIDE USE VIOLATIONS. THE EXTENT OF THE LEGAL AUTHORITY OF A STATE WHICH DOES HAVE SUCH RESPONSIBILITY OVER PESTICIDES ON FEDERAL OR INDIAN LANDS DEPENDS UPON:

(1) WHETHER THE STATE HAS ENTERED INTO A COOPERATIVE AGREEMENT WITH THE ADMINISTRATOR, AS PROVIDED FOR IN SEC. 23 OF FIFRA, 7 U.S.C. SEC. 136U, AND

(2) WHETHER A STATE HAS ADOPTED ITS OWN PESTICIDE USE LAWS AND ENFORCEMENT PROCEDURES, AS PROVIDED FOR IN SEC. 26 OF FIFRA, 7 U.S.C. SEC. 136W-1. IF A STATE HAS NOT ENTERED INTO A COOPERATIVE AGREEMENT WITH THE ADMINISTRATOR OR ADOPTED ITS OWN PESTICIDE USE LAWS AND ENFORCEMENT PROCEDURES, THE FEDERAL GOVERNMENT RETAINS JURISDICTION OVER ALL PESTICIDE USE VIOLATIONS WITHIN ITS BORDERS. IN OTHER WORDS, NOT ONLY DOES THE STATE HAVE NO AUTHORITY OVER PESTICIDES USED ON FEDERAL OR INDIAN LANDS, BUT FURTHERMORE, IT HAS NO ENFORCEMENT RESPONSIBILITY OVER PRIVATE OR STATE LANDS. IF A STATE HAS ENTERED INTO A COOPERATIVE AGREEMENT WITH THE ADMINISTRATOR TO ASSIST IN THE ENFORCEMENT OF THE FEDERAL ACT, BUT HAS NOT ADOPTED ITS OWN LAWS AND ENFORCEMENT PROCEDURES, A PESTICIDE USE VIOLATION WOULD BE A FEDERAL, AS OPPOSED TO STATE, OFFENSE. HOWEVER, STATE ENFORCEMENT PERSONNEL COULD ENTER FEDERAL AND INDIAN LANDS TO CONDUCT INSPECTIONS FOR VIOLATIONS. IF A STATE HAS ADOPTED ITS OWN REGULATORY AND ENFORCEMENT SCHEMES, AND ITS RESTRICTIONS ON PESTICIDE USE MIRROR THOSE IN THE FEDERAL STATUTE, THE FEDERAL LAW WOULD NONETHELESS CONTINUE TO APPLY TO VIOLATIONS WHICH OCCUR ON FEDERAL OR INDIAN LANDS. BUT, AS WITH THE PREVIOUS CASE, STATE PERSONNEL COULD HAVE THE AUTHORITY TO CONDUCT INSPECTIONS DELEGATED TO THEM BY THE ADMINISTRATOR. FINALLY, IF A STATE WERE TO IMPOSE STRICTER REGULATION ON PESTICIDE USE THAN THAT REQUIRED UNDER THE FEDERAL LAW, A VIOLATION OF THE STATE LAW WHICH OCCURS ON FEDERAL OR INDIAN LANDS WOULD CONSTITUTE A FEDERAL OFFENSE THROUGH APPLICATION OF THE ASSIMILATIVE CRIMES ACT. HOWEVER, IT IS NOT CLEAR WHETHER STATE ENFORCEMENT PERSONNEL WOULD HAVE THE AUTHORITY TO GO ONTO FEDERAL OR INDIAN LANDS TO INSPECT FOR SUCH VIOLATIONS, SINCE UNDER SUCH CIRCUMSTANCES STATE INSPECTORS WOULD NO LONGER BE ASSISTING IN THE ENFORCEMENT OF THE FEDERAL ACT. THESE RESPONSES ARE MORE FULLY DEVELOPED BELOW. I. STATE WITHOUT LAWS AND ENFORCEMENT SCHEME, WHICH HAS NOT ENTERED INTO COOPERATIVE AGREEMENT WITH THE ADMINISTRATOR

IT MUST BE EMPHASIZED THAT ALL STATES DO NOT NECESSARILY HAVE PRIMARY ENFORCEMENT RESPONSIBILITY FOR PESTICIDE USE VIOLATIONS. A STATE HAS SUCH RESPONSIBILITY ONLY (1) DURING PERIODS FOR WHICH THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY DETERMINES THAT SUCH STATE HAS ADOPTED ADEQUATE PESTICIDE USE LAWS AND REGULATIONS, HAS ADOPTED AND IS IMPLEMENTING ADEQUATE PROCEDURES FOR THE ENFORCEMENT OF SUCH STATE LAWS AND REGULATIONS, AND WILL KEEP NECESSARY RECORDS (SEC. 26(A)); AND (2) WHERE A STATE HAS ENTERED INTO A COOPERATIVE AGREEMENT WITH THE ADMINISTRATOR UNDER SEC. 23 FOR THE ENFORCEMENT OF PESTICIDE USE RESTRICTIONS. (SEC. 26(B)). THE ADMINISTRATOR RETAINS PRIMARY ENFORCEMENT RESPONSIBILITY IF NEITHER OF THESE CONDITIONS IS MET. HE ALSO HAS THE AUTHORITY TO RESCIND A STATE'S PRIMARY ENFORCEMENT RESPONSIBILITY FOR PESTICIDE USE VIOLATIONS WHERE HE ADJUDGES A STATE PROGRAM DEFICIENT. SECTION 27(B), 7 U.S.C. SEC. 136W-2(B), PROVIDES THAT:

"WHENEVER THE ADMINISTRATOR DETERMINES THAT A STATE HAVING PRIMARY ENFORCEMENT RESPONSIBILITY FOR PESTICIDE USE VIOLATIONS IS NOT CARRYING OUT (OR CANNOT CARRY OUT DUE TO THE LACK OF ADEQUATE LEGAL AUTHORITY) SUCH RESPONSIBILITY, THE ADMINISTRATOR SHALL NOTIFY THE STATE. SUCH NOTICE SHALL SPECIFY THOSE ASPECTS OF THE ADMINISTRATION OF THE STATE PROGRAM THAT ARE DETERMINED TO BE INADEQUATE. THE STATE SHALL HAVE NINETY DAYS AFTER RECEIPT OF THE NOTICE TO CORRECT ANY DEFICIENCIES. IF AFTER THAT TIME THE ADMINISTRATOR DETERMINES THAT THE STATE PROGRAM REMAINS INADEQUATE, THE ADMINISTRATOR MAY RESCIND, IN WHOLE OR IN PART, THE STATE'S PRIMARY ENFORCEMENT RESPONSIBILITY FOR PESTICIDE USE VIOLATIONS."

IN ADDITION, THE ADMINISTRATOR MAY ENFORCE THE ACT HIMSELF IF HE DETERMINES "THAT EMERGENCY CONDITIONS EXIST THAT REQUIRE IMMEDIATE ACTION ON THE PART OF THE ADMINISTRATOR, AND THE STATE AUTHORITY IS UNWILLING OR UNABLE ADEQUATELY TO RESPOND TO THE EMERGENCY." (SEC. 27(C), 7 U.S.C. SEC. 136W-2(C)).

II. STATE WHICH HAS ENTERED INTO A COOPERATIVE AGREEMENT WITH THE ADMINISTRATOR, BUT WHICH HAS NO REGULATIONS AND ENFORCEMENT SCHEME OF ITS OWN

SECTION 23 OF FIFRA PERMITS THE ADMINISTRATOR TO ENTER INTO COOPERATIVE AGREEMENTS WITH STATES AND INDIAN TRIBES "TO DELEGATE TO ANY STATE OR INDIAN TRIBE THE AUTHORITY TO COOPERATE IN THE ENFORCEMENT OF THE ACT ***." SECTION 9(A) PROVIDES THAT:

"FOR PURPOSES OF ENFORCING THE PROVISIONS OF THIS ACT, OFFICERS OR EMPLOYEES DULY DESIGNATED BY THE ADMINISTRATOR ARE AUTHORIZED TO ENTER AT REASONABLE TIMES, ANY ESTABLISHMENT OR OTHER PLACE WHERE PESTICIDES OR DEVICES ARE HELD FOR DISTRIBUTION OR SALE FOR THE PURPOSE OF INSPECTING AND OBTAINING SAMPLES OF ANY PESTICIDES OR DEVICES, PACKAGED, LABELED, AND RELEASED FOR SHIPMENT, AND SAMPLES OF ANY CONTAINERS OR LABELING FOR SUCH PESTICIDES OR DEVICES."

(THE AUTHORITY IS RESTRICTED IN VARIOUS WAYS FURTHER ON IN THE SECTION.) SECTION 9(B) FURTHER PROVIDES THAT:

"FOR PURPOSES OF ENFORCING THE PROVISIONS OF THIS ACT AND UPON A SHOWING TO AN OFFICER OR COURT OF COMPETENT JURISDICTION THAT THERE IS REASON TO BELIEVE THAT THE PROVISIONS OF THIS ACT HAVE BEEN VIOLATED, OFFICERS OR EMPLOYEES DULY DESIGNATED BY THE ADMINISTRATOR ARE EMPOWERED TO OBTAIN AND TO EXECUTE WARRANTS AUTHORIZING -

(1) ENTRY FOR THE PURPOSE OF THIS SECTION;

(2) INSPECTION AND REPRODUCTION OF ALL RECORDS SHOWING THE QUANTITY, DATE OF SHIPMENT, AND THE NAME OF CONSIGNOR AND CONSIGNEE OF ANY PESTICIDE OR DEVICE FOUND IN THE ESTABLISHMENT WHICH IS ADULTERATED, MISBRANDED, NOT REGISTERED (IN THE CASE OF A PESTICIDE) OR OTHERWISE IN VIOLATION OF THIS ACT AND IN THE EVENT OF THE INABILITY OF ANY PERSON TO PRODUCE RECORDS CONTAINING SUCH INFORMATION, ALL OTHER RECORDS AND INFORMATION RELATING TO SUCH DELIVERY, MOVEMENT, OR HOLDING OF THE PESTICIDE OR DEVICE; AND

(3) THE SIZURE OF ANY PESTICIDE OR DEVICE WHICH IS IN VIOLATION OF THIS ACT."

THERE IS NOTHING TO INDICATE THAT THE ADMINISTRATOR COULD NOT DESIGNATE A STATE OFFICER TO ACT AS HIS AGENT IN THE ENFORCEMENT OF THE ACT UNDER SEC. 9, AND SUCH AN ARRANGEMENT WOULD INDEED APPEAR TO BE CONTEMPLATED BY SEC. 23. THUS, STATE OFFICERS WOULD HAVE THE AUTHORITY TO ENTER FEDERAL AND INDIAN LANDS FOR PURPOSES OF CONDUCTING INSPECTIONS. ANY INFORMATION GATHERED BY STATE INSPECTORS WOULD BE TURNED OVER TO THE ADMINISTRATOR, WHO WOULD, IF HE BELIEVED THAT A VIOLATION OF THE ACT HAD OCCURRED, CERTIFY THE FACTS TO THE U. S. ATTORNEY GENERAL. IN OTHER WORDS, A VIOLATION WOULD CONSTITUTE A FEDERAL OFFENSE, ALTHOUGH STATE AUTHORITIES HAD CONDUCTED THE INSPECTION.

III. STATE WHICH HAS ADOPTED PESTICIDE USE RESTRICTIONS IDENTICAL TO THOSE OF THE FEDERAL GOVERNMENT

EVEN IF A STATE HAS ITS OWN PESTICIDE USE REGULATIONS, THE FEDERAL ACT WOULD CONTINUE TO APPLY TO VIOLATIONS OCCURRING ON FEDERAL LANDS. THE ANALYSIS SET FORTH IN THE PREVIOUS SECTION WOULD APPLY UNDER SUCH CIRCUMSTANCES. TO REITERATE, THE ADMINISTRATOR COULD DELEGATE THE POWER TO INSPECT TO STATE PERSONNEL. HOWEVER, CIVIL OR CRIMINAL PROCEEDINGS WOULD BE INSTITUTED IN FEDERAL COURT.

THE ISSUE IS LESS CLEAR WHERE INDIAN RESERVATIONS ARE CONCERNED. WITH REGARD TO THE LAWS GOVERNING INDIAN LANDS, 18 U.S.C. SEC. 1152 PROVIDES:

"EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY LAW, THE GENERAL LAWS OF THE UNITED STATES AS TO THE PUNISHMENT OF OFFENSES COMMITTED IN ANY PLACE WITHIN THE SOLE AND EXCLUSIVE JURISDICTION OF THE UNITED STATES, EXCEPT THE DISTRICT OF COLUMBIA, SHALL EXTEND TO THE INDIAN COUNTRY.

"THIS SECTION SHALL NOT EXTEND TO OFFENSES COMMITTED BY ONE INDIAN AGAINST THE PERSON OR PROPERTY OF ANOTHER INDIAN NOR TO ANY INDIAN COMMITTING ANY OFFENSE IN THE INDIAN COUNTRY WHO HAS BEEN PUNISHED BY THE LOCAL LAW OF THE TRIBE, OR TO ANY CASE WHERE, BY TREATY STIPULATIONS, THE EXCLUSIVE JURISDICTION OVER SUCH OFFENSES IS OR MAY BE SECURED TO THE INDIAN TRIBES RESPECTIVELY."

DESPITE THE BROAD LANGUAGE OF SEC. 1152, THE SUPREME COURT HAS SIGNIFICANTLY NARROWED ITS APPLICATION. (IN THE FOLLOWING PARAGRAPHS WE RELY HEAVILY UPON THE ARGUMENT PRESENTED IN A MEMORANDUM TO DEPUTY ATTORNEY GENERAL BENJAMIN CIVILETTI FROM THE OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE, OUTLINING THE DEPARTMENT'S UNDERSTANDING OF THE JURISDICTION OF THE STATE AND FEDERAL GOVERNMENTS OVER VICTIMLESS OFFENSES BY NON-INDIANS IN INDIAN COUNTRY. THE MEMORANDUM WAS REPRINTED AT 6 INDIAN LAW REPORTER K-1. WE THINK IT APPROPRIATE TO CHARACTERIZE A PESTICIDE USE INFRACTION AS A "VICTIMLESS" OFFENSE SINCE THAT TERM IS USED TO CONNOTE A CRIME WHICH IS DIRECTED AGAINST SOCIETY AT LARGE, RATHER THAN AGAINST A PARTICULAR INDIVIDUAL.) THE COURT HAS HELD THAT WHERE A CRIME IS COMMITTED ON A RESERVATION BY A NON-INDIAN AGAINST ANOTHER NON-INDIAN, EXCLUSIVE JURISDICTION LIES IN THE STATE ABSENT TREATY PROVISIONS TO THE CONTRARY. UNITED STATES V. MCBRATNEY, 104 U. S. 621 (1882); DRAPER V. UNITED STATES, 164 U. S. 20 (1896). SUBSEQUENT SUPREME COURT CASES HAVE FOR THE MOST PART CONTAINED A CAST OF CHARACTERS IDENTICAL TO THAT IN MCBRATNEY - I.E., A NON-INDIAN OFFENDER AND A NON-INDIAN VICTIM AND "HAVE NOT ELABORATED ON WHETHER THE STATUS OF THE DEFENDANT ALONE OR HIS STATUS IN CONJUNCTION WITH THE PRESENCE OF A NON-INDIAN VICTIM IS CRITICAL." ILR K-2, K-3. STATE COURT DECISIONS, HOWEVER, HAVE INTERPRETED MCBRATNEY AS SUPPORTING STATE JURISDICTION OVER "VICTIMLESS" OFFENSES COMMITTED BY NON-INDIANS ON INDIAN LANDS. SEE, E.G., EX PARTE CROSBY, 38 NEV. 389, 149 P. 989 (1915); STATE V. LINDSEY, 133 WASH. 140, 233 P. 327 (1925).

ACCORDING TO THE JUSTICE DEPARTMENT:

"AT THE SAME TIME AS MCBRATNEY HAS BEEN GIVEN SUCH BROAD APPLICATION, HOWEVER, THE COURTS HAVE CAREFULLY RECOGNIZED THAT FEDERAL JURISDICTION IS RETAINED WITH REGARD TO OFFENSES AGAINST INDIANS. THE COURT IN BOTH MCBRATNEY AND DRAPER WAS CAREFUL TO LIMIT ITS HOLDINGS TO THE PRECISE FACTS PRESENTED, RESERVING THE QUESTION WHETHER STATE JURISDICTION WOULD ALSO BE FOUND WITH REGARD TO THE 'PUNISHMENT OF CRIMES COMMITTED BY OR AGAINST INDIANS, AND THE PROTECTION OF THE INDIANS IN THEIR IMPROVEMENTS.' SEE 104 U. S. AT 624. SUBSEQUENT DECISIONS HAVE EXPRESSLY RECOGNIZED THAT WHERE A CRIME IS COMMITTED IN INDIAN COUNTRY BY A NON-INDIAN AGAINST THE PERSON OR PROPERTY OF AN INDIAN VICTIM, FEDERAL JURISDICTION WILL LIE." UNITED STATES V. CHAVEZ, 290 U. S. 357 (1933) (THEFT); UNITED STATES V. RAMSEY, 271 U. S. 467 (1926) (MURDER); DONNELLY V. UNITED STATES, 228 U. S. 243 (1913) (MURDER).

WE NOTE THAT THE RULE THAT FEDERAL JURISDICTION WILL LIE WHERE A NON-INDIAN COMMITS A CRIME AGAINST AN INDIAN ON AN INDIAN RESERVATION CANNOT BE REGARDED AS ALL-ENCOMPASSING DUE TO SUBSEQUENT LEGISLATION ENACTED BY CONGRESS. THE LEGISLATION TO WHICH WE REFER, CODIFIED AT 18 U.S.C. SEC. 1162 AND 25 U.S.C. SEC. 1321, IS NOT RELEVANT FOR OUR PURPOSES HERE, BUT WILL BE DISCUSSED BELOW.

SINCE A DETERMINATION AS TO WHETHER FEDERAL OR STATE JURISDICTION ATTACHES TO A CRIME IN WHICH THERE IS AN IDENTIFIABLE VICTIM DEPENDS ON THE IDENTITY OF THAT VICTIM (I.E., WHETHER INDIAN OR NON-INDIAN), EXCEPT IN A SITUATION IN WHICH SEC. 1321 OR SEC. 1162 IS PERTINENT, IT IS NOT READILY APPARENT WHICH JURISDICTION SHOULD ATTACH WHERE, AS HERE, A VICTIMLESS CRIME IS AT ISSUE. THE JUSTICE DEPARTMENT CONCLUDED THAT:

"*** A CONCRETE AND PARTICULARIZED THREAT TO THE PERSON OR PROPERTY OF AN INDIAN OR TO SPECIFIC TRIBAL INTERESTS (BEYOND PRESERVING THE PEACE OF THE RESERVATION) IS NECESSARY BEFORE FEDERAL JURISDICTION CAN BE SAID TO ATTACH. IN THE ABSENCE OF A TRUE VICTIM, UNLESS IT CAN BE SAID THAT THE OFFENSE PECULIARLY AFFECTS AN INDIAN OR THE TRIBE ITSELF, MCBRATNEY WOULD CONTROL, LEAVING IN THE STATES THE EXCLUSIVE JURISDICTION TO PUNISH OFFENDERS CHARGED WITH 'VICTIMLESS' CRIMES." 6 INDIAN LAW REPORTER K-4.

APPLICATION OF THIS REASONING TO OUR CASE YIELDS THE CONCLUSION THAT THE STATES WOULD HAVE EXCLUSIVE JURISDICTION TO PUNISH A NON-INDIAN WHO COMMITS A PESTICIDE USE VIOLATION ON INDIAN TERRITORY. JURISDICTION OVER THE OFFENSE CARRIES ALONG WITH IT THE AUTHORITY TO ENFORCE THE LAW.

18 U.S.C. SEC. 1162 PROVIDES FOR STATE JURISDICTION OVER OFFENSES COMMITTED BY OR AGAINST INDIANS IN SPECIFIED AREAS OF INDIAN COUNTRY AS FOLLOWS:

"(A) EACH OF THE STATES OR TERRITORIES LISTED IN THE FOLLOWING TABLE SHALL HAVE JURISDICTION OVER OFFENSES COMMITTED BY OR AGAINST INDIANS IN THE AREAS OF INDIAN COUNTRY LISTED OPPOSITE THE NAME OF THE STATE OR TERRITORY TO THE SAME EXTENT THAT SUCH STATE OR TERRITORY HAS JURISDICTION OVER OFFENSES COMMITTED ELSEWHERE WITHIN THE STATE OR TERRITORY, AND THE CRIMINAL LAWS OF SUCH STATE OR TERRITORY SHALL HAVE THE SAME FORCE AND EFFECT WITHIN SUCH INDIAN COUNTRY AS THEY HAVE ELSEWHERE WITHIN THE STATE OR TERRITORY:

STATE OR TERRITORY INDIAN COUNTRY AFFECTED

ALASKA ALL INDIAN COUNTRY WITHIN THE STATE, EXCEPT THAT ON ANNETTE ISLANDS, THE METLAKATLA INDIAN COMMUNITY MAY EXERCISE JURISDICTION OVER OFFENSES COMMITTED BY INDIANS IN THE SAME MANNER IN WHICH SUCH JURISDICTION MAY BE EXERCISED BY INDIAN TRIBES IN INDIAN COUNTRY OVER WHICH STATE JURISDICTION HAS NOT BEEN EXTENDED.

CALIFORNIA ALL INDIAN COUNTRY WITHIN THE STATE.

MINNESOTA ALL INDIAN COUNTRY WITHIN THE STATE, EXCEPT THE RED LAKE RESERVATION.

NEBRASKA ALL INDIAN COUNTRY WITHIN THE STATE.

OREGON ALL INDIAN COUNTRY WITHIN THE STATE, EXCEPT THE WARM SPRINGS RESERVATION.

WISCONSIN ALL INDIAN COUNTRY WITHIN THE STATE."

25 U.S.C. SEC. 1321 FURTHER PROVIDES FOR THE ASSUMPTION OF CRIMINAL JURISDICTION BY THE STATES:

"(A) THE CONSENT OF THE UNITED STATES IS HEREBY GIVEN TO ANY STATE NOT HAVING JURISDICTION OVER CRIMINAL OFFENSES COMMITTED BY OR AGAINST INDIANS IN THE AREAS OF INDIAN COUNTRY SITUATED WITHIN SUCH STATE TO ASSUME, WITH THE CONSENT OF THE INDIAN TRIBE OCCUPYING THE PARTICULAR INDIAN COUNTRY OR PART THEREOF WHICH COULD BE AFFECTED BY SUCH ASSUMPTION, SUCH MEASURE OF JURISDICTION OVER ANY OR ALL OF SUCH OFFENSES COMMITTED WITHIN SUCH INDIAN COUNTRY OR ANY PART THEREOF AS MAY BE DETERMINED BY SUCH STATE TO THE SAME EXTENT THAT SUCH STATE HAS JURISDICTION OVER ANY SUCH OFFENSE COMMITTED ELSEWHERE WITHIN THE STATE, AND THE CRIMINAL LAWS OF SUCH STATE SHALL HAVE THE SAME FORCE AND EFFECT WITHIN SUCH INDIAN COUNTRY OR PART THEREOF AS THEY HAVE ELSEWHERE WITHIN THAT STATE."

25 U.S.C. SEC. 1323 AUTHORIZES THE UNITED STATES TO ACCEPT A RETROCESSION BY ANY STATE OF ANY OR ALL OF THE CRIMINAL JURISDICTION ACQUIRED BY SUCH STATE PURSUANT TO THE ABOVE CITED SEC. 1162. IN EXECUTIVE ORDER NO. 11435, NOV. 21, 1968, 33 F. R. 17339, PRESIDENT JOHNSON DESIGNATED AND EMPOWERED THE SECRETARY OF THE INTERIOR TO ACCEPT ANY SUCH RETROCESSION OF JURISDICTION.

ACCORDINGLY, JURISDICTION OVER PESTICIDE USE VIOLATIONS COMMITTED BY INDIANS ON INDIAN LANDS MAY VARY FROM STATE TO STATE. IF AN INDIAN COMMITS A PESTICIDE USE VIOLATION ON ONE OF THE RESERVATIONS ENUMERATED IN SEC. 1162, THE STATE IN WHICH THE RESERVATION WAS SITUATED WILL HAVE JURISDICTION OVER THE OFFENSE, UNLESS THE UNITED STATES HAS ACCEPTED A RETROCESSION OF JURISDICTION. AN INDIAN WHO COMMITS A PESTICIDE USE VIOLATION ON A RESERVATION OTHER THAN ONE OF THOSE LISTED IN SEC. 1162 WOULD BE SUBJECT TO THE JURISDICTION OF THE STATE IN WHICH THE RESERVATION IS LOCATED IF THE STATE HAS ASSUMED, WITH THE CONSENT OF THE INDIAN TRIBE OCCUPYING THE TERRITORY IN QUESTION, SUCH JURISDICTION. AN INDIAN WHO COMMITS AN OFFENSE ON A RESERVATION IN A STATE WHICH HAS NOT ASSUMED JURISDICTION WOULD PRESUMABLY BE SUBJECT TO FEDERAL JURISDICTION. AGAIN, HOWEVER, IF STATE INSPECTORS HAVE BEEN DELEGATED AUTHORITY TO ASSIST IN THE ENFORCEMENT OF THE FEDERAL ACT, THE STATE PERSONNEL COULD ENTER INDIAN TERRITORY TO CONDUCT INSPECTIONS.

IV. STATE WITH ITS OWN PESTICIDE USE REGULATIONS WHICH ARE STRICTER THAN THE FEDERAL LAW

AS PREVIOUSLY NOTED, 18 U.S.C. SEC. 1152 PROVIDES THAT:

"EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY LAW, THE GENERAL LAWS OF THE UNITED STATES AS TO THE PUNISHMENT OF OFFENSES COMMITTED IN ANY PLACE WITHIN THE SOLE AND EXCLUSIVE JURISDICTION OF THE UNITED STATES, EXCEPT THE DISTRICT OF COLUMBIA, SHALL EXTEND TO THE INDIAN COUNTRY."

THIS SECTION WOULD REQUIRE THAT THE ASSIMILATIVE CRIMES ACT, 18 U.S.C. SEC. 13, BE APPLIED ON INDIAN RESERVATIONS. (THE ASSIMILATIVE CRIMES ACT PROVIDES THAT AN ACT OR OMISSION OCCURRING IN AN AREA WITHIN THE FEDERAL JURISDICTION WHICH WOULD BE A PUNISHABLE OFFENSE IF COMMITTED OR OMITTED WITHIN THE JURISDICTION OF THE STATE IN WHICH SUCH AREA IS LOCATED SHALL BE A FEDERAL OFFENSE.) THE ACT IS RELEVANT FOR OUR PURPOSES ONLY TO THE EXTENT THAT STATE LAW PROSCRIBES PESTICIDE USES OTHER THAN THOSE PROHIBITED IN SEC. 12 OF FIFRA, SINCE IT APPLIES ONLY TO ACTS AND OMISSIONS PUNISHABLE UNDER STATE LAW WHICH ARE NOT MADE PENAL BY FEDERAL STATUTE. SEE, E.G., U. S. V. PATMORE, 475 F.2D 752 (1973). THE ASSIMILATIVE CRIMES ACT HAS BEEN REGARDED AS ESTABLISHING FEDERAL JURISDICTION OVER "VICTIMLESS" OFFENSES OCCURRING WITHIN A FEDERAL ENCLAVE. SEE, E.G., UNITED STATES V. CHAPMAN, 321 F. SUPP. 767 (E.D.VA. 1971). 6 ILR K-2.

A PERSUASIVE ARGUMENT CAN THUS BE MADE THAT THE USE OF A PESTICIDE ON INDIAN LAND, WHICH, HAD IT OCCURRED ELSEWHERE IN THE STATE, WOULD BE IN VIOLATION OF STATE LAW, CONSTITUTES A FEDERAL OFFENSE. HOWEVER, IT IS NOT CLEAR WHETHER STATE INSPECTORS COULD GO TO AN INDIAN RESERVATION TO ENFORCE THIS LAW SINCE THE PREVIOUSLY PRESENTED ARGUMENT AS TO THE STATUTORILY CONFERRED AUTHORITY OF THE ADMINISTRATOR TO DELEGATE ENFORCEMENT RESPONSIBILITY TO STATE OFFICERS WOULD NOT APPLY.

QUESTION 6(B): IF PRIMARY ENFORCEMENT RESPONSIBILITY HAS BEEN DELEGATED TO A STATE, ARE FEDERAL AND INDIAN LANDS WITHIN THE STATE EXEMPT FROM THE REGISTRATION PROVISIONS OF THE 1978 ACT?

ANSWER: FEDERAL AND INDIAN LANDS ARE NOT EXEMPT FROM THE REGISTRATION PROVISIONS OF THE 1978 ACT. THE ACT DOES NOT DELEGATE FULL AUTHORITY OVER PESTICIDE REGISTRATION TO THE STATES. RATHER, IT DELEGATES TO THE STATES THE DISCRETION TO REGISTER FOR ADDITIONAL USES A PESTICIDE WHICH HAS ALREADY BEEN FEDERALLY REGISTERED. SECTION 24(C)(1), 7 U.S.C. SEC. 136VC)(1), PROVIDES THAT:

"A STATE MAY PROVIDE REGISTRATION FOR ADDITIONAL USES OF FEDERALLY REGISTERED PESTICIDES FORMULATED FOR DISTRIBUTION AND USE WITHIN THAT STATE TO MEET SPECIAL LOCAL NEEDS IN ACCORD WITH THE PURPOSES OF THIS ACT, AND IF REGISTRATION FOR SUCH USE HAS NOT PREVIOUSLY BEEN DENIED, DISAPPROVED, OR CANCELLED BY THE ADMINISTRATOR. SUCH REGISTRATION SHALL BE DEEMED REGISTRATION UNDER SECTION 3 FOR ALL PURPOSES OF THIS ACT, BUT SHALL AUTHORIZE DISTRIBUTION AND USE ONLY WITHIN SUCH STATE."

THE ADMINISTRATOR MAY SUSPEND THIS AUTHORITY IF HE DETERMINES THAT A STATE IS UNABLE OR HAS FAILED TO EXERCISE ADEQUATE CONTROLS OVER SUCH REGISTRATION. (SEC. 24(C)(4)).

SPECIAL STUDIES AND ANALYSIS

BY: JENNIFER WESTFALL