{by California Farm Bureau---Urge Governor to support AB 1011
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Bill improves business climate

Take Action! Visit this page:
http://capwiz.com/cfbf/utr/1/NDMRFBYYAE/BZMKFBYYNQ/

AB 1011 improves the business climate in California by providing
farmers with a variety of new pesticides that the other 49 states in  our
nation are able to use.  This streamlined registration process  will
benefit growers across that state by ensuring a fair and open  marketplace
for crop protection materials. 

Write a letter today to ensure low cost production tools. Contact
Governor Schwarzenegger and urge him to sign AB 1011!)

CHAPTER
An act to amend Sections 12400, 12401, 12406, and 12811.5
of, to add Sections 12836.5 and 12836.6 to, and to repeal Section
12404 of the Food and Agricultural Code, relating to pesticides.
legislative counsel’s digest
AB 1011, Matthews. Pesticide brokers.
Existing law generally regulates pesticides and provides that it
is unlawful for any person, other than the registrant of a pesticide
or a licensed pest control dealer to sell or distribute registered
pesticide products that are labeled for agricultural use, unless he
or she is a licensed pesticide broker. However this does not apply
to sellers or distributors of pesticides that are labeled only for
nonagricultural uses.
This bill would remove provisions specifying that these
provisions do not apply to persons who operate as sellers or
distributors of pesticides that are labeled only for nonagricultural
uses. Because this bill would require additional persons to be
licensed, it would expand the definition of a crime and impose a
state-mandated local program.
This bill would also require pesticide retailers to maintain
records that show the names and contact information of their
suppliers, as specified.
Existing law requires that an application for a pesticide broker
license be accompanied by a fee and provides a penalty for
delayed payment.
This bill would remove those provisions calling for payment of
a fee.
Existing law requires licensed pesticide brokers to maintain
business records, as specified, that must be available for audit by
the Director of Pesticide Regulation or county agricultural
commissioner.
This bill would remove provisions requiring these records to be
available to the county agricultural commissioner.
Existing law requires every manufacturer of, importer of, or
dealer in any pesticide to obtain a certificate of registration from
the Department of Pesticide Regulation before the pesticide is
offered for sale. Existing law provides that data previously
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submitted to the Director of Pesticide Regulation or to the
Administrator of the United States Environmental Protection
Agency to support an application for the registration of a
pesticide shall not be used without permission to support an
application by another person.
This bill would repeal these provisions and instead provide that
the director may rely upon any evaluations of previously
submitted data with respect to an application for registration, an
amendment to a registration, or to maintain a registration if
certain criteria are met including that the applicant either obtain
written permission from the owner to rely on the data or
irrevocably offer to pay the owner a share of the cost of
producing the data, as specified. This bill would provide that the
specific terms and amount of payment shall be fixed by
agreement between the applicant and the owner but shall not
delay approval of the applicant’s application. This bill would
provide that if agreement cannot be reached by the parties, either
party may initiate a proceeding to determine the amount due, as
specified. The bill would require the department to make
available to the public domain its index of data submitted in
support of registration applications, the ownership of that data,
and the date it was submitted to California. The bill would
require the director, with the assistance of the Legislative
Analyst, to conduct a study to consider the consequences of
data-sharing agreements required by the bill, with a report to the
Legislature by December 31, 2008. This bill would provide that
if the owner cannot be identified, the applicant will be absolved
of his or her obligation to pay if the owner does not identify
himself or herself within 12 months after registration of the
pesticide product.
This bill would also state legislative intent that the department
shall not be involved in resolving issues between applicants and
owners over financial obligations arising from data ownership.
The bill would require the director to promulgate emergency
regulations to govern those proceedings.
The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by
the state. Statutory provisions establish procedures for making
that reimbursement.
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This bill would provide that no reimbursement is required by
this act for a specified reason.
The people of the State of California do enact as follows:
SECTION 1. It is the intent of the Legislature that the
Department of Pesticide Regulation not be responsible for
managing and resolving financial obligations among registrants
regarding data ownership, but should limit its registration
activities to evaluating whether pesticide products should be
registered under current department requirements and to
endeavoring to accept applications for registration of new
pesticide products containing new active ingredients concurrently
with the applicant’s submission to the U.S. Environmental
Protection Agency. Disputes among applicants and data owners
related to data ownership and cost sharing should be resolved by
resort to a private proceeding. The Department of Pesticide
Regulation shall not be involved in resolving issues between
applicants and data owners over financial obligations arising
from data ownership.
SEC. 2. Section 12400 of the Food and Agricultural Code is
amended to read:
12400. It is unlawful for any person, other than the registrant
or pest control dealer licensed pursuant to Section 12107, to sell,
offer to sell, or distribute into this state, or bring into the state for
sale, any pesticide products that have been registered by the
director unless the person is licensed by the director as a
pesticide broker.
SEC. 3. Section 12401 of the Food and Agricultural Code is
amended to read:
12401. An application for a pesticide broker license, or
renewal of a license, shall be in the form prescribed by the
director. Each application for a license, or license renewal, shall
state the name and address of the applicant, and any other
information specified on the application or required by the
director.
SEC. 4. Section 12404 of the Food and Agricultural Code is
repealed.
SEC. 5. Section 12406 of the Food and Agricultural Code is
amended to read:
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12406. (a) Each licensed pesticide broker, or person who is
required to be licensed as a pesticide broker pursuant to Section
12400, shall maintain at its principal place of business the
records of its purchases subject to mill assessments, sales, and
distributions of pesticides into or within this state, including
those of its branch locations, for four years. These records shall
include copies of invoices showing payment of the mill
assessment. The records shall be available for audit by the
director.
(b) Each licensed pesticide broker, or person who is required
to be licensed as a pesticide broker pursuant to Section 12400,
shall report quarterly to the director the total dollars of sales and
total pounds or gallons sold into or within this state of each
pesticide sold and subject to Sections 12841 and 12841.1. The
quarterly report shall be in the form prescribed by the director
and shall include information from the broker’s licensed branch
locations, if any, and any other information specified on the form
or required by the director. The report shall include a
certification, under penalty of perjury, that the information
contained in the report is true and correct. The report shall
accompany payment of assessments required by Sections 12841
and 12841.1.
(c) Pesticide retailers shall maintain records that show the
names and contact information of their suppliers of pesticide in
the current year. These records shall be available for audit by the
director.
SEC. 6. Section 12811.5 of the Food and Agricultural Code is
amended to read:
12811.5. The director may rely upon any evaluations of
previously submitted data to determine whether to accept an
application for registration of a new pesticide product, an
amendment to a registered pesticide product, or to maintain the
registration of a pesticide product regardless of the ownership of
the data previously evaluated. However, effective January 1,
2006, applicants will be subject to the following provisions:
(a) If an applicant for registration of a pesticide product, or an
amendment of a registered pesticide product, including a
registrant that desires to maintain its registration of a pesticide
product after the director makes a formal re-evaluation request
for additional data, does not submit its own data to fulfill a
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current data requirement imposed by the director and relies upon
data that the applicant does not own or have written permission
to rely upon that was submitted to the director by another entity
after January 1, 1991, and meets the three criteria set forth in this
subdivision, the applicant must either (i) obtain written
permission from the data owner to rely on the data, (ii) formulate
or obtain its product from a source that has data authorization
from the data owner, or a source that complies with subdivision
(c), or (iii) if the data meets the criteria set forth in paragraphs
(1), (2), and (3), irrevocably offer to pay the data owner a share
of the cost of producing the data and comply with the provisions
of subdivision (d). The director may rely upon data submitted
prior to January 1, 1991, or that does not meet the criteria set
forth in paragraphs (1), (2), and (3) to support any application or
comply with any formal re-evaluation request for additional data,
without permission from the data owner. An offer to pay, and a
payment pursuant to that offer, shall only be required as to data
not submitted by the applicant that meets the criteria set forth in
paragraphs (1), (2), and (3). To be eligible for cost sharing
pursuant to this section, the data must meet all of the following
requirements:
(1) The data was required by the director in order to obtain,
amend, or maintain the data owner’s California registration or
registrations for uses covered by the application, amendment, or
formal re-evaluation request for additional data.
(2) There has been no arbitration award, data compensation, or
data cost-sharing agreement pertaining to data supporting the
product at the federal level pursuant to Section 3(c)(1) (F)(iii) or
3(c)(2)(B) of the Federal Insecticide, Fungicide, and Rodenticide
Act (7 U.S.C. Sec. 136a)(FIFRA), or, if an award or agreement
exists, the use of data in California was excluded from
compensation or cost sharing on its face.
(3) The data that fulfills a current requirement was submitted
to the U.S. Environmental Protection Agency or the department
no more than 15 years prior to the date of the applicant’s
California registration, application, or amendment or the formal
re-evaluation request for additional data to which the registrant’s
reliance responds, provided that as to data submitted to the
department as of August 1, 2005, in support of the first
registration of a product, the applicable period shall be 17 years
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from the date of submission to the U.S. Environmental Protection
Agency.
(b) If the director previously imposed a specific documented
data requirement after January 1, 1991, to obtain, amend, or
maintain the California registration of a pesticide product
substantially similar to the applicant’s product and that data
requirement is not currently imposed in California for
registration, amendment, or maintenance of the applicant’s
product, the applicant is further obligated to submit data to meet
the requirement, obtain written permission from an owner of the
data to rely upon the data, formulate or obtain its product from a
source that has authorization from the data owner to rely upon
the data or from a source that complies with subdivision (c), or, if
the data meets the criteria set forth in paragraphs (1), (2), and (3),
irrevocably offer to pay the data owner a share in the cost of
producing the data and comply with the provisions of subdivision
(c). An offer to pay, and a payment pursuant to that offer, shall
only be required as to data not submitted by the applicant that
meets the criteria set forth in paragraphs (1), (2), and (3). To be
eligible for cost sharing pursuant to this section, the data must
meet all of the following requirements:
(1) The data met a specific, documented requirement of the
director to obtain, amend, or maintain the California registration
of the data owner’s pesticide product for a use covered by the
applicant’s application or amendment.
(2) There has been no arbitration award, data compensation, or
data cost-sharing agreement pertaining to data supporting the
product at the federal level pursuant to Section 3(c)(1)(F)(iii) or
3(c)(2)(B) of the Federal Insecticide, Fungicide, and Rodenticide
Act (7 U.S.C. Sec. 136a), or, if an award or agreement exists, the
use of the data in California was excluded from compensation or
cost sharing on its face.
(3) The data was submitted to the U.S. Environmental
Protection Agency or Department of Pesticide Regulation by the
data owner after January 1, 1991, and no more than 15 years
prior to the date of the applicant’s California application for
registration or amendment or the response to a formal specific
document data requirement to which the registrant’s reliance
responds, provided that as to data submitted to the department as
of August 1, 2005, in support of the first registration of a product,
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the applicable period shall be 17 years from the date of
submission to the U.S. Environmental Protection Agency.
(c) An applicant may formulate its product from a source that
does not have data authorization provided that source has
submitted data to support the product or makes or has made an
irrevocable offer to pay the data owner a share of the cost of
producing the data required pursuant to subdivision (a) or (b) for
the applicant’s product and complies with or has made payment
in accordance with the provisions of subdivision (d). In the event
that the source has already reached a data compensation or
cost-sharing agreement or there has been an arbitration award
under FIFRA that excludes the right to rely on the data to satisfy
the California requirement on its face, the source must make or
have made a new irrevocable offer to pay a share of the cost of
producing that data to support the applicant’s product in
California and comply with the provisions of subdivision (d).
(d) If an applicant is required to offer to pay a share in the cost
of producing the data pursuant to subdivision (a) or (b), or if a
source of product makes an offer pursuant to subdivision (c), the
applicant or source must submit to the data owner upon
application to the department an irrevocable offer to pay the data
owner a share in the cost of producing the data and to comply
with regulations promulgated under this subdivision to determine
the amount and terms, if the parties cannot agree. If a data owner
for which cost sharing is required under subdivision (a) or (b)
cannot be identified from information readily available to the
applicant, the applicant’s obligation under subdivision (a) or (b)
will be absolved if the data owner does not identify himself or
herself to the applicant within 12 months after registration of the
pesticide product. If within 12 months of registration, the data
owner identifies himself or herself to the applicant and the
applicant has not already made an irrevocable offer to pay to the
data owner, or the applicant’s source of product has not made an
offer pursuant to subdivision (c), the applicant must do so
promptly. In either event, the specific terms and amount of
payments to be made shall be fixed by agreement between the
applicant and the data owner, but determination of those amounts
and terms shall not delay approval of the applicant’s application.
If agreement cannot be reached about the terms and amount of
payment required by this section at any time more than 90 days
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after issuance of an irrevocable offer to pay, either the applicant,
source or data owner may initiate, or with the consent of all
parties, join a proceeding under FIFRA, pursuant to regulations
promulgated by the director pursuant to this statute. The purpose
of this proceeding shall be to determine the amount due under
this section. The director shall promulgate those regulations as
emergency regulations within 60 days of the enactment of the bill
that enacts this section. The regulations shall provide all of the
following:
(1) Allow the proceeding authorized by this subdivision, upon
mutual agreement of the parties, to be consolidated with dispute
resolution under the federal Insecticide Fungicide and
Rodenticide Act (7 U.S.C. Sec. 136, et.seq.).
(2) Require that the decisionmaker consider, among other
factors, that the data owner’s exclusive right to sell the pesticide
resulted in the data owner recovering all or part of the costs of
generating the data.
(3) Require that the parties to the proceeding share equally in
the payment of the expenses thereof.
(e) If a data owner fails to participate in a procedure for
reaching an agreement or in a proceeding as required by
subdivision (d), or fails to comply with the terms of an agreement
or decision conducted under subdivision (d), then that data owner
forfeits his or her right to cost recovery as a result of the use of
the data at issue.
(f) If the director finds that an applicant has failed to make an
offer to pay as required under subdivision (a) or (b), or if its
source of product has failed to make an offer pursuant to
subdivision (c), or if an applicant or its source of product has
failed to participate in a proceeding for reaching an agreement, or
has refused to participate in a proceeding pursuant to subdivision
(d), or has failed to comply with an agreement or to comply with
an order, or to pay an award resulting from that proceeding, the
director shall cancel the registration of the pesticide product in
support of which the data was used in accordance with the
provisions of subdivision (g), notwithstanding the provisions of
Section 12825.
(g) If the applicant subject to subdivision (a) or (b) fails to
comply with the provisions of this article, the data owner shall
notify the director of the specific provision of noncompliance and
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provide proof of notification to the applicant of its claim of
noncompliance. All parties shall have 30 days from the date of
receipt of notification by the director to submit written evidence
or arguments to the director regarding the claim and any defenses
thereto. The director shall provide a written finding within 60
days of the deadline for submission as to the claim and the
resulting consequences.
(h) No hearing or live testimony shall be conducted under
subdivision (g) and this proceeding shall not be used as
mechanism to prevent or delay the registration or payment for
cost sharing as determined by this article. The finding of the
director shall be final and conclusive, except that any party
aggrieved by such a finding may seek review within 30 days of
the finding pursuant to Section 1094.5 of the Code of Civil
Procedure.
(i) In lieu of seeking a determination by the director and
cancellation of the registration pursuant to subdivision (f), the
data owner may bring an action in any California court of
competent jurisdiction against the applicant to enforce the
obligations of that party set forth in the provisions of this section.
(j) No cost sharing as provided in subdivisions (a), (b), and (c)
shall be required to support an application for annual renewal of
a pesticide product registration, provided this provision shall not
authorize renewal of a product registered prior to the effective
date of this section if that registration is declared to have been
unlawfully issued by a court of competent jurisdiction.
(k) The Department of Pesticide Regulation shall make
available in the public domain its index of data submitted in
support of registration applications, the ownership of that data,
and the date it was submitted to California.
SEC. 7. Section 12836.5 is added to the Food and
Agricultural Code, to read:
12836.5. The director shall accept applications for
registration of pesticide products containing a new active
ingredient concurrently with the application to the United States
Environmental Protection Agency. The application for
registration must include all data and information that meet the
requirements of this chapter.
SEC. 8. Section 12836.6 is added to the Food and
Agricultural Code, to read:
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12836.6. The director shall, with the assistance of the
Legislative Analyst, conduct a study to consider more carefully
the consequences of data-sharing agreements required under
Sections 12011.5 and 12836.5 and the volume of high-hazard
pesticides sold in California. The report shall be submitted to the
Legislature no later than December 31, 2008.
SEC. 9. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the
penalty for a crime or infraction, within the meaning of Section
17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
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Approved , 2005
Governor