§ 136d. — Administrative review; suspension.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 7USC136d]
TITLE 7--AGRICULTURE
CHAPTER 6--INSECTICIDES AND ENVIRONMENTAL PESTICIDE CONTROL
SUBCHAPTER II--ENVIRONMENTAL PESTICIDE CONTROL
Sec. 136d. Administrative review; suspension
(a) Existing stocks and information
(1) Existing stocks
The Administrator may permit the continued sale and use of
existing stocks of a pesticide whose registration is suspended or
canceled under this section, or section 136a or 136a-1 of this
title, to such extent, under such conditions, and for such uses as
the Administrator determines that such sale or use is not
inconsistent with the purposes of this subchapter.
(2) Information
If at any time after the registration of a pesticide the
registrant has additional factual information regarding unreasonable
adverse effects on the environment of the pesticide, the registrant
shall submit such information to the Administrator.
(b) Cancellation and change in classification
If it appears to the Administrator that a pesticide or its labeling
or other material required to be submitted does not comply with the
provisions of this subchapter or, when used in accordance with
widespread and commonly recognized practice, generally causes
unreasonable adverse effects on the environment, the Administrator may
issue a notice of the Administrator's intent either--
(1) to cancel its registration or to change its classification
together with the reasons (including the factual basis) for the
Administrator's action, or
(2) to hold a hearing to determine whether or not its
registration should be canceled or its classification changed.
Such notice shall be sent to the registrant and made public. In
determining whether to issue any such notice, the Administrator shall
include among those factors to be taken into account the impact of the
action proposed in such notice on production and prices of agricultural
commodities, retail food prices, and otherwise on the agricultural
economy. At least 60 days prior to sending such notice to the registrant
or making public such notice, whichever occurs first, the Administrator
shall provide the Secretary of Agriculture with a copy of such notice
and an analysis of such impact on the agricultural economy. If the
Secretary comments in writing to the Administrator regarding the notice
and analysis within 30 days after receiving them, the Administrator
shall publish in the Federal Register (with the notice) the comments of
the Secretary and the response of the Administrator with regard to the
Secretary's comments. If the Secretary does not comment in writing to
the Administrator regarding the notice and analysis within 30 days after
receiving them, the Administrator may notify the registrant and make
public the notice at any time after such 30-day period notwithstanding
the foregoing 60-day time requirement. The time requirements imposed by
the preceding 3 sentences may be waived or modified to the extent agreed
upon by the Administrator and the Secretary. Notwithstanding any other
provision of this subsection and section 136w(d) of this title, in the
event that the Administrator determines that suspension of a pesticide
registration is necessary to prevent an imminent hazard to human health,
then upon such a finding the Administrator may waive the requirement of
notice to and consultation with the Secretary of Agriculture pursuant to
this subsection and of submission to the Scientific Advisory Panel
pursuant to section 136w(d) of this title and proceed in accordance with
subsection (c) of this section. When a public health use is affected,
the Secretary of Health and Human Services should provide available
benefits and use information, or an analysis thereof, in accordance with
the procedures followed and subject to the same conditions as the
Secretary of Agriculture in the case of agricultural pesticides. The
proposed action shall become final and effective at the end of 30 days
from receipt by the registrant, or publication, of a notice issued under
paragraph (1), whichever occurs later, unless within that time either
(i) the registrant makes the necessary corrections, if possible, or (ii)
a request for a hearing is made by a person adversely affected by the
notice. In the event a hearing is held pursuant to such a request or to
the Administrator's determination under paragraph (2), a decision
pertaining to registration or classification issued after completion of
such hearing shall be final. In taking any final action under this
subsection, the Administrator shall consider restricting a pesticide's
use or uses as an alternative to cancellation and shall fully explain
the reasons for these restrictions, and shall include among those
factors to be taken into account the impact of such final action on
production and prices of agricultural commodities, retail food prices,
and otherwise on the agricultural economy, and the Administrator shall
publish in the Federal Register an analysis of such impact.
(c) Suspension
(1) Order
If the Administrator determines that action is necessary to
prevent an imminent hazard during the time required for cancellation
or change in classification proceedings, the Administrator may, by
order, suspend the registration of the pesticide immediately. Except
as provided in paragraph (3), no order of suspension may be issued
under this subsection unless the Administrator has issued, or at the
same time issues, a notice of intention to cancel the registration
or change the classification of the pesticide under subsection (b)
of this section. Except as provided in paragraph (3), the
Administrator shall notify the registrant prior to issuing any
suspension order. Such notice shall include findings pertaining to
the question of ``imminent hazard''. The registrant shall then have
an opportunity, in accordance with the provisions of paragraph (2),
for an expedited hearing before the Administrator on the question of
whether an imminent hazard exists.
(2) Expedite hearing
If no request for a hearing is submitted to the Administrator
within five days of the registrant's receipt of the notification
provided for by paragraph (1), the suspension order may be issued
and shall take effect and shall not be reviewable by a court. If a
hearing is requested, it shall commence within five days of the
receipt of the request for such hearing unless the registrant and
the Administrator agree that it shall commence at a later time. The
hearing shall be held in accordance with the provisions of
subchapter II of chapter 5 of title 5, except that the presiding
officer need not be a certified administrative law judge. The
presiding officer shall have ten days from the conclusion of the
presentation of evidence to submit recommended findings and
conclusions to the Administrator, who shall then have seven days to
render a final order on the issue of suspension.
(3) Emergency order
Whenever the Administrator determines that an emergency exists
that does not permit the Administrator to hold a hearing before
suspending, the Administrator may issue a suspension order in
advance of notification to the registrant. The Administrator may
issue an emergency order under this paragraph before issuing a
notice of intention to cancel the registration or change the
classification of the pesticide under subsection (b) of this section
and the Administrator shall proceed to issue the notice under
subsection (b) of this section within 90 days of issuing an
emergency order. If the Administrator does not issue a notice under
subsection (b) of this section within 90 days of issuing an
emergency order, the emergency order shall expire. In the case of an
emergency order, paragraph (2) shall apply except that (A) the order
of suspension shall be in effect pending the expeditious completion
of the remedies provided by that paragraph and the issuance of a
final order on suspension, and (B) no party other than the
registrant and the Administrator shall participate except that any
person adversely affected may file briefs within the time allotted
by the Agency's rules. Any person so filing briefs shall be
considered a party to such proceeding for the purposes of section
136n(b) of this title.
(4) Judicial review
A final order on the question of suspension following a hearing
shall be reviewable in accordance with section 136n of this title,
notwithstanding the fact that any related cancellation proceedings
have not been completed. Any order of suspension entered prior to a
hearing before the Administrator shall be subject to immediate
review in an action by the registrant or other interested person
with the concurrence of the registrant in an appropriate district
court, solely to determine whether the order of suspension was
arbitrary, capricious or an abuse of discretion, or whether the
order was issued in accordance with the procedures established by
law. The effect of any order of the court will be only to stay the
effectiveness of the suspension order, pending the Administrator's
final decision with respect to cancellation or change in
classification. This action may be maintained simultaneously with
any administrative review proceedings under this section. The
commencement of proceedings under this paragraph shall not operate
as a stay of order, unless ordered by the court.
(d) Public hearings and scientific review
In the event a hearing is requested pursuant to subsection (b) of
this section or determined upon by the Administrator pursuant to
subsection (b) of this section, such hearing shall be held after due
notice for the purpose of receiving evidence relevant and material to
the issues raised by the objections filed by the applicant or other
interested parties, or to the issues stated by the Administrator, if the
hearing is called by the Administrator rather than by the filing of
objections. Upon a showing of relevance and reasonable scope of evidence
sought by any party to a public hearing, the Hearing Examiner shall
issue a subpena to compel testimony or production of documents from any
person. The Hearing Examiner shall be guided by the principles of the
Federal Rules of Civil Procedure in making any order for the protection
of the witness or the content of documents produced and shall order the
payment of reasonable fees and expenses as a condition to requiring
testimony of the witness. On contest, the subpena may be enforced by an
appropriate United States district court in accordance with the
principles stated herein. Upon the request of any party to a public
hearing and when in the Hearing Examiner's judgment it is necessary or
desirable, the Hearing Examiner shall at any time before the hearing
record is closed refer to a Committee of the National Academy of
Sciences the relevant questions of scientific fact involved in the
public hearing. No member of any committee of the National Academy of
Sciences established to carry out the functions of this section shall
have a financial or other conflict of interest with respect to any
matter considered by such committee. The Committee of the National
Academy of Sciences shall report in writing to the Hearing Examiner
within 60 days after such referral on these questions of scientific
fact. The report shall be made public and shall be considered as part of
the hearing record. The Administrator shall enter into appropriate
arrangements with the National Academy of Sciences to assure an
objective and competent scientific review of the questions presented to
Committees of the Academy and to provide such other scientific advisory
services as may be required by the Administrator for carrying out the
purposes of this subchapter. As soon as practicable after completion of
the hearing (including the report of the Academy) but not later than 90
days thereafter, the Administrator shall evaluate the data and reports
before the Administrator and issue an order either revoking the
Administrator's notice of intention issued pursuant to this section, or
shall issue an order either canceling the registration, changing the
classification, denying the registration, or requiring modification of
the labeling or packaging of the article. Such order shall be based only
on substantial evidence of record of such hearing and shall set forth
detailed findings of fact upon which the order is based.
(e) Conditional registration
(1) The Administrator shall issue a notice of intent to cancel a
registration issued under section 136a(c)(7) of this title if (A) the
Administrator, at any time during the period provided for satisfaction
of any condition imposed, determines that the registrant has failed to
initiate and pursue appropriate action toward fulfilling any condition
imposed, or (B) at the end of the period provided for satisfaction of
any condition imposed, that condition has not been met. The
Administrator may permit the continued sale and use of existing stocks
of a pesticide whose conditional registration has been canceled under
this subsection to such extent, under such conditions, and for such uses
as the Administrator may specify if the Administrator determines that
such sale or use is not inconsistent with the purposes of this
subchapter and will not have unreasonable adverse effects on the
environment.
(2) A cancellation proposed under this subsection shall become final
and effective at the end of thirty days from receipt by the registrant
of the notice of intent to cancel unless during that time a request for
hearing is made by a person adversely affected by the notice. If a
hearing is requested, a hearing shall be conducted under subsection (d)
of this section. The only matters for resolution at that hearing shall
be whether the registrant has initiated and pursued appropriate action
to comply with the condition or conditions within the time provided or
whether the condition or conditions have been satisfied within the time
provided, and whether the Administrator's determination with respect to
the disposition of existing stocks is consistent with this subchapter. A
decision after completion of such hearing shall be final.
Notwithstanding any other provision of this section, a hearing shall be
held and a determination made within seventy-five days after receipt of
a request for such hearing.
(f) General provisions
(1) Voluntary cancellation
(A) A registrant may, at any time, request that a pesticide
registration of the registrant be canceled or amended to terminate
one or more pesticide uses.
(B) Before acting on a request under subparagraph (A), the
Administrator shall publish in the Federal Register a notice of the
receipt of the request and provide for a 30-day period in which the
public may comment.
(C) In the case of a pesticide that is registered for a minor
agricultural use, if the Administrator determines that the
cancellation or termination of uses would adversely affect the
availability of the pesticide for use, the Administrator--
(i) shall publish in the Federal Register a notice of the
receipt of the request and make reasonable efforts to inform
persons who so use the pesticide of the request; and
(ii) may not approve or reject the request until the
termination of the 180-day period beginning on the date of
publication of the notice in the Federal Register, except that
the Administrator may waive the 180-day period upon the request
of the registrant or if the Administrator determines that the
continued use of the pesticide would pose an unreasonable
adverse effect on the environment.
(D) Subject to paragraph (3)(B), after complying with this
paragraph, the Administrator may approve or deny the request.
(2) Publication of notice
A notice of denial of registration, intent to cancel,
suspension, or intent to suspend issued under this subchapter or a
notice issued under subsection (c)(4) or (d)(5)(A) of section 136a-1
of this title shall be published in the Federal Register and shall
be sent by certified mail, return receipt requested, to the
registrant's or applicant's address of record on file with the
Administrator. If the mailed notice is returned to the Administrator
as undeliverable at that address, if delivery is refused, or if the
Administrator otherwise is unable to accomplish delivery of the
notice to the registrant or applicant after making reasonable
efforts to do so, the notice shall be deemed to have been received
by the registrant or applicant on the date the notice was published
in the Federal Register.
(3) Transfer of registration of pesticides registered for
minor agricultural uses
In the case of a pesticide that is registered for a minor
agricultural use:
(A) During the 180-day period referred to in paragraph
(1)(C)(ii), the registrant of the pesticide may notify the
Administrator of an agreement between the registrant and a
person or persons (including persons who so use the pesticide)
to transfer the registration of the pesticide, in lieu of
canceling or amending the registration to terminate the use.
(B) An application for transfer of registration, in
conformance with any regulations the Administrator may adopt
with respect to the transfer of the pesticide registrations,
must be submitted to the Administrator within 30 days of the
date of notification provided pursuant to subparagraph (A). If
such an application is submitted, the Administrator shall
approve the transfer and shall not approve the request for
voluntary cancellation or amendment to terminate use unless the
Administrator determines that the continued use of the pesticide
would cause an unreasonable adverse effect on the environment.
(C) If the Administrator approves the transfer and the
registrant transfers the registration of the pesticide, the
Administrator shall not cancel or amend the registration to
delete the use or rescind the transfer of the registration,
during the 180-day period beginning on the date of the approval
of the transfer unless the Administrator determines that the
continued use of the pesticide would cause an unreasonable
adverse effect on the environment.
(D) The new registrant of the pesticide shall assume the
outstanding data and other requirements for the pesticide that
are pending at the time of the transfer.
(4) Utilization of data for voluntarily canceled pesticide
When an application is filed with the Administrator for the
registration of a pesticide for a minor use and another registrant
subsequently voluntarily cancels its registration for an identical
or substantially similar pesticide for an identical or substantially
similar use, the Administrator shall process, review, and evaluate
the pending application as if the voluntary cancellation had not yet
taken place except that the Administrator shall not take such action
if the Administrator determines that such minor use may cause an
unreasonable adverse effect on the environment. In order to rely on
this subsection, the applicant must certify that it agrees to
satisfy any outstanding data requirements necessary to support the
reregistration of the pesticide in accordance with the data
submission schedule established by the Administrator.
(g) Notice for stored pesticides with canceled or suspended
registrations
(1) In general
Any producer or exporter of pesticides, registrant of a
pesticide, applicant for registration of a pesticide, applicant for
or holder of an experimental use permit, commercial applicator, or
any person who distributes or sells any pesticide, who possesses any
pesticide which has had its registration canceled or suspended under
this section shall notify the Administrator and appropriate State
and local officials of--
(A) such possession,
(B) the quantity of such pesticide such person possesses,
and
(C) the place at which such pesticide is stored.
(2) Copies
The Administrator shall transmit a copy of each notice submitted
under this subsection to the regional office of the Environmental
Protection Agency which has jurisdiction over the place of pesticide
storage identified in the notice.
(h) Judicial review
Final orders of the Administrator under this section shall be
subject to judicial review pursuant to section 136n of this title.
(June 25, 1947, ch. 125, Sec. 6, as added Pub. L. 92-516, Sec. 2, Oct.
21, 1972, 86 Stat. 984; amended Pub. L. 94-140, Sec. 1, Nov. 28, 1975,
89 Stat. 751; Pub. L. 95-251, Sec. 2(a)(2), Mar. 27, 1978, 92 Stat. 183;
Pub. L. 95-396, Secs. 11, 12, Sept. 30, 1978, 92 Stat. 828; Pub. L. 98-
620, title IV, Sec. 402(4)(A), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 100-
532, title II, Sec. 201, title IV, Sec. 404, title VIII, Sec. 801(e),
(q)(2)(B), Oct. 25, 1988, 102 Stat. 2668, 2673, 2681, 2683; Pub. L. 101-
624, title XIV, Sec. 1494, Nov. 28, 1990, 104 Stat. 3628; Pub. L. 102-
237, title X, Sec. 1006(a)(5), (b)(1), (2), (3)(C)-(E), Dec. 13, 1991,
105 Stat. 1895, 1896; Pub. L. 104-170, title I, Secs. 102, 106(a), title
II, Secs. 210(g), (h), 233, Aug. 3, 1996, 110 Stat. 1489, 1491, 1500,
1509.)
Codification
``Subchapter II of chapter 5 of title 5'', referred to in subsec.
(c)(2), was in the original ``subchapter II of Title 5'', and was
editorially changed to reflect the probable intent of Congress.
Prior Provisions
A prior section 6 of act June 25, 1947, was classified to section
135d of this title prior to amendment of act June 25, 1947, by Pub. L.
92-516.
Amendments
1996--Subsec. (a). Pub. L. 104-170, Sec. 106(a)(1), substituted
``Existing stocks and information'' for ``Cancellation after five
years'' in heading.
Subsec. (a)(1). Pub. L. 104-170, Sec. 106(a)(2), amended heading and
text generally. Prior to amendment, text read as follows: ``The
Administrator shall cancel the registration of any pesticide at the end
of the five-year period which begins on the date of its registration (or
at the end of any five year period thereafter) unless the registrant, or
other interested person with the concurrence of the registrant, before
the end of such period, requests in accordance with regulations
prescribed by the Administrator that the registration be continued in
effect. The Administrator may permit the continued sale and use of
existing stocks of a pesticide whose registration is canceled under this
subsection or subsection (b) of this section to such extent, under such
conditions, and for such uses as the Administrator may specify if the
Administrator determines that such sale or use is not inconsistent with
the purposes of this subchapter and will not have unreasonable adverse
effects on the environment. The Administrator shall publish in the
Federal Register, at least 30 days prior to the expiration of such five-
year period, notice that the registration will be canceled if the
registrant or other interested person with the concurrence of the
registrant does not request that the registration be continued in
effect.''
Subsec. (b). Pub. L. 104-170, Sec. 233, inserted ``When a public
health use is affected, the Secretary of Health and Human Services
should provide available benefits and use information, or an analysis
thereof, in accordance with the procedures followed and subject to the
same conditions as the Secretary of Agriculture in the case of
agricultural pesticides.'' before ``The proposed action shall become
final''.
Subsec. (c)(1). Pub. L. 104-170, Sec. 102(a), amended second
sentence generally. Prior to amendment, second sentence read as follows:
``No order of suspension may be issued unless the Administrator has
issued or at the same time issues notice of the Administrator's
intention to cancel the registration or change the classification of the
pesticide.''
Subsec. (c)(3). Pub. L. 104-170, Sec. 102(b), inserted after first
sentence ``The Administrator may issue an emergency order under this
paragraph before issuing a notice of intention to cancel the
registration or change the classification of the pesticide under
subsection (b) of this section and the Administrator shall proceed to
issue the notice under subsection (b) of this section within 90 days of
issuing an emergency order. If the Administrator does not issue a notice
under subsection (b) of this section within 90 days of issuing an
emergency order, the emergency order shall expire.'' and substituted
``In the case of an emergency order'' for ``In that case''.
Subsec. (f)(1)(C)(ii). Pub. L. 104-170, Sec. 210(g)(1), substituted
``180-day'' for ``90-day'' in two places.
Subsec. (f)(3)(A). Pub. L. 104-170, Sec. 210(g)(2), substituted
``180-day'' for ``90-day''.
Subsec. (f)(4). Pub. L. 104-170, Sec. 210(h), added par. (4).
1991--Subsec. (a)(1). Pub. L. 102-237, Sec. 1006(b)(1), substituted
``the Administrator'' for ``he'' before ``may specify'' and before
``determines''.
Subsec. (a)(2). Pub. L. 102-237, Sec. 1006(b)(3)(C), substituted
``the registrant'' for ``he'' before ``shall''.
Subsec. (b). Pub. L. 102-237, Sec. 1006(b)(1), (2), substituted
``the Administrator's'' for ``his'' in introductory provisions and par.
(1), and ``the Administrator'' for ``he'' before ``shall publish'' in
last sentence.
Subsec. (c)(1). Pub. L. 102-237, Sec. 1006(b)(1), (2), substituted
``the Administrator'' for ``he'' before ``may'' and ``the
Administrator's'' for ``his'' before ``intention''.
Subsec. (c)(3). Pub. L. 102-237, Sec. 1006(b)(1), (3)(D),
substituted ``the Administrator'' for ``he'' before ``may'' and ``the
Administrator'' for ``him'' after ``permit''.
Subsec. (d). Pub. L. 102-237, Sec. 1006(b)(2), (3)(E), in
penultimate sentence substituted ``the Administrator's'' for ``his'' and
``the Administrator'' for ``him'' before ``and issue''.
Subsec. (f)(3)(B). Pub. L. 102-237, Sec. 1006(a)(5), substituted
``adverse effect'' for ``adverse affect''.
1990--Subsec. (f)(1). Pub. L. 101-624, Sec. 1494(1), amended par.
(1) generally. Prior to amendment, par. (1) read as follows: ``A
registrant at any time may request that any of its pesticide
registrations be canceled or be amended to delete one or more uses.
Before acting on such request, the Administrator shall publish in the
Federal Register a notice of the receipt of the request. Thereafter, the
Administrator may approve such a request.''
Subsec. (f)(3). Pub. L. 101-624, Sec. 1494(2), added par. (3).
1988--Subsec. (a)(1). Pub. L. 100-532, Sec. 801(e)(1), substituted
``effect. The Administrator'' for ``effect: Provided, That the
Administrator''.
Subsec. (c). Pub. L. 100-532, Sec. 801(e)(2)-(4), in par. (1)
directed that undesignated paragraph beginning ``Except as provided'' be
run into sentence ending ``of the pesticide.'' and substituted ``before
the Administrator'' for ``before the Agency'', in par. (2) substituted
``submitted to the Administrator'' for ``submitted to the Agency'' and
``and the Administrator'' for ``and the Agency'', and in par. (3)
substituted ``(A)'' for ``(i)'', ``and the Administrator'' for ``and the
Agency'', and ``(B)'' for ``(ii)''.
Subsec. (e). Pub. L. 100-532, Sec. 801(e)(5), (6), in par. (1),
substituted ``met. The Administrator'' for ``met: Provided, That the
Administrator'', and in par. (2), substituted ``section. The only'' for
``section: Provided, That the only''.
Subsec. (f). Pub. L. 100-532, Sec. 201, added subsec. (f). Former
subsec. (f) redesignated (h).
Subsec. (f)(2). Pub. L. 100-532, Sec. 801(q)(2)(B), made a technical
amendment to the reference to section 136a-1 of this title to reflect
the renumbering of the corresponding section of the original act.
Subsec. (g). Pub. L. 100-532, Sec. 404, added subsec. (g).
Subsec. (h). Pub. L. 100-532, Sec. 201, redesignated former subsec.
(f) as (h).
1984--Subsec. (c)(4). Pub. L. 98-620 struck out provisions requiring
petitions to review orders on the issue of suspension to be advanced on
the docket of the court of appeals.
1978--Subsec. (b). Pub. L. 95-396, Sec. 11, required the
Administrator, in taking any final action under subsec. (b), to consider
restricting a pesticide's use or uses as an alternative to cancellation
and to fully explain the reasons for the restrictions.
Subsec. (c)(2). Pub. L. 95-251 substituted ``administrative law
judge'' for ``hearing examiner''.
Subsecs. (e), (f). Pub. L. 95-396, Sec. 12, added subsec. (e) and
redesignated former subsec. (e) as (f).
1975--Subsec. (b). Pub. L. 94-140 established criteria which
Administrator must use in determining the issuance of a suspension of
registration notice and the time periods relating to such notice, set
forth required procedures to be followed by Administrator prior to
publication of such notice, required procedures when the Secretary
elects to comment or fails to comment on suspension notice, waiver or
modification of time periods in specified required procedures, required
procedures for waiver of notice and consent by Secretary for suspension
of registration, and established criteria for Secretary taking any final
action.
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-532 effective on expiration of 60 days
after Oct. 25, 1988, see section 901 of Pub. L. 100-532, set out as a
note under section 136 of this title.
Effective Date of 1984 Amendment
Amendment by Pub. L. 98-620 not applicable to cases pending on Nov.
8, 1984, see section 403 of Pub. L. 98-620, set out as an Effective Date
note under section 1657 of Title 28, Judiciary and Judicial Procedure.
Effective Date
For effective date of section, see section 4 of Pub. L. 92-516, set
out as a note under section 136 of this title.
Section Referred to in Other Sections
This section is referred to in sections 136a, 136a-1, 136m, 136o,
136w of this title.
