§ 136m. — Indemnities.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 7USC136m]
TITLE 7--AGRICULTURE
CHAPTER 6--INSECTICIDES AND ENVIRONMENTAL PESTICIDE CONTROL
SUBCHAPTER II--ENVIRONMENTAL PESTICIDE CONTROL
Sec. 136m. Indemnities
(a) General indemnification
(1) In general
Except as otherwise provided in this section, if--
(A) the Administrator notifies a registrant under section
136d(c)(1) of this title that the Administrator intends to
suspend a registration or that an emergency order of suspension
of a registration under section 136d(c)(3) of this title has
been issued;
(B) the registration in question is suspended under section
136d(c) of this title, and thereafter is canceled under section
136d(b), 136d(d), or 136d(f) of this title; and
(C) any person who owned any quantity of the pesticide
immediately before the notice to the registrant under
subparagraph (A) suffered losses by reason of suspension or
cancellation of the registration;
the Administrator shall make an indemnity payment to the person.
(2) Exception
Paragraph (1) shall not apply if the Administrator finds that
the person--
(A) had knowledge of facts that, in themselves, would have
shown that the pesticide did not meet the requirements of
section 136a(c)(5) of this title for registration; and
(B) continued thereafter to produce the pesticide without
giving timely notice of such facts to the Administrator.
(3) Report
If the Administrator takes an action under paragraph (1) that
requires the payment of indemnification, the Administrator shall
report to the Committee on Agriculture of the House of
Representatives, the Committee on Agriculture, Nutrition, and
Forestry of the Senate, and the Committees on Appropriations of the
House of Representatives and the Senate on--
(A) the action taken that requires the payment of
indemnification;
(B) the reasons for taking the action;
(C) the estimated cost of the payment; and
(D) a request for the appropriation of funds for the
payment.
(4) Appropriation
The Administrator may not make a payment of indemnification
under paragraph (1) unless a specific line item appropriation of
funds has been made in advance for the payment.
(b) Indemnification of end users, dealers, and distributors
(1) End users
If--
(A) the Administrator notifies a registrant under section
136d(c)(1) of this title that the Administrator intends to
suspend a registration or that an emergency order of suspension
of a registration under section 136d(c)(3) of this title has
been issued;
(B) the registration in question is suspended under section
136d(c) of this title, and thereafter is canceled under section
136d(b), 136d(d), or 136d(f) of this title; and
(C) any person who, immediately before the notice to the
registrant under subparagraph (A), owned any quantity of the
pesticide for purposes of applying or using the pesticide as an
end user, rather than for purposes of distributing or selling it
or further processing it for distribution or sale, suffered a
loss by reason of the suspension or cancellation of the
pesticide;
the person shall be entitled to an indemnity payment under this
subsection for such quantity of the pesticide.
(2) Dealers and distributors
(A) Any registrant, wholesaler, dealer, or other distributor
(hereinafter in this paragraph referred to as a ``seller'') of a
registered pesticide who distributes or sells the pesticide directly
to any person not described as an end user in paragraph (1)(C)
shall, with respect to any quantity of the pesticide that such
person cannot use or resell as a result of the suspension or
cancellation of the pesticide, reimburse such person for the cost of
first acquiring the pesticide from the seller (other than the cost
of transportation, if any), unless the seller provided to the person
at the time of distribution or sale a notice, in writing, that the
pesticide is not subject to reimbursement by the seller.
(B) If--
(i) the Administrator notifies a registrant under section
136d(c)(1) of this title that the Administrator intends to
suspend a registration or that an emergency order of suspension
of a registration under section 136d(c)(3) of this title has
been issued;
(ii) the registration in question is suspended under section
136d(c) of this title, and thereafter is canceled under section
136d(b), 136d(d), or 136d(f) of this title;
(iii) any person who, immediately before the notice to the
registrant under clause (i)--
(I) had not been notified in writing by the seller, as
provided under subparagraph (A), that any quantity of the
pesticide owned by such person is not subject to
reimbursement by the seller in the event of suspension or
cancellation of the pesticide; and
(II) owned any quantity of the pesticide for purposes
of--
(aa) distributing or selling it; or
(bb) further processing it for distribution or sale
directly to an end user;
suffered a loss by reason of the suspension or cancellation of
the pesticide; and
(iv) the Administrator determines on the basis of a claim of
loss submitted to the Administrator by the person, that the
seller--
(I) did not provide the notice specified in subparagraph
(A) to such person; and
(II) is and will continue to be unable to provide
reimbursement to such person, as provided under subparagraph
(A), for the loss referred to in clause (iii), as a result
of the insolvency or bankruptcy of the seller and the
seller's resulting inability to provide such reimbursement;
the person shall be entitled to an indemnity payment under this
subsection for such quantity of the pesticide.
(C) If an indemnity payment is made by the United States under
this paragraph, the United States shall be subrogated to any right
that would otherwise be held under this paragraph by a seller who is
unable to make a reimbursement in accordance with this paragraph
with regard to reimbursements that otherwise would have been made by
the seller.
(3) Source
Any payment required to be made under paragraph (1) or (2) shall
be made from the appropriation provided under section 1304 of title
31.
(4) Administrative settlement
An administrative settlement of a claim for such indemnity may
be made in accordance with the third paragraph of section 2414 of
title 28 and shall be regarded as if it were made under that section
for purposes of section 1304 of title 31.
(c) Amount of payment
(1) In general
The amount of an indemnity payment under subsection (a) or (b)
of this section to any person shall be determined on the basis of
the cost of the pesticide owned by the person (other than the cost
of transportation, if any) immediately before the issuance of the
notice to the registrant referred to in subsection (a)(1)(A),
(b)(1)(A), or (b)(2)(B)(i) of this section, except that in no event
shall an indemnity payment to any person exceed the fair market
value of the pesticide owned by the person immediately before the
issuance of the notice.
(2) Special rule
Notwithstanding any other provision of this subchapter, the
Administrator may provide a reasonable time for use or other
disposal of the pesticide. In determining the quantity of any
pesticide for which indemnity shall be paid under this section,
proper adjustment shall be made for any pesticide used or otherwise
disposed of by the owner.
(June 25, 1947, ch. 125, Sec. 15, as added Pub. L. 92-516, Sec. 2, Oct.
21, 1972, 86 Stat. 993; amended Pub. L. 100-532, title V, Sec. 501(a),
Oct. 25, 1988, 102 Stat. 2674.)
Amendments
1988--Pub. L. 100-532 amended section generally, in subsec. (a),
substituting provisions relating to general indemnification for
provisions relating to requirements for payment, adding subsec. (b), and
redesignating provisions of former subsec. (b), with further amendment,
as subsec. (c).
Effective Date of 1988 Amendment
Section 501(a) of Pub. L. 100-532 provided that amendment made by
Pub. L. 100-532 is effective 180 days after Oct. 25, 1988.
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.
Interim Payments
Section 501(b) of Pub. L. 100-532 provided that:
``(1) Source.--Any obligation of the Administrator to pay an
indemnity arising under section 15 [this section], as it existed prior
to the effective date of the amendment made by this section [see
Effective Date of 1988 Amendment note above], shall be made from the
appropriation provided under section 1304 of title 31, United States
Code.
``(2) Administrative settlement.--An administrative settlement of a
claim for such indemnity may be made in accordance with the third
paragraph of section 2414 of title 28, United States Code, and shall be
regarded as if it were made under that section for purposes of section
1304 of title 31, United States Code.''
Section Referred to in Other Sections
This section is referred to in section 136a of this title.
