7 U.S.C. § 136n — Administrative procedure; judicial review

Page 260 TITLE 7—AGRICULTURE § 136n 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 registra- tion or that an emergency order of suspen- sion of a registration under section 136d(c)(3) of this title has been issued; (ii) the registration in question is sus- pended 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 re- imbursement 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 distribu- tion 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 Ad- ministrator 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 pro- vide such reimbursement; the person shall be entitled to an indemnity payment under this subsection for such quan- tity 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 para- graph by a seller who is unable to make a re- imbursement in accordance with this para- graph 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 ap- propriation 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 sec- tion 1304 of title 31. (c) Amount of payment (1) In general The amount of an indemnity payment under subsection (a) or (b) to any person shall be de- termined on the basis of the cost of the pes- ticide owned by the person (other than the cost of transportation, if any) immediately be- fore the issuance of the notice to the reg- istrant referred to in subsection (a)(1)(A), (b)(1)(A), or (b)(2)(B)(i), except that in no event shall an indemnity payment to any person ex- ceed 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 other- wise disposed of by the owner. (June 25, 1947, ch. 125, § 15, as added Pub. L. 92–516, § 2, Oct. 21, 1972, 86 Stat. 993; amended Pub. L. 100–532, title V, § 501(a), Oct. 25, 1988, 102 Stat. 2674.) Editorial Notes 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 pro- visions of former subsec. (b), with further amendment, as subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1988 AMENDMENT Pub. L. 100–532, title V, § 501(a), Oct. 25, 1988, 102 Stat. 2674, 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 Pub. L. 100–532, title V, § 501(b), Oct. 25, 1988, 102 Stat. 2676, provided that: ‘‘(1) SOURCE.—Any obligation of the Administrator to pay an indemnity arising under section 15 [this sec- tion], 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 administra- tive 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 re- garded as if it were made under that section for pur- poses of section 1304 of title 31, United States Code.’’ § 136n. Administrative procedure; judicial review (a) District court review Except as otherwise provided in this sub- chapter, the refusal of the Administrator to can- cel or suspend a registration or to change a clas- sification not following a hearing and other final actions of the Administrator not com- mitted to the discretion of the Administrator by law are judicially reviewable by the district courts of the United States. Page 261 TITLE 7—AGRICULTURE § 136o (b) Review by court of appeals In the case of actual controversy as to the va- lidity of any order issued by the Administrator following a public hearing, any person who will be adversely affected by such order and who had been a party to the proceedings may obtain judi- cial review by filing in the United States court of appeals for the circuit wherein such person resides or has a place of business, within 60 days after the entry of such order, a petition praying that the order be set aside in whole or in part. A copy of the petition shall be forthwith trans- mitted by the clerk of the court to the Adminis- trator or any officer designated by the Adminis- trator for that purpose, and thereupon the Ad- ministrator shall file in the court the record of the proceedings on which the Administrator based the Administrator’s order, as provided in section 2112 of title 28. Upon the filing of such petition the court shall have exclusive jurisdic- tion to affirm or set aside the order complained of in whole or in part. The court shall consider all evidence of record. The order of the Adminis- trator shall be sustained if it is supported by substantial evidence when considered on the record as a whole. The judgment of the court af- firming or setting aside, in whole or in part, any order under this section shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as pro- vided in section 1254 of title 28. The commence- ment of proceedings under this section shall not, unless specifically ordered by the court to the contrary, operate as a stay of an order. (c) Jurisdiction of district courts The district courts of the United States are vested with jurisdiction specifically to enforce, and to prevent and restrain violations of, this subchapter. (d) Notice of judgments The Administrator shall, by publication in such manner as the Administrator may pre- scribe, give notice of all judgments entered in actions instituted under the authority of this subchapter. (June 25, 1947, ch. 125, § 16, as added Pub. L. 92–516, § 2, Oct. 21, 1972, 86 Stat. 994; amended Pub. L. 98–620, title IV, § 402(4)(C), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 100–532, title VIII, § 801(i), Oct. 25, 1988, 102 Stat. 2682; Pub. L. 102–237, title X, § 1006(b)(1), (2), (3)(P), Dec. 13, 1991, 105 Stat. 1895, 1896.) Editorial Notes AMENDMENTS 1991—Subsec. (b). Pub. L. 102–237, § 1006(b)(1), (2), (3)(P), substituted ‘‘the Administrator’’ for ‘‘he’’ before ‘‘based’’, ‘‘the Administrator’s’’ for ‘‘his’’, and ‘‘the Ad- ministrator’’ for ‘‘him’’ after ‘‘designated by’’. Subsec. (d). Pub. L. 102–237, § 1006(b)(1), substituted ‘‘the Administrator’’ for ‘‘he’’ before ‘‘may’’. 1988—Subsec. (a). Pub. L. 100–532 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as fol- lows: ‘‘Except as is otherwise provided in this sub- chapter, Agency refusals to cancel or suspend registra- tions or change classifications not following a hearing and other final Agency actions not committed to Agen- cy discretion by law are judicially reviewable in the district courts.’’ 1984—Subsec. (b). Pub. L. 98–620 struck out provisions requiring the court to advance on the docket and expe- dite the disposition of all cases filed pursuant to this section. Statutory Notes and Related Subsidiaries 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. § 136o. Imports and exports (a) Pesticides and devices intended for export Notwithstanding any other provision of this subchapter, no pesticide or device or active in- gredient used in producing a pesticide intended solely for export to any foreign country shall be deemed in violation of this subchapter— (1) when prepared or packed according to the specifications or directions of the foreign pur- chaser, except that producers of such pes- ticides and devices and active ingredients used in producing pesticides shall be subject to sec- tions 136(p), 136(q)(1)(A), (C), (D), (E), (G), and (H), 136(q)(2)(A), (B), (C)(i) and (iii), and (D), 136e, and 136f of this title; and (2) in the case of any pesticide other than a pesticide registered under section 136a or sold under section 136d(a)(1) of this title, if, prior to export, the foreign purchaser has signed a statement acknowledging that the purchaser understands that such pesticide is not reg- istered for use in the United States and cannot be sold in the United States under this sub- chapter. A copy of that statement shall be transmitted to an appropriate official of the government of the importing country. (b) Cancellation notices furnished to foreign gov- ernments Whenever a registration, or a cancellation or suspension of the registration of a pesticide be- comes effective, or ceases to be effective, the Administrator shall transmit through the State Department notification thereof to the govern- ments of other countries and to appropriate international agencies. Such notification shall, upon request, include all information related to the cancellation or suspension of the registra- tion of the pesticide and information concerning other pesticides that are registered under sec- tion 136a of this title and that could be used in lieu of such pesticide. (c) Importation of pesticides and devices (1) In general The Secretary of the Treasury shall notify the Administrator of the arrival of pesticides and devices and shall deliver to the Adminis- trator, upon the Administrator’s request, sam-