7 U.S.C. § 136j — Unlawful acts

Page 255 TITLE 7—AGRICULTURE § 136j (1) in the case of the first offense, be subject to a fine of not more than $500; and (2) in the case of subsequent offenses, be sub- ject to a fine of not less than $1,000 for each violation, except that the penalty shall be less than $1,000 if the Secretary determines that the person made a good faith effort to comply with such subsection. (e) Federal or State provisions The requirements of this section shall not af- fect provisions of other Federal or State laws. (f) Surveys and reports The Secretary of Agriculture and the Adminis- trator of the Environmental Protection Agency, shall survey the records maintained under sub- section (a) to develop and maintain a data base that is sufficient to enable the Secretary and the Administrator to publish annual comprehen- sive reports concerning agricultural and non- agricultural pesticide use. The Secretary and Administrator shall enter into a memorandum of understanding to define their respective re- sponsibilities under this subsection in order to avoid duplication of effort. Such reports shall be transmitted to Congress not later than April 1 of each year. (g) Regulations The Secretary of Agriculture and the Adminis- trator of the Environmental Protection Agency shall promulgate regulations on their respective areas of responsibility implementing this sec- tion within 180 days after November 28, 1990. (Pub. L. 101–624, title XIV, § 1491, Nov. 28, 1990, 104 Stat. 3627; Pub. L. 102–237, title X, § 1006(d), Dec. 13, 1991, 105 Stat. 1896.) Editorial Notes CODIFICATION Section was enacted as part of the Conservation Pro- gram Improvements Act, and also as part of the Food, Agriculture, Conservation, and Trade Act of 1990, and not as part of the Federal Insecticide, Fungicide, and Rodenticide Act which comprises this subchapter. AMENDMENTS 1991—Subsec. (a)(1). Pub. L. 102–237, § 1006(d)(1), in- serted closing parenthesis after ‘‘section 136a(d)(1)(C) of this title’’. Subsec. (d)(1). Pub. L. 102–237, § 1006(d)(2), inserted ‘‘of’’ after ‘‘fine’’. § 136i–2. Collection of pesticide use information (a) In general The Secretary of Agriculture shall collect data of statewide or regional significance on the use of pesticides to control pests and diseases of major crops and crops of dietary significance, including fruits and vegetables. (b) Collection The data shall be collected by surveys of farm- ers or from other sources offering statistically reliable data. (c) Coordination The Secretary of Agriculture shall, as appro- priate, coordinate with the Administrator of the Environmental Protection Agency in the design of the surveys and make available to the Admin- istrator the aggregate results of the surveys to assist the Administrator. (Pub. L. 104–170, title III, § 302, Aug. 3, 1996, 110 Stat. 1512.) Editorial Notes CODIFICATION Section was enacted as part of the Food Quality Pro- tection Act of 1996, and not as part of the Federal Insec- ticide, Fungicide, and Rodenticide Act which comprises this subchapter. Statutory Notes and Related Subsidiaries PESTICIDE USE INFORMATION STUDY Pub. L. 104–170, title III, § 305, Aug. 3, 1996, 110 Stat. 1512, required the Secretary of Agriculture, in consulta- tion with the Administrator of the Environmental Pro- tection Agency, to prepare a report to Congress evalu- ating the current status and potential improvements in Federal pesticide use information gathering activities and to submit the report not later than 1 year following Aug. 3, 1996. § 136j. Unlawful acts (a) In general (1) Except as provided by subsection (b), it shall be unlawful for any person in any State to distribute or sell to any person— (A) any pesticide that is not registered under section 136a of this title or whose registration has been canceled or suspended, except to the extent that distribution or sale otherwise has been authorized by the Administrator under this subchapter; (B) any registered pesticide if any claims made for it as a part of its distribution or sale substantially differ from any claims made for it as a part of the statement required in con- nection with its registration under section 136a of this title; (C) any registered pesticide the composition of which differs at the time of its distribution or sale from its composition as described in the statement required in connection with its registration under section 136a of this title; (D) any pesticide which has not been colored or discolored pursuant to the provisions of sec- tion 136w(c)(5) of this title; (E) any pesticide which is adulterated or misbranded; or (F) any device which is misbranded. (2) It shall be unlawful for any person— (A) to detach, alter, deface, or destroy, in whole or in part, any labeling required under this subchapter; (B) to refuse to— (i) prepare, maintain, or submit any records required by or under section 136c, 136e, 136f, 136i, or 136q of this title; (ii) submit any reports required by or under section 136c, 136d, 136e, 136f, 136i, or 136q of this title; or (iii) allow any entry, inspection, copying of records, or sampling authorized by this subchapter; (C) to give a guaranty or undertaking pro- vided for in subsection (b) which is false in any particular, except that a person who receives Page 256 TITLE 7—AGRICULTURE § 136j and relies upon a guaranty authorized under subsection (b) may give a guaranty to the same effect, which guaranty shall contain, in addition to the person’s own name and ad- dress, the name and address of the person re- siding in the United States from whom the person received the guaranty or undertaking; (D) to use for the person’s own advantage or to reveal, other than to the Administrator, or officials or employees of the Environmental Protection Agency or other Federal executive agencies, or to the courts, or to physicians, pharmacists, and other qualified persons, needing such information for the performance of their duties, in accordance with such direc- tions as the Administrator may prescribe, any information acquired by authority of this sub- chapter which is confidential under this sub- chapter; (E) who is a registrant, wholesaler, dealer, retailer, or other distributor to advertise a product registered under this subchapter for restricted use without giving the classifica- tion of the product assigned to it under sec- tion 136a of this title; (F) to distribute or sell, or to make available for use, or to use, any registered pesticide classified for restricted use for some or all purposes other than in accordance with sec- tion 136a(d) of this title and any regulations thereunder, except that it shall not be unlaw- ful to sell, under regulations issued by the Ad- ministrator, a restricted use pesticide to a person who is not a certified applicator for ap- plication by a certified applicator; (G) to use any registered pesticide in a man- ner inconsistent with its labeling; (H) to use any pesticide which is under an experimental use permit contrary to the pro- visions of such permit; (I) to violate any order issued under section 136k of this title; (J) to violate any suspension order issued under section 136a(c)(2)(B), 136a–1, or 136d of this title; (K) to violate any cancellation order issued under this subchapter or to fail to submit a notice in accordance with section 136d(g) of this title; (L) who is a producer to violate any of the provisions of section 136e of this title; (M) to knowingly falsify all or part of any application for registration, application for experimental use permit, any information sub- mitted to the Administrator pursuant to sec- tion 136e of this title, any records required to be maintained pursuant to this subchapter, any report filed under this subchapter, or any information marked as confidential and sub- mitted to the Administrator under any provi- sion of this subchapter; (N) who is a registrant, wholesaler, dealer, retailer, or other distributor to fail to file re- ports required by this subchapter; (O) to add any substance to, or take any sub- stance from, any pesticide in a manner that may defeat the purpose of this subchapter; (P) to use any pesticide in tests on human beings unless such human beings (i) are fully informed of the nature and purposes of the test and of any physical and mental health consequences which are reasonably foreseeable therefrom, and (ii) freely volunteer to partici- pate in the test; (Q) to falsify all or part of any information relating to the testing of any pesticide (or any ingredient, metabolite, or degradation product thereof), including the nature of any protocol, procedure, substance, organism, or equipment used, observation made, or conclusion or opin- ion formed, submitted to the Administrator, or that the person knows will be furnished to the Administrator or will become a part of any records required to be maintained by this subchapter; (R) to submit to the Administrator data known to be false in support of a registration; or (S) to violate any regulation issued under section 136a(a) or 136q of this title. (b) Exemptions The penalties provided for a violation of para- graph (1) of subsection (a) shall not apply to— (1) any person who establishes a guaranty signed by, and containing the name and ad- dress of, the registrant or person residing in the United States from whom the person pur- chased or received in good faith the pesticide in the same unbroken package, to the effect that the pesticide was lawfully registered at the time of sale and delivery to the person, and that it complies with the other require- ments of this subchapter, and in such case the guarantor shall be subject to the penalties which would otherwise attach to the person holding the guaranty under the provisions of this subchapter; (2) any carrier while lawfully shipping, transporting, or delivering for shipment any pesticide or device, if such carrier upon re- quest of any officer or employee duly des- ignated by the Administrator shall permit such officer or employee to copy all of its records concerning such pesticide or device; (3) any public official while engaged in the performance of the official duties of the public official; (4) any person using or possessing any pes- ticide as provided by an experimental use per- mit in effect with respect to such pesticide and such use or possession; or (5) any person who ships a substance or mix- ture of substances being put through tests in which the purpose is only to determine its value for pesticide purposes or to determine its toxicity or other properties and from which the user does not expect to receive any benefit in pest control from its use. (June 25, 1947, ch. 125, § 12, as added Pub. L. 92–516, § 2, Oct. 21, 1972, 86 Stat. 989; amended Pub. L. 95–396, § 16, Sept. 30, 1978, 92 Stat. 832; Pub. L. 100–532, title VI, §§ 601(b)(2), 603, title VIII, § 801(g), (q)(2)(B), Oct. 25, 1988, 102 Stat. 2677, 2678, 2682, 2683; Pub. L. 102–237, title X, § 1006(a)(7), (b)(3)(L)–(O), Dec. 13, 1991, 105 Stat. 1895, 1896.) Editorial Notes PRIOR PROVISIONS A prior section 12 of act June 25, 1947, was classified to section 135j of this title prior to amendment of act June 25, 1947, by Pub. L. 92–516. Page 257 TITLE 7—AGRICULTURE § 136k AMENDMENTS 1991—Subsec. (a)(2)(C). Pub. L. 102–237, § 1006(b)(3)(L), substituted ‘‘the person’s’’ for ‘‘his’’ and ‘‘the person’’ for ‘‘he’’ before ‘‘received’’. Subsec. (a)(2)(D). Pub. L. 102–237, § 1006(b)(3)(M), sub- stituted ‘‘the person’s’’ for ‘‘his’’. Subsec. (a)(2)(F). Pub. L. 102–237, § 1006(a)(7)(A), sub- stituted ‘‘thereunder, except that it’’ for ‘‘thereunder. It’’. Subsec. (a)(2)(O). Pub. L. 102–237, § 1006(a)(7)(B), struck out ‘‘or’’ after semicolon at end. Subsec. (a)(2)(P). Pub. L. 102–237, § 1006(a)(7)(C), sub- stituted a semicolon for period at end. Subsec. (b)(1). Pub. L. 102–237, § 1006(b)(3)(N), sub- stituted ‘‘the person’’ for ‘‘he’’ after ‘‘from whom’’ and for ‘‘him’’ after ‘‘delivery to’’. Subsec. (b)(3). Pub. L. 102–237, § 1006(b)(3)(O), sub- stituted ‘‘the official duties of the public official’’ for ‘‘his official duties’’. 1988—Subsec. (a)(1). Pub. L. 100–532, § 601(b)(2)(A), in introductory provisions, substituted ‘‘distribute or sell to any person’’ for ‘‘distribute, sell, offer for sale, hold for sale, ship, deliver for shipment, or receive and (hav- ing so received) deliver or offer to deliver, to any per- son’’. Subsec. (a)(1)(A). Pub. L. 100–532, § 603(1), added sub- par. (A) and struck out former subpar. (A) which read as follows: ‘‘any pesticide which is not registered under section 136a of this title, except as provided by section 136d(a)(1) of this title;’’. Subsec. (a)(2)(B). Pub. L. 100–532, § 603(2)(A), added subpar. (B) and struck out former subpar. (B) which read as follows: ‘‘to refuse to keep any records required pursuant to section 136f of this title, or to refuse to allow inspection of any records or establishment pursu- ant to section 136f or 136g of this title, or to refuse to allow an officer or employee of the Environmental Pro- tection Agency to take a sample of any pesticide pursu- ant to section 136g of this title;’’. Subsec. (a)(2)(F). Pub. L. 100–532, §§ 601(b)(2)(B), 801(g), substituted ‘‘to distribute or sell, or to make’’ for ‘‘to make’’ and ‘‘thereunder, It’’ for ‘‘thereunder: Provided, That it’’. Subsec. (a)(2)(J). Pub. L. 100–532, § 801(q)(2)(B), made a technical amendment to the reference to section 136a–1 of this title to reflect the renumbering of the cor- responding section of the original act. Pub. L. 100–532, § 603(2)(B), added subpar. (J) and struck out former subpar. (J) which read as follows: ‘‘to violate any suspension order issued under section 136d of this title;’’. Subsec. (a)(2)(K). Pub. L. 100–532, § 603(2)(B), added subpar. (K) and struck out former subpar. (K) which read as follows: ‘‘to violate any cancellation of reg- istration of a pesticide under section 136d of this title, except as provided by section 136d(a)(1) of this title;’’. Subsec. (a)(2)(M). Pub. L. 100–532, § 603(2)(C), sub- stituted ‘‘this subchapter’’ for ‘‘section 136f of this title’’. Subsec. (a)(2)(Q), (R), (S). Pub. L. 100–532, § 603(2)(D), added subpars. (Q), (R), and (S). 1978—Subsec. (a)(2)(F). Pub. L. 95–396 inserted proviso exempting from prohibition the sale, under regulations issued by the Administrator, of a restricted use pes- ticide to a person who is not a certified applicator for application by a certified applicator. 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 For effective date of section, see section 4 of Pub. L. 92–516, set out as a note under section 136 of this title. § 136k. Stop sale, use, removal, and seizure (a) Stop sale, etc., orders Whenever any pesticide or device is found by the Administrator in any State and there is rea- son to believe on the basis of inspection or tests that such pesticide or device is in violation of any of the provisions of this subchapter, or that such pesticide or device has been or is intended to be distributed or sold in violation of any such provisions, or when the registration of the pes- ticide has been canceled by a final order or has been suspended, the Administrator may issue a written or printed ‘‘stop sale, use, or removal’’ order to any person who owns, controls, or has custody of such pesticide or device, and after re- ceipt of such order no person shall sell, use, or remove the pesticide or device described in the order except in accordance with the provisions of the order. (b) Seizure Any pesticide or device that is being trans- ported or, having been transported, remains unsold or in original unbroken packages, or that is sold or offered for sale in any State, or that is imported from a foreign country, shall be lia- ble to be proceeded against in any district court in the district where it is found and seized for confiscation by a process in rem for condemna- tion if— (1) in the case of a pesticide— (A) it is adulterated or misbranded; (B) it is not registered pursuant to the pro- visions of section 136a of this title; (C) its labeling fails to bear the informa- tion required by this subchapter; (D) it is not colored or discolored and such coloring or discoloring is required under this subchapter; or (E) any of the claims made for it or any of the directions for its use differ in substance from the representations made in connection with its registration; (2) in the case of a device, it is misbranded; or (3) in the case of a pesticide or device, when used in accordance with the requirements im- posed under this subchapter and as directed by the labeling, it nevertheless causes unreason- able adverse effects on the environment. In the case of a plant regulator, defoliant, or desiccant, used in accordance with the label claims and recommendations, physical or phys- iological effects on plants or parts thereof shall not be deemed to be injury, when such effects are the purpose for which the plant regulator, defoliant, or desiccant was applied. (c) Disposition after condemnation If the pesticide or device is condemned it shall, after entry of the decree, be disposed of by destruction or sale as the court may direct and the proceeds, if sold, less the court costs, shall be paid into the Treasury of the United States, but the pesticide or device shall not be sold con- trary to the provisions of this subchapter or the laws of the jurisdiction in which it is sold. On payment of the costs of the condemnation pro- ceedings and the execution and delivery of a good and sufficient bond conditioned that the