7 U.S.C. § 136g — Inspection of establishments, etc

Page 250 TITLE 7—AGRICULTURE § 136g ner as provided in subsection (b) of this section’’ before period at end of first sentence. 1978—Subsec. (b). Pub. L. 95–396 required, in connec- tion with inspection of records and information, the presentation of credentials, written statement as to the reason for inspection, including statement of suspected violation, or an alternative but sufficient reason, and commencement and completion of inspection with rea- sonable promptness. 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. § 136g. Inspection of establishments, etc. (a) In general (1) For purposes of enforcing the provisions of this subchapter, officers or employees of the En- vironmental Protection Agency or of any State duly designated by the Administrator are au- thorized to enter at reasonable times (A) any es- tablishment or other place where pesticides or devices are held for distribution or sale for the purpose of inspecting and obtaining samples of any pesticides or devices, packaged, labeled, and released for shipment, and samples of any con- tainers or labeling for such pesticides or devices, or (B) any place where there is being held any pesticide the registration of which has been sus- pended or canceled for the purpose of deter- mining compliance with section 136q of this title. (2) Before undertaking such inspection, the of- ficers or employees must present to the owner, operator, or agent in charge of the establish- ment or other place where pesticides or devices are held for distribution or sale, appropriate cre- dentials and a written statement as to the rea- son for the inspection, including a statement as to whether a violation of the law is suspected. If no violation is suspected, an alternate and suffi- cient reason shall be given in writing. Each such inspection shall be commenced and completed with reasonable promptness. If the officer or em- ployee obtains any samples, prior to leaving the premises, the officer or employee shall give to the owner, operator, or agent in charge a receipt describing the samples obtained and, if re- quested, a portion of each such sample equal in volume or weight to the portion retained. If an analysis is made of such samples, a copy of the results of such analysis shall be furnished promptly to the owner, operator, or agent in charge. (b) Warrants For purposes of enforcing the provisions of this subchapter and upon a showing to an officer or court of competent jurisdiction that there is reason to believe that the provisions of this sub- chapter have been violated, officers or employ- ees duly designated by the Administrator are empowered to obtain and to execute warrants authorizing— (1) entry, inspection, and copying of records for purposes of this section or section 136f of this title; (2) inspection and reproduction of all records showing the quantity, date of shipment, and the name of consignor and consignee of any pesticide or device found in the establishment which is adulterated, misbranded, not reg- istered (in the case of a pesticide) or otherwise in violation of this subchapter and in the event of the inability of any person to produce records containing such information, all other records and information relating to such deliv- ery, movement, or holding of the pesticide or device; and (3) the seizure of any pesticide or device which is in violation of this subchapter. (c) Enforcement (1) Certification of facts to Attorney General The examination of pesticides or devices shall be made in the Environmental Protec- tion Agency or elsewhere as the Administrator may designate for the purpose of determining from such examinations whether they comply with the requirements of this subchapter. If it shall appear from any such examination that they fail to comply with the requirements of this subchapter, the Administrator shall cause notice to be given to the person against whom criminal or civil proceedings are con- templated. Any person so notified shall be given an opportunity to present the person’s views, either orally or in writing, with regard to such contemplated proceedings, and if in the opinion of the Administrator it appears that the provisions of this subchapter have been violated by such person, then the Admin- istrator shall certify the facts to the Attorney General, with a copy of the results of the anal- ysis or the examination of such pesticide for the institution of a criminal proceeding pursu- ant to section 136l(b) of this title or a civil proceeding under section 136l(a) of this title, when the Administrator determines that such action will be sufficient to effectuate the pur- poses of this subchapter. (2) Notice not required The notice of contemplated proceedings and opportunity to present views set forth in this subsection are not prerequisites to the institu- tion of any proceeding by the Attorney Gen- eral. (3) Warning notices Nothing in this subchapter shall be con- strued as requiring the Administrator to insti- tute proceedings for prosecution of minor vio- lations of this subchapter whenever the Ad- ministrator believes that the public interest will be adequately served by a suitable written notice of warning. (June 25, 1947, ch. 125, § 9, as added Pub. L. 92–516, § 2, Oct. 21, 1972, 86 Stat. 988; amended Pub. L. 100–532, title III, § 302, Oct. 25, 1988, 102 Stat. 2669; Pub. L. 102–237, title X, § 1006(b)(1), (3)(H), (I), Dec. 13, 1991, 105 Stat. 1895, 1896.) Editorial Notes PRIOR PROVISIONS A prior section 9 of act June 25, 1947, was classified to section 135g of this title prior to amendment of act June 25, 1947, by Pub. L. 92–516. Page 251 TITLE 7—AGRICULTURE § 136h AMENDMENTS 1991—Subsec. (a)(2). Pub. L. 102–237, § 1006(b)(3)(H), substituted ‘‘the officer or employee’’ for ‘‘he’’ before ‘‘shall’’ in fourth sentence. Subsec. (c)(1). Pub. L. 102–237, § 1006(b)(3)(I), sub- stituted ‘‘the person’s’’ for ‘‘his’’ in third sentence. Subsec. (c)(3). Pub. L. 102–237, § 1006(b)(1), substituted ‘‘the Administrator’’ for ‘‘he’’ before ‘‘believes’’. 1988—Subsec. (a). Pub. L. 100–532, § 302(a), substituted ‘‘(1) For purposes of’’ for ‘‘For purposes of’’, inserted ‘‘of the Environmental Protection Agency or of any State’’, substituted ‘‘at reasonable times (A)’’ for ‘‘at reasonable times,’’, added cl. (B), and substituted ‘‘(2) Before’’ for ‘‘Before’’. Subsec. (b)(1). Pub. L. 100–532, § 302(b), amended par. (1) generally, substituting ‘‘entry, inspection, and copy- ing of records for purposes of this section or section 136f of this title’’ for ‘‘entry for the purpose of this sec- tion’’. 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. § 136h. Protection of trade secrets and other in- formation (a) In general In submitting data required by this sub- chapter, the applicant may (1) clearly mark any portions thereof which in the applicant’s opin- ion are trade secrets or commercial or financial information and (2) submit such market mate- rial separately from other material required to be submitted under this subchapter. (b) Disclosure Notwithstanding any other provision of this subchapter and subject to the limitations in subsections (d) and (e) of this section, the Ad- ministrator shall not make public information which in the Administrator’s judgment contains or relates to trade secrets or commercial or fi- nancial information obtained from a person and privileged or confidential, except that, when necessary to carry out the provisions of this subchapter, information relating to formulas of products acquired by authorization of this sub- chapter may be revealed to any Federal agency consulted and may be revealed at a public hear- ing or in findings of fact issued by the Adminis- trator. (c) Disputes If the Administrator proposes to release for in- spection information which the applicant or reg- istrant believes to be protected from disclosure under subsection (b), the Administrator shall notify the applicant or registrant, in writing, by certified mail. The Administrator shall not thereafter make available for inspection such data until thirty days after receipt of the notice by the applicant or registrant. During this pe- riod, the applicant or registrant may institute an action in an appropriate district court for a declaratory judgment as to whether such infor- mation is subject to protection under subsection (b). (d) Limitations (1) All information concerning the objectives, methodology, results, or significance of any test or experiment performed on or with a registered or previously registered pesticide or its separate ingredients, impurities, or degradation products, and any information concerning the effects of such pesticide on any organism or the behavior of such pesticide in the environment, including, but not limited to, data on safety to fish and wildlife, humans and other mammals, plants, animals, and soil, and studies on persistence, translocation and fate in the environment, and metabolism, shall be available for disclosure to the public. The use of such data for any registra- tion purpose shall be governed by section 136a of this title. This paragraph does not authorize the disclosure of any information that— (A) discloses manufacturing or quality con- trol processes, (B) discloses the details of any methods for testing, detecting, or measuring the quantity of any deliberately added inert ingredient of a pesticide, or (C) discloses the identity or percentage quantity of any deliberately added inert ingre- dient of a pesticide, unless the Administrator has first determined that disclosure is necessary to protect against an unreasonable risk of injury to health or the environment. (2) Information concerning production, dis- tribution, sale, or inventories of a pesticide that is otherwise entitled to confidential treatment under subsection (b) of this section may be pub- licly disclosed in connection with a public pro- ceeding to determine whether a pesticide, or any ingredient of a pesticide, causes unreasonable adverse effects on health or the environment, if the Administrator determines that such disclo- sure is necessary in the public interest. (3) If the Administrator proposes to disclose information described in clause (A), (B), or (C) of paragraph (1) or in paragraph (2) of this sub- section, the Administrator shall notify by cer- tified mail the submitter of such information of the intent to release such information. The Ad- ministrator may not release such information, without the submitter’s consent, until thirty days after the submitter has been furnished such notice. Where the Administrator finds that dis- closure of information described in clause (A), (B), or (C) of paragraph (1) of this subsection is necessary to avoid or lessen an imminent and substantial risk of injury to the public health, the Administrator may set such shorter period of notice (but not less than ten days) and such method of notice as the Administrator finds ap- propriate. During such period the data sub- mitter may institute an action in an appro- priate district court to enjoin or limit the pro- posed disclosure. The court may enjoin disclo- sure, or limit the disclosure or the parties to whom disclosure shall be made, to the extent that— (A) in the case of information described in clause (A), (B), or (C) of paragraph (1) of this subsection, the proposed disclosure is not re- quired to protect against an unreasonable risk of injury to health or the environment; or