7 U.S.C. § 136h — Protection of trade secrets and other in-

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 Page 252 TITLE 7—AGRICULTURE § 136h (B) in the case of information described in paragraph (2) of this subsection, the public in- terest in availability of the information in the public proceeding does not outweigh the inter- ests in preserving the confidentiality of the in- formation. (e) Disclosure to contractors Information otherwise protected from disclo- sure to the public under subsection (b) of this section may be disclosed to contractors with the United States and employees of such contrac- tors if, in the opinion of the Administrator, such disclosure is necessary for the satisfactory per- formance by the contractor of a contract with the United States for the performance of work in connection with this subchapter and under such conditions as the Administrator may speci- fy. The Administrator shall require as a condi- tion to the disclosure of information under this subsection that the person receiving it take such security precautions respecting the infor- mation as the Administrator shall by regulation prescribe. (f) Penalty for disclosure by Federal employees (1) Any officer or employee of the United States or former officer or employee of the United States who, by virtue of such employ- ment or official position, has obtained posses- sion of, or has access to, material the disclosure of which is prohibited by subsection (b) of this section, and who, knowing that disclosure of such material is prohibited by such subsection, willfully discloses the material in any manner to any person not entitled to receive it, shall be fined not more than $10,000 or imprisoned for not more than one year, or both. Section 1905 of title 18 shall not apply with respect to the publishing, divulging, disclosure, or making known of, or making available, information reported or oth- erwise obtained under this subchapter. Nothing in this subchapter shall preempt any civil rem- edy under State or Federal law for wrongful dis- closure of trade secrets. (2) For the purposes of this section, any con- tractor with the United States who is furnished information as authorized by subsection (e) of this section, or any employee of any such con- tractor, shall be considered to be an employee of the United States. (g) Disclosure to foreign and multinational pes- ticide producers (1) The Administrator shall not knowingly dis- close information submitted by an applicant or registrant under this subchapter to any em- ployee or agent of any business or other entity engaged in the production, sale, or distribution of pesticides in countries other than the United States or in addition to the United States or to any other person who intends to deliver such data to such foreign or multinational business or entity unless the applicant or registrant has consented to such disclosure. The Administrator shall require an affirmation from any person who intends to inspect data that such person does not seek access to the data for purposes of delivering it or offering it for sale to any such business or entity or its agents or employees and will not purposefully deliver or negligently cause the data to be delivered to such business or entity or its agents or employees. Notwith- standing any other provision of this subsection, the Administrator may disclose information to any person in connection with a public pro- ceeding under law or regulation, subject to re- strictions on the availability of information contained elsewhere in this subchapter, which information is relevant to a determination by the Administrator with respect to whether a pesticide, or any ingredient of a pesticide, causes unreasonable adverse effects on health or the environment. (2) The Administrator shall maintain records of the names of persons to whom data are dis- closed under this subsection and the persons or organizations they represent and shall inform the applicant or registrant of the names and af- filiations of such persons. (3) Section 1001 of title 18 shall apply to any affirmation made under paragraph (1) of this subsection. (June 25, 1947, ch. 125, § 10, as added Pub. L. 92–516, § 2, Oct. 21, 1972, 86 Stat. 989; amended Pub. L. 95–396, § 15, Sept. 30, 1978, 92 Stat. 829; Pub. L. 98–620, title IV, § 402(4)(B), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 100–532, title VIII, § 801(f), Oct. 25, 1988, 102 Stat. 2682; Pub. L. 102–237, title X, § 1006(b)(1), (2), (3)(J), Dec. 13, 1991, 105 Stat. 1895, 1896.) Editorial Notes PRIOR PROVISIONS A prior section 10 of act June 25, 1947, was classified to section 135h of this title prior to amendment of act June 25, 1947, by Pub. L. 92–516. AMENDMENTS 1991—Subsec. (a). Pub. L. 102–237, § 1006(b)(3)(J), sub- stituted ‘‘the applicant’s’’ for ‘‘his’’. Subsec. (b). Pub. L. 102–237, § 1006(b)(2), substituted ‘‘the Administrator’s’’ for ‘‘his’’. Subsec. (c). Pub. L. 102–237, § 1006(b)(1), substituted ‘‘the Administrator’’ for ‘‘he’’ before ‘‘shall notify’’. 1988—Subsec. (d). Pub. L. 100–532 in par. (1), sub- stituted ‘‘public. The use’’ for ‘‘public: Provided, That the use’’ and ‘‘title. This paragraph’’ for ‘‘title: Pro- vided further, That this paragraph’’, and in par. (3), ‘‘no- tice. Where’’ for ‘‘notice: Provided, That where’’. 1984—Subsec. (d)(3). Pub. L. 98–620 struck out provi- sions requiring the court to give expedited consider- ation to actions involving injunctions or limitations of proposed disclosure. 1978—Subsec. (b). Pub. L. 95–396, § 15(1), made disclo- sure of information by the Administrator subject to the limitations of subsecs. (d) and (e) of this section. Subsecs. (d) to (g). Pub. L. 95–396, § 15(2), added sub- secs. (d) to (g). 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. Page 253 TITLE 7—AGRICULTURE § 136i § 136i. Use of restricted use pesticides; applica- tors (a) Certification procedure (1) Federal certification In any State for which a State plan for ap- plicator certification has not been approved by the Administrator, the Administrator, in con- sultation with the Governor of such State, shall conduct a program for the certification of applicators of pesticides. Such program shall conform to the requirements imposed upon the States under the provisions of sub- section (a)(2) of this section and shall not re- quire private applicators to take any examina- tion to establish competency in the use of pes- ticides. Prior to the implementation of the program, the Administrator shall publish in the Federal Register for review and comment a summary of the Federal plan for applicator certification and shall make generally avail- able within the State copies of the plan. The Administrator shall hold public hearings at one or more locations within the State if so requested by the Governor of such State dur- ing the thirty days following publication of the Federal Register notice inviting comment on the Federal plan. The hearings shall be held within thirty days following receipt of the re- quest from the Governor. In any State in which the Administrator conducts a certifi- cation program, the Administrator may re- quire any person engaging in the commercial application, sale, offering for sale, holding for sale, or distribution of any pesticide one or more uses of which have been classified for re- stricted use to maintain such records and sub- mit such reports concerning the commercial application, sale, or distribution of such pes- ticide as the Administrator may by regulation prescribe. Subject to paragraph (2), the Ad- ministrator shall prescribe standards for the certification of applicators of pesticides. Such standards shall provide that to be certified, an individual must be determined to be com- petent with respect to the use and handling of the pesticides, or to the use and handling of the pesticide or class of pesticides covered by such individual’s certification. The certifi- cation standard for a private applicator shall, under a State plan submitted for approval, be deemed fulfilled by the applicator completing a certification form. The Administrator shall further assure that such form contains ade- quate information and affirmations to carry out the intent of this subchapter, and may in- clude in the form an affirmation that the pri- vate applicator has completed a training pro- gram approved by the Administrator so long as the program does not require the private applicator to take, pursuant to a requirement prescribed by the Administrator, any exam- ination to establish competency in the use of the pesticide. The Administrator may require any pesticide dealer participating in a certifi- cation program to be licensed under a State li- censing program approved by the Adminis- trator. (2) State certification If any State, at any time, desires to certify applicators of pesticides, the Governor of such State shall submit a State plan for such pur- pose. The Administrator shall approve the plan submitted by any State, or any modifica- tion thereof, if such plan in the Administra- tor’s judgment— (A) designates a State agency as the agen- cy responsible for administering the plan throughout the State; (B) contains satisfactory assurances that such agency has or will have the legal au- thority and qualified personnel necessary to carry out the plan; (C) gives satisfactory assurances that the State will devote adequate funds to the ad- ministration of the plan; (D) provides that the State agency will make such reports to the Administrator in such form and containing such information as the Administrator may from time to time require; and (E) contains satisfactory assurances that State standards for the certification of ap- plicators of pesticides conform with those standards prescribed by the Administrator under paragraph (1). Any State certification program under this section shall be maintained in accordance with the State plan approved under this sec- tion. (b) State plans If the Administrator rejects a plan submitted under subsection (a)(2), the Administrator shall afford the State submitting the plan due notice and opportunity for hearing before so doing. If the Administrator approves a plan submitted under subsection (a)(2), then such State shall certify applicators of pesticides with respect to such State. Whenever the Administrator deter- mines that a State is not administering the cer- tification program in accordance with the plan approved under this section, the Administrator shall so notify the State and provide for a hear- ing at the request of the State, and, if appro- priate corrective action is not taken within a reasonable time, not to exceed ninety days, the Administrator shall withdraw approval of such plan. (c) Instruction in integrated pest management techniques Standards prescribed by the Administrator for the certification of applicators of pesticides under subsection (a), and State plans submitted to the Administrator under subsection (a), shall include provisions for making instructional ma- terials concerning integrated pest management techniques available to individuals at their re- quest in accordance with the provisions of sec- tion 136u(c) of this title, but such plans may not require that any individual receive instruction concerning such techniques or to be shown to be competent with respect to the use of such tech- niques. The Administrator and States imple- menting such plans shall provide that all inter- ested individuals are notified on the availability of such instructional materials. (d) In general No regulations prescribed by the Adminis- trator for carrying out the provisions of this subchapter shall require any private applicator