7 U.S.C. § 136m — Indemnities

Page 259 TITLE 7—AGRICULTURE § 136m sion, or failure of such person as well as that of the person employed. (June 25, 1947, ch. 125, § 14, as added Pub. L. 92–516, § 2, Oct. 21, 1972, 86 Stat. 992; amended Pub. L. 95–396, § 17, Sept. 30, 1978, 92 Stat. 832; Pub. L. 100–532, title VI, § 604, Oct. 25, 1988, 102 Stat. 2678; Pub. L. 102–237, title X, § 1006(a)(8), Dec. 13, 1991, 105 Stat. 1895.) Editorial Notes AMENDMENTS 1991—Subsec. (a)(2). Pub. L. 102–237 substituted ‘‘, except that’’ for ‘‘: Provided, That’’ and ‘‘uses’’ for ‘‘use’’. 1988—Subsec. (b)(1). Pub. L. 100–532 amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘Any registrant, commercial applicator, wholesaler, dealer, retailer, or other distributor who knowingly violates any provision of this subchapter shall be guilty of a misdemeanor and shall on conviction be fined not more than $25,000, or imprisoned for not more than one year, or both.’’ 1978—Subsec. (a)(2). Pub. L. 95–396, § 17(1), authorized assessment of a civil penalty of not more than $500 for a first offense and not more than $1,000 for each subse- quent offense against any applicator providing a serv- ice of controlling pests for violations of this sub- chapter. Subsec. (a)(3). Pub. L. 95–396, § 17(2), struck out provi- sion respecting certain considerations when deter- mining amount of penalty, now covered in par. (4). Subsec. (a)(4). Pub. L. 95–396, § 17(4), reenacted second sentence of par. (3) as par. (4) and authorized Adminis- trator to issue a warning in lieu of assessing a penalty. Former par. (4) redesignated (5). Subsec. (a)(5). Pub. L. 95–396, § 17(3), redesignated former par. (4) as (5). 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. § 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 registra- tion or that an emergency order of suspen- sion of a registration under section 136d(c)(3) of this title has been issued; (B) 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; 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 Adminis- trator finds that the person— (A) had knowledge of facts that, in them- selves, 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 in- demnification, the Administrator shall report to the Committee on Agriculture of the House of Representatives, the Committee on Agri- culture, 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 pay- ment 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 registra- tion or that an emergency order of suspen- sion of a registration under section 136d(c)(3) of this title has been issued; (B) 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; and (C) any person who, immediately before the notice to the registrant under subpara- graph (A), owned any quantity of the pes- ticide for purposes of applying or using the pesticide as an end user, rather than for pur- poses of distributing or selling it or further processing it for distribution or sale, suf- fered 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 quan- tity of the pesticide. (2) Dealers and distributors (A) Any registrant, wholesaler, dealer, or other distributor (hereinafter in this para- graph 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 suspen- sion or cancellation of the pesticide, reim- burse such person for the cost of first acquir- ing 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 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.