§ 136w TITLE 7—AGRICULTURE Page 252

Pub. L. 95–396, §22, Sept. 30, 1978, 92 Stat. 835;

Pub. L. 100–532, title VIII, §801(m), Oct. 25, 1988,

102 Stat. 2682.)

REFERENCES IN TEXT

The Federal Food, Drug, and Cosmetic Act, referred

to in subsec. (c)(3), is act June 25, 1938, ch. 675, 52 Stat.

1040, as amended, which is classified generally to chapter 9 (§301 et seq.) of Title 21, Food and Drugs. For complete classification of this Act to the Code, see section

301 of Title 21 and Tables.

AMENDMENTS

1988—Pub. L. 100–532, §801(m), inserted headings for

subsecs. (a) to (c) and realigned margins of pars. (1) to

(4) of subsec. (c).

1978—Subsec. (a). Pub. L. 95–396 inserted ‘‘federally

registered’’ before ‘‘pesticide or device’’.

Subsec. (b). Pub. L. 95–396 substituted ‘‘labeling or

packaging’’ and ‘‘required under’’ for ‘‘labeling and

packaging’’ and ‘‘required pursuant to’’, respectively.

Subsec. (c)(1). Pub. L. 95–396 incorporated existing

text in provisions designated par. (1) and substituted

‘‘registration for additional uses of federally registered

pesticides’’ for ‘‘registration for pesticides’’.

Subsec. (c)(2). Pub. L. 95–396 incorporated existing

text in provisions designated par. (2), conditioned disapproval of registration on communication of intention

to disapprove and reasons for disapproval and provision

for time to respond, and restricted authority of Administrator to prohibit or disapprove a State registration.

Subsec. (c)(3). Pub. L. 95–396 added par. (3).

Subsec. (c)(4). Pub. L. 95–396 incorporated existing

text in provisions designated par. (4) and authorized

suspension of registration authority of the State based

on findings of inability or failure to exercise adequate

controls following an indication of intention to suspend

and reasons for the suspension and provision for time

to respond.

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.

§ 136w. Authority of Administrator

(a) In general

(1) Regulations

The Administrator is authorized, in accordance with the procedure described in paragraph (2), to prescribe regulations to carry out

the provisions of this subchapter. Such regulations shall take into account the difference in

concept and usage between various classes of

pesticides, including public health pesticides,

and differences in environmental risk and the

appropriate data for evaluating such risk between agricultural, nonagricultural, and public health pesticides.

(2) Procedure

(A) Proposed regulations

At least 60 days prior to signing any proposed regulation for publication in the Federal Register, the Administrator shall provide the Secretary of Agriculture with a

copy of such regulation. If the Secretary

comments in writing to the Administrator

regarding any such regulation within 30 days

after receiving it, the Administrator shall

publish in the Federal Register (with the

proposed regulation) the comments of the

Secretary and the response of the Administrator with regard to the Secretary’s comments. If the Secretary does not comment in

writing to the Administrator regarding the

regulation within 30 days after receiving it,

the Administrator may sign such regulation

for publication in the Federal Register any

time after such 30-day period notwithstanding the foregoing 60-day time requirement.

(B) Final regulations

At least 30 days prior to signing any regulation in final form for publication in the

Federal Register, the Administrator shall

provide the Secretary of Agriculture with a

copy of such regulation. If the Secretary

comments in writing to the Administrator

regarding any such final regulation within 15

days after receiving it, the Administrator

shall publish in the Federal Register (with

the final regulation) the comments of the

Secretary, if requested by the Secretary, and

the response of the Administrator concerning the Secretary’s comments. If the Secretary does not comment in writing to the

Administrator regarding the regulation

within 15 days after receiving it, the Administrator may sign such regulation for publication in the Federal Register at any time

after such 15-day period notwithstanding the

foregoing 30-day time requirement. In taking any final action under this subsection,

the Administrator shall include among those

factors to be taken into account the effect of

the regulation on production and prices of

agricultural commodities, retail food prices,

and otherwise on the agricultural economy,

and the Administrator shall publish in the

Federal Register an analysis of such effect.

(C) Time requirements

The time requirements imposed by subparagraphs (A) and (B) may be waived or

modified to the extent agreed upon by the

Administrator and the Secretary.

(D) Publication in the Federal Register

The Administrator shall, simultaneously

with any notification to the Secretary of

Agriculture under this paragraph prior to

the issuance of any proposed or final regulation, publish such notification in the Federal Register.

(3) Congressional committees

At such time as the Administrator is required under paragraph (2) of this subsection

to provide the Secretary of Agriculture with a

copy of proposed regulations and a copy of the

final form of regulations, the Administrator

shall also furnish a copy of such regulations to

the Committee on Agriculture of the House of

Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate.

(4) Congressional review of regulations

Simultaneously with the promulgation of

any rule or regulation under this subchapter,

the Administrator shall transmit a copy

thereof to the Secretary of the Senate and the

Clerk of the House of Representatives. The
Page 253 TITLE 7—AGRICULTURE § 136w

rule or regulation shall not become effective

until the passage of 60 calendar days after the

rule or regulation is so transmitted.

(b) Exemption of pesticides

The Administrator may exempt from the requirements of this subchapter by regulation any

pesticide which the Administrator determines

either (1) to be adequately regulated by another

Federal agency, or (2) to be of a character which

is unnecessary to be subject to this subchapter

in order to carry out the purposes of this subchapter.

(c) Other authority

The Administrator, after notice and opportunity for hearing, is authorized—

(1) to declare a pest any form of plant or animal life (other than man and other than bacteria, virus, and other micro-organisms on or

in living man or other living animals) which is

injurious to health or the environment;

(2) to determine any pesticide which contains any substance or substances in quantities highly toxic to man;

(3) to establish standards (which shall be

consistent with those established under the

authority of the Poison Prevention Packaging

Act (Public Law 91–601) [15 U.S.C. 1471 et seq.])

with respect to the package, container, or

wrapping in which a pesticide or device is enclosed for use or consumption, in order to protect children and adults from serious injury or

illness resulting from accidental ingestion or

contact with pesticides or devices regulated by

this subchapter as well as to accomplish the

other purposes of this subchapter;

(4) to specify those classes of devices which

shall be subject to any provision of section

136(q)(1) or section 136e of this title upon the

Administrator’s determination that application of such provision is necessary to effectuate the purposes of this subchapter;

(5) to prescribe regulations requiring any

pesticide to be colored or discolored if the Administrator determines that such requirement

is feasible and is necessary for the protection

of health and the environment; and

(6) to determine and establish suitable

names to be used in the ingredient statement.

(d) Scientific advisory panel

(1) In general

The Administrator shall submit to an advisory panel for comment as to the impact on

health and the environment of the action proposed in notices of intent issued under section

136d(b) of this title and of the proposed and

final form of regulations issued under subsection (a) of this section within the same

time periods as provided for the comments of

the Secretary of Agriculture under such section 136d(b) and subsection (a) of this section.

The time requirements for notices of intent

and proposed and final forms of regulation

may not be modified or waived unless in addition to meeting the requirements of section

136d(b) of this title or subsection (a) of this

section, as applicable, the advisory panel has

failed to comment on the proposed action

within the prescribed time period or has

agreed to the modification or waiver. The Administrator shall also solicit from the advisory panel comments, evaluations, and recommendations for operating guidelines to improve the effectiveness and quality of scientific analyses made by personnel of the Environmental Protection Agency that lead to

decisions by the Administrator in carrying out

the provisions of this subchapter. The comments, evaluations, and recommendations of

the advisory panel submitted under this subsection and the response of the Administrator

shall be published in the Federal Register in

the same manner as provided for publication

of the comments of the Secretary of Agriculture under such sections. The chairman of

the advisory panel, after consultation with the

Administrator, may create temporary subpanels on specific projects to assist the full advisory panel in expediting and preparing its

evaluations, comments, and recommendations.

The subpanels may be composed of scientists

other than members of the advisory panel, as

deemed necessary for the purpose of evaluating scientific studies relied upon by the Administrator with respect to proposed action.

Such additional scientists shall be selected by

the advisory panel. The panel referred to in

this subsection shall consist of 7 members appointed by the Administrator from a list of 12

nominees, 6 nominated by the National Institutes of Health and 6 by the National Science

Foundation, utilizing a system of staggered

terms of appointment. Members of the panel

shall be selected on the basis of their professional qualifications to assess the effects of

the impact of pesticides on health and the environment. To the extent feasible to insure

multidisciplinary representation, the panel

membership shall include representation from

the disciplines of toxicology, pathology, environmental biology, and related sciences. If a

vacancy occurs on the panel due to expiration

of a term, resignation, or any other reason,

each replacement shall be selected by the Administrator from a group of 4 nominees, 2 submitted by each of the nominating entities

named in this subsection. The Administrator

may extend the term of a panel member until

the new member is appointed to fill the vacancy. If a vacancy occurs due to resignation,

or reason other than expiration of a term, the

Administrator shall appoint a member to

serve during the unexpired term utilizing the

nomination process set forth in this subsection. Should the list of nominees provided

under this subsection be unsatisfactory, the

Administrator may request an additional set

of nominees from the nominating entities. The

Administrator may require such information

from the nominees to the advisory panel as

the Administrator deems necessary, and the

Administrator shall publish in the Federal

Register the name, address, and professional

affiliations of each nominee. Each member of

the panel shall receive per diem compensation

at a rate not in excess of that fixed for GS–18

of the General Schedule as may be determined

by the Administrator, except that any such

member who holds another office or position

under the Federal Government the compensation for which exceeds such rate may elect to
§ 136w TITLE 7—AGRICULTURE Page 254

receive compensation at the rate provided for

such other office or position in lieu of the

compensation provided by this subsection. In

order to assure the objectivity of the advisory

panel, the Administrator shall promulgate

regulations regarding conflicts of interest

with respect to the members of the panel. The

advisory panel established under this section

shall be permanent. In performing the functions assigned by this subchapter, the panel

shall consult and coordinate its activities with

the Science Advisory Board established under

the Environmental Research, Development,

and Demonstration Authorization Act of 1978

[42 U.S.C. 4365]. Whenever the Administrator

exercises authority under section 136d(c) of

this title to immediately suspend the registration of any pesticide to prevent an imminent

hazard, the Administrator shall promptly submit to the advisory panel for comment, as to

the impact on health and the environment, the

action taken to suspend the registration of

such pesticide.

(2) Science Review Board

There is established a Science Review Board

to consist of 60 scientists who shall be available to the Scientific Advisory Panel to assist

in reviews conducted by the Panel. Members of

the Board shall be selected in the same manner as members of temporary subpanels created under paragraph (1). Members of the

Board shall be compensated in the same manner as members of the Panel.

(e) Peer review

The Administrator shall, by written procedures, provide for peer review with respect to

the design, protocols, and conduct of major scientific studies conducted under this subchapter

by the Environmental Protection Agency or by

any other Federal agency, any State or political

subdivision thereof, or any institution or individual under grant, contract, or cooperative

agreement from or with the Environmental Protection Agency. In such procedures, the Administrator shall also provide for peer review, using

the advisory panel established under subsection

(d) of this section or appropriate experts appointed by the Administrator from a current list

of nominees maintained by such panel, with respect to the results of any such scientific studies relied upon by the Administrator with respect to actions the Administrator may take relating to the change in classification, suspension, or cancellation of a pesticide. Whenever

the Administrator determines that circumstances do not permit the peer review of the results of any such scientific study prior to the

Administrator’s exercising authority under section 136d(c) of this title to immediately suspend

the registration of any pesticide to prevent an

imminent hazard, the Administrator shall

promptly thereafter provide for the conduct of

peer review as provided in this sentence. The

evaluations and relevant documentation constituting the peer review that relate to the proposed scientific studies and the results of the

completed scientific studies shall be included in

the submission for comment forwarded by the

Administrator to the advisory panel as provided

in subsection (d) of this section. As used in this

subsection, the term ‘‘peer review’’ shall mean

an independent evaluation by scientific experts,

either within or outside the Environmental Protection Agency, in the appropriate disciplines.

(June 25, 1947, ch. 125, §25, as added Pub. L.

92–516, §2, Oct. 21, 1972, 86 Stat. 997; amended

Pub. L. 94–140, §§2(a), 6, 7, Nov. 28, 1975, 89 Stat.

751, 753; Pub. L. 95–396, §23, Sept. 30, 1978, 92 Stat.

836; Pub. L. 96–539, §§1, 2(a), 4, Dec. 17, 1980, 94

Stat. 3194, 3195; Pub. L. 98–201, §1, Dec. 2, 1983, 97

Stat. 1379; Pub. L. 98–620, title IV, §402(4)(D),

Nov. 8, 1984, 98 Stat. 3357; Pub. L. 100–352, §6(i),

June 27, 1988, 102 Stat. 664; Pub. L. 100–532, title

VI, §§602, 605, title VIII, §801(n), Oct. 25, 1988, 102

Stat. 2678, 2679, 2683; Pub. L. 102–237, title X,

§1006(b)(1), (2), Dec. 13, 1991, 105 Stat. 1895; Pub.

L. 104–170, title I, §104, title II, §235, Aug. 3, 1996,

110 Stat. 1490, 1509.)

REFERENCES IN TEXT

The Poison Prevention Packaging Act, referred to in

subsec. (c)(3), is Pub. L. 91–601, Dec. 30, 1970, 84 Stat.

1670, as amended, which is classified principally to

chapter 39A (§1471 et seq.) of Title 15, Commerce and

Trade. For complete classification of this Act to the

Code, see Short Title note set out under section 1471 of

Title 15, and Tables.

References in subsec. (c)(4) to ‘‘section 136(q)(1)’’ was,

in the original, a reference to ‘‘paragraph 2(q)(1)’’ and

has been editorially translated as ‘‘section 136(q)(1)’’ as

the probable intent of Congress.

The Environmental Research, Development, and

Demonstration Authorization Act of 1978, referred to in

subsec. (d), is Pub. L. 95–155, Nov. 8, 1977, 91 Stat. 1257,

as amended. Provisions of the Act establishing the

Science Advisory Board are classified to section 4365 of

Title 42, The Public Health and Welfare. For complete

classification of this Act to the Code, see Tables.

AMENDMENTS

1996—Subsec. (a)(1). Pub. L. 104–170, §235, inserted

‘‘, including public health pesticides,’’ after ‘‘various

classes of pesticides’’ and substituted

‘‘, nonagricultural, and public health pesticides’’ for

‘‘and nonagricultural pesticides’’.

Subsec. (d). Pub. L. 104–170, §104, designated existing

text as par. (1), inserted heading, and added par. (2).

1991—Subsec. (a)(3). Pub. L. 102–237, §1006(b)(1), substituted ‘‘the Administrator’’ for ‘‘he’’ before ‘‘shall’’.

Subsec. (b). Pub. L. 102–237, §1006(b)(1), substituted

‘‘the Administrator’’ for ‘‘he’’ before ‘‘determines’’.

Subsec. (c)(4). Pub. L. 102–237, §1006(b)(2), substituted

‘‘the Administrator’s’’ for ‘‘his’’.

Subsec. (c)(5). Pub. L. 102–237, §1006(b)(1), substituted

‘‘the Administrator’’ for ‘‘he’’ before ‘‘determines’’.

Subsec. (d). Pub. L. 102–237, §1006(b)(1), substituted

‘‘the Administrator’’ for ‘‘he’’ before ‘‘deems necessary’’ and before ‘‘shall publish’’.

1988—Subsec. (a). Pub. L. 100–532, §801(n)(1), amended

heading and directed that pars. (1) to (3) be aligned at

left margin with subsec. (c)(1), and that subpars. (A) to

(D) of par. (2) be indented, and in par. (3) substituted

‘‘Committee on Agriculture, Nutrition, and Forestry’’

for ‘‘Committee on Agriculture and Forestry’’.

Subsec. (a)(4). Pub. L. 100–532, §605, amended par. (4)

generally, substituting single unlettered par. (4) for

former subpars. (A) to (E).

Pub. L. 100–352, in subpar. (E), struck out ‘‘(i)’’ before

‘‘Any interested’’ and struck out cl. (ii) which provided

that notwithstanding any other provision of law, any

decision on a matter certified under cl. (i) of this subparagraph be reviewable by appeal directly to the Supreme Court of the United States, with such appeal to

be brought not later than 20 days after the decision of

the court of appeals.

Subsec. (d). Pub. L. 100–532, §602, substituted ‘‘section

shall be permanent’’ for ‘‘subsection shall terminate

September 30, 1987’’.
Page 255 TITLE 7—AGRICULTURE § 136w–1

Subsec. (e). Pub. L. 100–532, §801(n)(2), substituted

‘‘pesticide. Whenever’’ for ‘‘pesticide: Provided, That

whenever’’.

1984—Subsec. (a)(4)(E)(iii). Pub. L. 98–620 struck out

cl. (iii) requiring the court of appeals and the Supreme

Court to advance on the docket and expedite the disposition of any matter certified under cl. (i) of this subparagraph.

1983—Subsec. (d). Pub. L. 98–201 in fourth sentence,

inserted ‘‘under this subsection’’ after ‘‘submitted’’; in

eighth sentence, provided for utilization of a system of

staggered terms of appointment and substituted ‘‘7’’

and ‘‘6’’ for ‘‘seven’’ and ‘‘six’’, respectively, and inserted ninth through fourteenth sentences respecting

basis for selection of members, multidisciplinary representation, appointments to fill vacancies, extension

of term pending filling of vacancies, appointment for

unexpired term, and request for additional set of nominees from nominating entities; and in present eighteenth, formerly twelfth sentence, extended termination

date to Sept. 30, 1987, from Sept. 30, 1981.

1980—Subsec. (a)(4). Pub. L. 96–539, §4, added par. (4).

Subsec. (d). Pub. L. 96–539, §1, inserted provisions relating to composition of subpanels and submissions to

advisory panels respecting registration suspensions.

Subsec. (e). Pub. L. 96–539, §2(a), added subsec. (e).

1978—Subsec. (a)(1). Pub. L. 95–396, §23(1), required

regulations to take into account differences in environmental risk and appropriate data for evaluating such

risk between agricultural and nonagricultural pesticides.

Subsec. (a)(2)(B). Pub. L. 95–396, §23(2), required the

Administrator, before taking any final action, to consider certain factors bearing on the agricultural economy and to publish an analysis of the effect in the Federal Register.

Subsec. (d). Pub. L. 95–396, §23(3), (4), required the Administrator to solicit operating guidelines from the scientific advisory panel to improve scientific analyses

made by personnel of the Environmental Protection

Agency that lead to decisions by the Administrator in

carrying out this subchapter; extended requirement of

publication in the Federal Register to evaluations and

recommendations of the advisory panel; authorized creation of temporary subpanels on specific projects to assist in accelerating the work of the advisory panel; set

forth Sept. 30, 1981, as the termination date of the advisory panel; and required the panel to consult and coordinate its activities with the Science Advisory Board

established under section 4365 of title 42.

1975—Subsec. (a)(1). Pub. L. 94–140, §2(a)(1), (2), redesignated existing provision as subsec. (a)(1) and inserted

‘‘, in accordance with the procedure described in paragraph (2),’’ after ‘‘is authorized’’.

Subsec. (a)(2). Pub. L. 94–140, §2(a)(3), added par. (2).

Subsec. (a)(3). Pub. L. 94–140, §6, added par. (3).

Subsec. (d). Pub. L. 94–140, §7, added subsec. (d).

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.

Amendment by Pub. L. 100–352 effective ninety days

after June 27, 1988, except that such amendment not to

apply to cases pending in Supreme Court on such effective date or affect right to review or manner of reviewing judgment or decree of court which was entered before such effective date, see section 7 of Pub. L. 100–352,

set out as a note under section 1254 of Title 28, Judiciary and Judicial Procedure.

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 OF 1980 AMENDMENT

Pub. L. 96–539, §2(b), Dec. 17, 1980, 94 Stat. 3195, provided that: ‘‘The provisions of this section [amending

this section] shall become effective upon publication in

the Federal Register of final procedures for peer review

as provided in this section, but in no event shall such

provisions become effective later than one year after

the date of enactment of this Act [Dec. 17, 1980].’’

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.

REFERENCES IN OTHER LAWS TO GS–16, 17, OR 18 PAY

RATES

References in laws to the rates of pay for GS–16, 17,

or 18, or to maximum rates of pay under the General

Schedule, to be considered references to rates payable

under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, §101(c)(1)]

of Pub. L. 101–509, set out in a note under section 5376

of Title 5.

USER FEES

Pub. L. 101–508, title I, §1204(e), Nov. 5, 1990, 104 Stat.

1388–11, provided that: ‘‘Notwithstanding any provision

of the Omnibus Budget Reconciliation Act of 1990 [Pub.

L. 101–508, see Tables for classification], nothing in this

title or the other provisions of this Act shall be construed to require or authorize the Administrator of the

Environmental Protection Agency to assess or collect

any fees or charges for services and activities authorized under the Federal Insecticide, Fungicide, and

Rodenticide Act (7 U.S.C. 136 et seq.).’’

§ 136w–1. State primary enforcement responsibility

(a) In general

For the purposes of this subchapter, a State

shall have primary enforcement responsibility

for pesticide use violations during any period for

which the Administrator determines that such

State—

(1) has adopted adequate pesticide use laws

and regulations, except that the Administrator may not require a State to have pesticide use laws that are more stringent than

this subchapter;

(2) has adopted and is implementing adequate procedures for the enforcement of such

State laws and regulations; and

(3) will keep such records and make such reports showing compliance with paragraphs (1)

and (2) of this subsection as the Administrator

may require by regulation.

(b) Special rules

Notwithstanding the provisions of subsection

(a) of this section, any State that enters into a

cooperative agreement with the Administrator

under section 136u of this title for the enforcement of pesticide use restrictions shall have the

primary enforcement responsibility for pesticide

use violations. Any State that has a plan approved by the Administrator in accordance with

the requirements of section 136i of this title that

the Administrator determines meets the criteria

set out in subsection (a) of this section shall

have the primary enforcement responsibility for

pesticide use violations. The Administrator

shall make such determinations with respect to

State plans under section 136i of this title in effect on September 30, 1978, not later than six

months after that date.

(c) Administrator

The Administrator shall have primary enforcement responsibility for those States that