SEC.
6. [136d] ADMINISTRATIVE REVIEW; SUSPENSION.
(a)
CANCELLATION AFTER FIVE YEARS-
(1)
PROCEDURE.-The Administrator
shall cancel the registration of any pesticide at the end of
the five-year period which begins on the date of its registration
(or at the end of any five-year period thereafter) unless the
registrant, or other interested person with the concurrence of
the registrant, before the end of such period, requests in accordance
with regulations prescribed by the Administrator that the registration
be continued in effect. The Administrator may permit the continued
sale and use of existing stocks of a pesticide whose registration
is canceled under this subsection or subsection (b) to such extent,
under such conditions, and for such uses as he may specify if
he determines that such sale or use is not inconsistent with
the purposes of this Act and will not have unreasonable adverse
effects on the environment. The Administrator shall publish in
the Federal Register at least 30 days prior to the expiration
of such five-year period, notice that the registration will be
canceled if the registrant or other interested person with the
concurrence of the registrant does not request that the registration
be continued in effect.
(2)
INFORMATION.-If at
any time after the registration of a pesticide the registrant
has additional factual information regarding unreasonable adverse
effects on the environment of the pesticide, he shall submit
such information to the Administrator. |
(b)
CANCELLATION AND CHANGE IN CLASSIFICATION.-If it appears to the Administrator that a pesticide
or its labeling or other material required to be submitted does
not comply with the provisions of this Act or, when used in accordance
with widespread and commonly recognized practice, generally causes
unreasonable adverse effects on the environment, the Administrator
may issue a notice of his intent either-
(1) to cancel
its registration or to change its classification together with
the reasons (including the factual basis) for his action, or
(2) to hold a hearing to determine whether or not its registration
should be canceled or its classification changed. |
Such notice shall be sent
to the registrant and made public. In determining whether to
issue any such notice, the Administrator shall include among
those factors to be taken into account the impact of the action
proposed in such notice on production and prices of agricultural
commodities, retail food prices, and otherwise on the agricultural
economy. At least 60 days prior to sending such notice to the
registrant or making public such notice, whichever occurs first,
the Administrator shall provide the Secretary of Agriculture
with a copy of such notice and an analysis of such impact on
the agricultural economy. If the Secretary comments in writing
to the Administrator regarding the notice and analysis within
30 days after receiving them, the Administrator shall publish
in the Federal Register (with the notice) 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 notice and analysis
within 30 days after receiving them, the Administrator may notify
the registrant and make public the notice at any time after such
30-day period notwithstanding the foregoing 60-day time requirement.
The time requirements imposed by the preceding 3 sentences may
be waived or modified to the extent agreed upon by the Administrator
and the Secretary. Notwithstanding any other provision of this
subsection (b) and section 25(d), in the event that the Administrator
determines that suspension of a pesticide registration is necessary
to prevent an imminent hazard to human health, then upon such
a finding the Administrator may waive the requirement of notice
to and consultation with the Secretary of Agriculture pursuant
to subsection (b) and of submission to the Scientific Advisory
Panel pursuant to section 25(d) and proceed in accordance with
subsection (c). The proposed action shall become final and effective
at the end of 30 days from receipt by the registrant, or publication,
of a notice issued under paragraph (1), whichever occurs later,
unless within. that time either (i) the registrant makes the
necessary corrections, if possible, or (ii) a request for a hearing
is made by a person adversely affected by the notice. In the
event a hearing is held pursuant to such a request or to the
Administrator's determination under paragraph (2), a decision
pertaining to registration or classification issued after completion
of such hearing shall be final. In taking any final action under
this subsection, the Administrator shall consider restricting
a pesticide's use or uses as an alternative to cancellation and
shall fully explain the reasons for these restrictions, and shall
include among those factors to be taken into account the impact
of such final action on production and prices of agricultural
commodities, retail food prices, and otherwise on the agricultural
economy, and he shall publish in the Federal Register an analysis
of such impact.
(c)
SUSPENSION.-
(1)
ORDER.-If the Administrator
determines that action is necessary to prevent an imminent hazard
during the time required for cancellation or change in classification
proceedings, he may by order, suspend the registration of the
pesticide immediately. No order of suspension may be issued unless
the Administrator has issued or at the same time issues notice
of his intention to cancel the registration or change the classification
of the pesticide. Except as provided in paragraph (3), the Administrator
shall notify the registrant prior to issuing any suspension order.
Such notice shall include findings pertaining to the question
of "imminent hazard". The registrant shall then have
an opportunity, in accordance with the provisions of paragraph
(2), or an expedited hearing before the Administrator on the
question of whether an imminent hazard exists.
(2)
EXPEDITE HEARING.-If
no request for a hearing is submitted to the Administrator within
five days of the registrant's receipt of the notification provided
for by paragraph (1), the suspension order may be issued and
shall take effect and shall not be reviewable by a court. If
a hearing is requested, it shall commence within five days of
the receipt of the request for such hearing unless the registrant
and the Administrator agree that it shall commence at a later
time. The hearing shall be held in accordance with the provisions
of subchapter II of title 5 of the United States Code, except
that the presiding officer need not be a certified hearing examiner.
The presiding officer shall have ten days from the conclusion
of the presentation of evidence to submit recommended findings
and conclusions to the Administrator, who shall then have seven
days to render a final order on the issue of suspension.
(3)
EMERGENCY ORDER.-Whenever
the Administrator determines that an emergency exists that does
not permit him to hold a hearing before suspending, he may issue
a suspension order in advance of notification to the registrant.
In that case, paragraph (2) shall apply except that (A) the order
of suspension shall be in effect pending the expeditious completion
of the remedies provided by that paragraph and the issuance of
a final order on suspension, and (B) no party other than the
registrant and the Administrator shall participate except that
any person adversely affected may file briefs within the time
allotted by the Administrator's rules. Any person so filing briefs
shall be considered a party to such proceeding for the purposes
of section 16(b).
(4)
JUDICIAL REVIEW.-A
final order on the question of suspension following a hearing
shall be reviewable in accordance with Section 16 of this Act,
notwithstanding the fact that any related cancellation proceedings
have not been completed. Any order of suspension entered prior
to a hearing before the Administrator shall be subject to immediate
review in an action by the registrant or other interested person
with the concurrence of the registrant in an appropriate district
court, solely to determine whether the order of suspension was
arbitrary, capricious or an abuse of discretion, or whether the
order was issued in accordance with the procedures established
by law. The effect of any order of the court will be only to
stay the effectiveness of the suspension order, pending the Administrator's
final decision with respect to cancellation or change in classification.
This action may be maintained simultaneously with any administrative
review proceeding under this section. The commencement of proceedings
under this paragraph shall not operate as a stay of order, unless
ordered by the court. |
(d)
PUBLIC HEARINGS AND SCIENTIFIC REVIEW.-In the event a hearing is requested pursuant
to subsection (b) or determined upon by the Administrator pursuant
to subsection (b), such hearing shall be held after due notice
for the purpose of receiving evidence relevant and material to
the issues raised by the objections filed by the applicant or
other interested parties, or to the issues stated by the Administrator,
if the hearing is called by the Administrator rather than by
the filing of objections. Upon a showing of relevance and reasonable
scope of evidence sought by any party to a public hearing, the
Hearing Examiner shall issue a subpena to compel testimony or
production of documents from any person. The Hearing Examiner
shall be guided by the principles of the Federal Rules of
Civil Procedure in making any order for the protection of
the witness or the content of documents produced and shall order
the payment of reasonable fees and expenses as a condition to
requiring testimony of the witness. On contest, the subpena may
be enforced by an appropriate United States district court in
accordance with the principles stated herein. Upon the request
of any party to a public hearing and when in the Hearing Examiner's
judgment it is necessary or desirable, the Hearing Examiner shall
at any time before the hearing record is closed refer to a Committee
of the National Academy of Sciences the relevant questions of
scientific fact involved in the public hearing. No member of
any committee of the National Academy of Sciences established
to carry out the functions of this section shall have a financial
or other conflict of interest with respect to any matter considered
by such committee. The Committee of the National Academy of Sciences
shall report in writing to the Hearing Examiner within 60 days
after such referral on these questions of scientific fact. The
report shall be made public and shall be considered as part of
the hearing record. The Administrator shall enter into appropriate
arrangements with the National Academy of Sciences to assure
an objective and competent scientific review of the questions
presented to Committees of the Academy and to provide such other
scientific advisory services as may be required by the Administrator
for carrying out the purposes of this Act. As soon as practicable
after completion of the hearing (including the report of the
Academy) but not later than 90 days thereafter, the Administrator
shall evaluate the data and reports before him and issue an order
either revoking his notice of intention issued pursuant to this
section, or shall issue an order either canceling the registration,
changing the classification, denying the registration, or requiring
modification of the labeling or packaging of the article. Such
order shall be based only on substantial evidence of record of
such hearing and shall set forth detailed findings of fact upon
which the order is based.
(e)
CONDITIONAL REGISTRATION.-
(1) The Administrator
shall issue a notice of intent to cancel a registration issued
under section 3(c)(7) of this Act if (A) the Administrator, at
any time during the period provided for satisfaction of any condition
imposed, determines that the registrant has failed to initiate
and pursue appropriate action toward fulfilling any condition
imposed, or (B) at the end of the period provided for satisfaction
of any condition imposed, that condition has not been met. The
Administrator may permit the continued sale and use of existing
stocks of a pesticide whose conditional registration has been
canceled under this subsection to such extent, under such conditions,
and for such uses as the Administrator may specify if the Administrator
determines that such sale or use is not inconsistent with the
purposes of this Act and will not have unreasonable adverse effects
on the environment.
(2) A cancellation proposed under this subsection shall become
final and effective at the end of thirty days from receipt by
the registrant of the notice of intent to cancel unless during
that time a request for hearing is made by a person adversely
affected by the notice. If a hearing is requested, a hearing
shall be conducted under subsection (d) of this section. The
only matters for resolution at that hearing shall be whether
the registrant has initiated and pursued appropriate action to
comply with the condition or conditions within the time provided
or whether the condition or conditions have been satisfied within
the time provided, and whether the Administrator's determination
with respect to the disposition of existing stocks is consistent
with this Act. A decision after completion of such hearing shall
be final. Notwithstanding any other provision of this section,
a hearing shall be held and a determination made within seventy-five
days after receipt of a request for such hearing. |
(f)
GENERAL PROVISIONS.-
(1)
VOLUNTARY CANCELLATION.-A
registrant at any time may request that any of its pesticide
registrations be canceled or amended to delete one or more uses.
Before acting on such request, the Administrator shall publish
in the Federal Register a notice of the receipt of the request.
Thereafter, the Administrator may approve such a request.
(2)
PUBLICATION OF NOTICE.-A
notice of denial of registration, intent to cancel, suspension,
or intent to suspend issued under this Act or a notice issued
under subsection (c)(4) or (d)(5)(A) of section 4 shall be published
in the Federal Register and shall be sent by certified mail,
return receipt requested, to the registrant's or applicant's
address of record on file with the Administrator. If the mailed
notice is returned to the Administrator as undeliverable at that
address, if delivery is refused, or if the Administrator otherwise
is unable to accomplish delivery of the notice to the registrant
or applicant after making reasonable efforts to do so, the notice
shall be deemed to have been received by the registrant or applicant
on the date the notice was published in the Federal Register. |
(g)
NOTICE FOR STORED PESTICIDES WITH CANCELED OR SUSPENDED REGISTRATIONS.-
(1)
IN GENERAL.-Any producer
or exporter of pesticides, registrant of a pesticide, applicant
for registration of a pesticide, applicant for or holder of an
experimental use permit, commercial applicator, or any person
who distributes or sells any pesticide, who possesses any pesticide
which has had its registration canceled or suspended under this
section shall notify the Administrator and appropriate State
and local officials of-
(A) such possession,
(B) the quantity of such pesticide such person possesses, and
(C) the place at which such pesticide is stored. |
(2)
COPIES.-The Administrator
shall transmit a copy of each notice submitted under this subsection
to the regional office of the Environmental Protection Agency
which has jurisdiction over the place of pesticide storage identified
in the notice. |
(h)
JUDICIAL REVIEW.-Final
orders of the Administrator under this section shall be subject
to judicial review pursuant to section 16. |
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